2016 (5) TMI 527 - AT - Income Tax

Levy penalty u/s 271(1)(c) - disallowance of software expense - Held that - In order to attract the provision of section 271(1)(c) of the Income Tax Act, there has to be concealment of particulars of the income of the assessee secondly, the assessee must have furnish inaccurate particulars of his income, in the present case both the elements are missing as no information given by the assessee in the return was found to be incorrect or inaccurate. It is submitted that mere making an incorrect claim in law cannot tantamount to furnishing inaccurate particulars. As per the facts of the present case the disallowance made by CIT(A) is on account of difference of opinion between the assessee and the revenue as to the category in which the concerned expenses fall which certainly is a debatable in nature . It is settled law that when the disallowance made by AO/ CIT(A) itself is debateable in nature, no penalty of concealment for such debatable issue can be levied. - Decided in favour of assessee

Summary

Issues Involved:
1. Whether the CIT(A) erred in not considering the Delhi High Court's decision in the case of "CIT Vs. Zoom Communication (P) Ltd." for levying penalty under Section 271(1)(c) of the Income Tax Act, 1961.
2. Whether the order of the CIT(A) should be set aside and the AO's order restored.
3. General grounds for amendment or submission of additional grounds by the appellant.

Detailed Analysis:

Issue 1: Non-Consideration of Delhi High Court's Decision in "CIT Vs. Zoom Communication (P) Ltd."
The Revenue argued that the CIT(A) erred by not considering the Delhi High Court's decision in "CIT Vs. Zoom Communication (P) Ltd." for levying penalty under Section 271(1)(c) of the Income Tax Act, 1961. The CIT(A) had deleted the penalty on software expenses and upheld the penalty on the disallowed commission payment. The CIT(A) reasoned that the disallowance of software expenses was due to a difference of opinion on whether the expenses were capital or revenue in nature, which is a debatable issue. The CIT(A) cited several judicial precedents, including the Supreme Court's decision in "Reliance Petroproducts Pvt. Ltd.," which held that making an incorrect claim in law does not amount to furnishing inaccurate particulars. The Tribunal agreed with the CIT(A) that the issue was debatable and that penalty for concealment cannot be levied on such grounds. The Tribunal also found that the facts of the "Zoom Communication" case were distinguishable and not applicable to the present case.

Issue 2: Whether the Order of the CIT(A) Should Be Set Aside and the AO's Order Restored
The Revenue sought to set aside the CIT(A)'s order and restore the AO's order. The Tribunal, however, found that the CIT(A) had passed a judicious and well-reasoned order. The CIT(A) had carefully considered the facts and the applicable legal principles, including the distinction between capital and revenue expenditure and the absence of concealment or furnishing of inaccurate particulars by the assessee. The Tribunal upheld the CIT(A)'s findings and saw no reason to interfere with the order.

Issue 3: General Grounds for Amendment or Submission of Additional Grounds
The Revenue's general ground for the amendment or submission of additional grounds was noted but did not require separate adjudication as it was general in nature.

Conclusion:
The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s order. The Tribunal found that the CIT(A) had correctly applied the legal principles and judicial precedents, including the Supreme Court's decision in "Reliance Petroproducts Pvt. Ltd.," and that the facts of the "Zoom Communication" case were not applicable. The Tribunal agreed that the disallowance of software expenses was a debatable issue and that no penalty for concealment could be levied in such circumstances. The Tribunal also found that the CIT(A) had passed a well-reasoned and judicious order, and there was no basis to set it aside or restore the AO's order. The Revenue's appeal was thus dismissed.