2020 (11) TMI 774 - AT - Income Tax

Penalty u/s 271AAA - search u/s 132 - assessee had offered additional income during the course of search being additional income declared in AY 2010-11 less the brought forward of unabsorbed short term capital losses - AO in disallowing the claim of set off of brought forward capital loss against the income declared - HELD THAT - When the claim of the assessee of adjusting the brought forward capital loss against the income declared pursuant to the search has been upheld by the Co-ordinate Bench of Tribunal and since the order of the Tribunal in quantum proceedings has attained finality, then in such a situation, we are of the view that the assessee was fully justified in reducing the unabsorbed short term brought forward capital loss against the income and on the resultant income, he was justified in paying the tax. Thus we do not agree with the view of the Revenue that there was shortfall in the payment of taxes on the brought forward losses resulting into assessee being liable for penalty u/s 271AA of the Act. We, therefore, set aside the order of AO. Thus the ground of the assessee is allowed.

Summary

Issues:
Levy of penalty under Section 271AAA of the Income Tax Act 1961 for non-declaration of additional income, adjustment of brought forward short term capital loss, and justification of penalty imposition.

Detailed Analysis:

1. Levy of Penalty under Section 271AAA:
The case involved a search and seizure operation under Section 132 of the Act where the assessee surrendered additional income of ?15.92 crores, out of which ?70 lakhs pertained to AY 2010-11 and was offered as additional income for that year. The assessee declared additional income of ?14,72,16,687 for AY 2011-12, adjusting for brought forward unabsorbed short term capital loss. The AO imposed a penalty of ?1,52,20,000 under Section 271AAA for not depositing tax on the difference of ?49,83,312. The assessee contended that no penalty was leviable as they had paid taxes on the surrendered income, citing an exception under Section 271AAA(2).

2. Adjustment of Brought Forward Short Term Capital Loss:
The dispute arose from the AO's contention that adjusting the brought forward short term capital loss amounted to retraction of income, leading to penalty imposition. However, the Tribunal in the quantum appeal held that the assessee was eligible to set off the brought forward loss against the income declared. The Tribunal found that the computation of income filed by the assessee was correct as per the provisions of the Income Tax Act, allowing for set off of short term capital losses carried forward.

3. Justification of Penalty Imposition:
The Tribunal, after considering the findings of the quantum appeal, concluded that the assessee was justified in reducing the unabsorbed short term brought forward capital loss against the income declared, as upheld by the Co-ordinate Bench. The Tribunal held that there was no shortfall in tax payment on the brought forward losses, thereby setting aside the AO's penalty order under Section 271AAA. The decision emphasized that the order of the Tribunal in quantum proceedings had attained finality, supporting the assessee's position and allowing the appeal.

In conclusion, the Tribunal allowed the appeal of the assessee, setting aside the penalty imposed under Section 271AAA, based on the justification of adjusting the brought forward short term capital loss against the declared income, as upheld in the quantum appeal.