2017 (11) TMI 1935 - AT - Income Tax

Penalty u/s. 271(1)(c) - change in head of income - HELD THAT - There is no change in the loss figures offered by the assessee in the return of income. The assessee offered the loss under the head capital gains which, in the opinion of Ld. AO, was assessable under the head business income - basic condition viz. furnishing of inaccurate particulars / concealment of particulars of income so as to attract the provisions of Section 271(1)(c) have remained unfulfilled in the present case. Therefore, penalty was not justified and the stand of Ld. CIT(A) was quite fair logical and hence, the same do not require any interference on our part. Revenue s appeal stands dismissed.

Summary

Issues: Revenue's appeal against deletion of penalty u/s 271(1)(c) by Ld. CIT(A) for AY 2009-10.

Analysis:
1. The revenue appealed against the deletion of penalty u/s 271(1)(c) by the Ld. CIT(A) for Assessment Year (AY) 2009-10. The quantum assessment for the impugned AY was conducted by the Ld. Assistant Commissioner of Income Tax-25(3), Mumbai, while the penalty was levied under section 271(1)(c). Despite notice, no one appeared for the assessee, leading to the appeal being disposed of based on the available material and after hearing the Ld. Departmental Representative (DR).

2. The revenue contested the deletion of penalty u/s 271(1)(c) by the Ld. CIT(A) and raised specific grounds of appeal. These grounds included arguments related to the erred deletion of penalty, the intention of the assessee to evade taxes, and the dismissal of the assessee's appeal by the Ld. CIT(A) himself for the same assessment year on the issue of treatment of share trading income as business income.

3. The facts leading to the case involved an assessee, a resident Hindu Undivided Family (HUF), earning Share Trading Income and Income from other sources. The Ld. AO assessed the assessee for the AY under section 143(3) and considered the Short Term Capital Loss and Long Term Capital Loss on Shares as assessable under the head Business Income, which was confirmed by the first appellate authority. Subsequently, penalty proceedings were initiated for furnishing inaccurate particulars, leading to the imposition of a penalty by the Ld. AO.

4. The Ld. CIT(A) ruled in favor of the assessee, citing judgments including one from the Bombay High Court, and concluded that penalty was not justified for a mere change of head of income. The revenue, aggrieved by this decision, appealed further. The Tribunal, after hearing both parties and examining the material on record, found that the penalty was imposed solely for a change in the head of income without any concealment of particulars. Therefore, the penalty was deemed unjustified, and the decision of the Ld. CIT(A) was upheld, resulting in the dismissal of the revenue's appeal.

5. In conclusion, the Tribunal dismissed the revenue's appeal against the deletion of the penalty under section 271(1)(c) for AY 2009-10, emphasizing that the penalty was not warranted as there was no concealment of particulars despite the change in the head of income.