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2016 (7) TMI 102 - AT - Income TaxPenalty u/s 271(1)(c) - Assessee has claimed the expenses of foreign travelling of both the directors who are husband and wife - Held that - the assessee has fully disclosed the particulars of claim which in no way can be termed as furnishing of inaccurate particulars and is a debatable point. - Levy of penalty set aside in view of the decision in the case of M/S Vistar Construction Pvt Ltd Vs DCIT 2012 (10) TMI 845 - ITAT, DELHI - Decided in favour of assessee.
Issues Involved:
1. Confirmation of penalty under Section 271(1)(c) of the Income Tax Act. 2. Disallowance of AIR discrepancy and foreign travel expenses. 3. Applicability of Explanation 1 to Section 271(1)(c). 4. Assessment of the nature of foreign travel expenses (business vs. personal). Issue-wise Detailed Analysis: 1. Confirmation of Penalty under Section 271(1)(c): The primary issue is the confirmation of penalty by the CIT(A) to the extent of 100% of the tax sought to be evaded, as opposed to the 200% levied by the AO, in respect of the disallowance of AIR discrepancy and foreign travel expenses. The AO had initially imposed a penalty of ?4,97,806, which was later rectified to ?4,38,568. The CIT(A) reduced this penalty to ?2,19,284, being 100% of the tax sought to be evaded. The Tribunal noted that the disallowance of expenses under such circumstances is not sufficient to levy a penalty, as the assessee had fully disclosed the particulars of the claim in its return of income. 2. Disallowance of AIR Discrepancy and Foreign Travel Expenses: The AO added ?79,680 based on AIR information related to short offering of hire income and disallowed foreign travel expenses of ?6,45,182. The AO treated the foreign travel expenses as non-business expenses, whereas the assessee claimed them as business expenses. The CIT(A) upheld the AO's decision, concluding that the foreign travel was a personal pleasure trip rather than for business purposes. The assessee failed to provide sufficient evidence to substantiate the business nature of the travel. 3. Applicability of Explanation 1 to Section 271(1)(c): The AO invoked Explanation 1 to Section 271(1)(c), which shifts the burden of proof to the assessee to rebut the presumption of concealment. The CIT(A) agreed with the AO, stating that the assessee failed to rebut the presumption raised under the explanation. However, the Tribunal found that the mere disallowance of expenses does not automatically lead to the levy of penalty, especially when the claim is made under a bona fide belief and is debatable. 4. Assessment of the Nature of Foreign Travel Expenses: The AO and CIT(A) concluded that the foreign travel expenses were not for business purposes but for personal pleasure, as the travel was booked through Thomas Cook, a travel agent known for organizing group tours. The assessee argued that the expenses were incurred for surveying new cranes in the international market and provided a board resolution and travel agency receipts as evidence. The Tribunal noted that the assessee's claim was not proven false or wrong, and the issue of admissibility of such expenses is debatable. The Tribunal referred to several judicial precedents, including CIT Vs Reliance Petro Products (P) Ltd, which held that merely making a claim that is not sustainable in law does not amount to furnishing inaccurate particulars of income. Conclusion: The Tribunal concluded that the assessee had fully disclosed the particulars of the foreign travel expenses and made the claim under a bona fide belief. The issue of whether the expenses were for business purposes is debatable, and the mere disallowance of such expenses does not warrant the levy of penalty under Section 271(1)(c). The Tribunal set aside the order of the CIT(A) and directed the AO to delete the penalty of ?2,19,284. The appeal of the assessee was allowed, and the order was pronounced in the open court on 8th June 2016.
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