2019 (1) TMI 795 - AT - Income Tax

Penalty u/s 271(1)(c) - discrepancy between Form 26AS and Form 16 - assessment u/s 144 - Held that - With regard to salary, there is a difference between amounts as per Form No. 16 and Form No.26AS, since both are provided by the SBH, Hyderabad and the assessee has filed his return of income in accordance with Form No.16 issued by the employer of the assessee, by taking into account the amount mentioned in Form 26AS it cannot be said that the assessee has concealed amount or furnished inaccurate particulars of income. With regard to commission income the assessee has not disclosed the same in his return of income and also not offered any explanation. In our considered view, A.O. can initiate penalty only for the amount of commission which was not disclosed, can fall within the ambit of concealment of income . Therefore, we direct the A.O. to restrict the penalty to the tax sought to be evaded on the amount of commission. - Decided partly in favour of assessee

Issues:
1. Validity of initiation of penalty proceedings under section 271(1)(c) of the Income Tax Act.
2. Correct calculation of minimum penalty amount.
3. Discrepancy between Form 16 and Form 26AS regarding salary income.
4. Non-disclosure of commission income and imposition of penalty.

Analysis:

Issue 1: Validity of initiation of penalty proceedings under section 271(1)(c) of the Income Tax Act
The appellant contended that the initiation of penalty proceedings under section 271(1)(c) was not valid as the Assessing Officer did not strike off the inappropriate portion of the notice. The Tribunal, after considering the arguments and perusing the relevant documents, held that the delay of 4 days in filing the appeal was reasonable due to the circumstances explained by the assessee. Consequently, the Tribunal condoned the delay and proceeded to adjudicate the appeal on merits.

Issue 2: Correct calculation of minimum penalty amount
The appellant argued that the minimum penalty amount was not correctly calculated by the Assessing Officer. The Tribunal examined the facts and directed the Assessing Officer to restrict the penalty to the tax sought to be evaded on the amount of commission income that was not disclosed by the assessee. The Tribunal found merit in this argument and partially allowed the appeal on this ground.

Issue 3: Discrepancy between Form 16 and Form 26AS regarding salary income
The Tribunal observed a discrepancy between the amounts mentioned in Form 16 and Form 26AS regarding the salary income of the assessee. Since the assessee filed the return of income based on Form 16 issued by the employer, the Tribunal concluded that there was no concealment of income or furnishing of inaccurate particulars by the assessee in this regard. This discrepancy was considered in favor of the assessee.

Issue 4: Non-disclosure of commission income and imposition of penalty
Regarding the non-disclosure of commission income and the imposition of penalty, the Tribunal noted that the assessee did not disclose the commission income in the return of income and failed to provide any explanation. Consequently, the Tribunal held that the Assessing Officer could initiate penalty proceedings for the undisclosed commission income, as it fell within the scope of 'concealment of income.' The Tribunal directed the Assessing Officer to restrict the penalty to the tax evaded on the undisclosed commission income.

In conclusion, the Tribunal partially allowed the appeal filed by the assessee, considering the discrepancies in the calculation of penalty amount and the non-disclosure of commission income while addressing the validity of penalty proceedings and the salary income discrepancy between Form 16 and Form 26AS.

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