2017 (9) TMI 642 - AT - Income Tax

Penalty u/s.271(1)(c) - provision created for impairment in value of investment in security receipts - willfully furnished inaccurate particulars as such provision is not allowable as detection - revised return withdrawing provision created - bonafideness in the claim - Held that - In the present case on hand, on perusal of the facts available on record, we find that the assessee has created provisions in respect of value in investment in security receipts as per the statutory requirement of RBI guidelines. The assessee being an asset reconstruction company registered with RBI is required to value its security receipts. Accordingly, it has made a provision in its books of accounts towards NAV of security receipts at the end of the financial year as per the rating given by the rating agency. The assessee has filed a revised return withdrawing provision created in respect of impairment in value of investment in security receipts before completion of assessment by the Assessing Officer. Though the assessee has filed revised return withdrawing provision created for impairment in value of investment in security receipts, AO was of the opinion that the assessee has filed revised return after a specific question was asked to justify the expenditure debited in the profit and loss account. We do not find merit in the findings of the AO for the reason that the assessee has filed revised return although after issue of notice u/s.142(1), but much before the date of completion of assessment, therefore, the AO cannot hold that the assessee has filed revised return only after issue of notice u/s.142(1) of the IT Act 1961. Mere making a claim in respect of certain expenditure and disallowance of such expenditure by the AO during the course of assessment proceedings cannot be called as furnishing of inaccurate particulars of income in respect of such income. More so, when assessee has filed revised return voluntarily before completion of assessment withdrawing such provision created / expenditure debited in the profit and loss account. Therefore, we are of the considered view that the AO was incorrect in coming to the conclusion that the assessee has furnished inaccurate particulars of its income which warrants levy of penalty u/s. 271(1)(c) of the Act. - Decided in favour of assessee.

Summary

Issues Involved:
1. Whether the assessee concealed particulars of income or furnished inaccurate particulars of income.
2. Whether the revised return filed by the assessee was voluntary or a consequence of assessment proceedings.
3. Applicability of penalty under Section 271(1)(c) of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Concealment of Particulars of Income or Furnishing Inaccurate Particulars:
The Assessing Officer (AO) initiated penalty proceedings under Section 271(1)(c) on the grounds that the assessee had concealed particulars of income and furnished inaccurate particulars by creating a provision for impairment in the value of investments in security receipts amounting to ?1,81,25,000/-. The assessee argued that the provision was made in compliance with RBI guidelines and was disclosed in the financial statements. The AO, however, held that the revised return filed by the assessee, which withdrew the provision, was not voluntary but a result of detection during the assessment proceedings. The AO thus levied a penalty of ?61,60,688/-.

2. Voluntariness of the Revised Return:
The assessee contended that the revised return was filed voluntarily before the completion of the assessment to withdraw the provision created for impairment in investment in security receipts. The assessee maintained that the provision was initially made as per statutory requirements and disclosed in the financial statements. However, after consulting tax experts, it was realized that the provision was not allowable under the Income Tax Act, prompting the revised return. The AO, however, argued that the revised return was filed only after a specific questionnaire was issued, thus it could not be considered voluntary.

3. Applicability of Penalty under Section 271(1)(c):
The Tribunal examined whether the assessee's actions amounted to furnishing inaccurate particulars of income, warranting a penalty under Section 271(1)(c). The Tribunal noted that the provision was made following RBI guidelines and was disclosed in the financial statements. The Tribunal found that the assessee had a reasonable cause for making the provision and had voluntarily filed the revised return before the assessment was completed. The Tribunal cited several judicial precedents, including the Supreme Court's decision in CIT vs. Reliance Petro Products Pvt. Ltd., which held that merely making a claim, which is not sustainable in law, does not amount to furnishing inaccurate particulars of income.

The Tribunal concluded that the AO erred in holding that the assessee furnished inaccurate particulars of income. The Tribunal emphasized that the revised return was filed voluntarily and not after the detection by the AO. Therefore, the Tribunal directed the AO to delete the penalty levied under Section 271(1)(c).

Conclusion:
The Tribunal allowed the appeal filed by the assessee, holding that the revised return was voluntary and the assessee did not furnish inaccurate particulars of income. The penalty levied under Section 271(1)(c) was ordered to be deleted.