2023 (7) TMI 601 - AT - Income Tax

Penalty u/s. 271(1)(c) - enhancement of assessment by CIT(A) - excess claim of indexed cost of acquisition - CIT(A) rejected the brokerage expenses paid by the assessee on the ground that PAN No. were not taken from the persons to whom the brokerage was paid in cash - HELD THAT - The expression 'has concealed the particulars of income' and 'has furnished inaccurate particulars of income' have not been defined either in section 271 or elsewhere in the Act, but notwithstanding the difference in the two circumstances, it is now well established that they lead to the same effect namely, keeping off a certain portion of the income from the return. The penalty u/s 271(1)(c) of the Act is leviable if the AO is satisfied in the course of any proceedings under this Act that any person has concealed the particulars of his income or furnished inaccurate particulars of such income. In the present facts of the case the Ld.CIT(A) has not made out a case where the assessee has filed any inaccurate particulars or concealed any income. Assessee has filed all relevant materials for determining the income in his hands. CIT(A) has not unearthed any details/ evidences that has lead to enhancement of income in the hands of the assessee. In fact the enhancement of income by the Ld.CIT(A) is due to disallowance made by the Ld.CIT(A) of the commission paid and the cost of improvement claimed by the assessee for the reason that the assessee did not collect the PAN of the persons to whom the payments were made. There is no doubted that the payments were made through banking channels. Merely because the assessee did not collect PAN details of the Payees, and the bills and vouchers of most of the payments, the disallowance was made. Thus assessee cannot be penalized either for concealment of particulars of income' or 'furnishing of inaccurate particulars of income'. Decided in favour of assessee.

Summary

Issues Involved:
1. Jurisdiction of CIT(A) in levying penalty under section 271(1)(c) of the Income Tax Act.
2. Enhancement of assessment and the corresponding jurisdiction to levy penalty.
3. Specific grounds for initiation of penalty under section 271(1)(c).
4. Validity of penalty for concealment of income or furnishing inaccurate particulars.
5. Disallowance of brokerage expenses and cost of improvement.
6. General grounds and overall request for quashing the impugned order.

Detailed Analysis:

Jurisdiction of CIT(A) in Levying Penalty:
The appellant argued that the CIT(A) erred in assuming jurisdiction to levy penalty under section 271(1)(c) of the Act. The order was claimed to be "bad in law, void ab initio, and without jurisdiction." The tribunal examined the jurisdictional authority of the CIT(A) and found no basis for the jurisdictional challenge.

Enhancement of Assessment and Corresponding Jurisdiction:
The appellant contended that there was no enhancement of assessment, thus CIT(A) had no jurisdiction to levy penalty. The tribunal noted that the CIT(A) had indeed enhanced the income by disallowing brokerage expenses and cost of improvement, which were not initially considered by the AO. However, the tribunal found that these disallowances were based on the appellant's failure to provide PAN details and relevant documentation.

Specific Grounds for Initiation of Penalty:
The appellant argued that the CIT(A) did not specify whether the penalty was for "concealment of income" or "furnishing inaccurate particulars of income." The tribunal emphasized that the penalty proceedings must clearly state the grounds for initiation. The tribunal found that the CIT(A) initiated penalty for both limbs but levied it only for concealment, which was inconsistent and thus invalid.

Validity of Penalty for Concealment or Furnishing Inaccurate Particulars:
The tribunal scrutinized whether the appellant had concealed income or furnished inaccurate particulars. The tribunal noted that the appellant had disclosed all relevant materials and that the disallowances were due to the absence of PAN details and supporting documents, not due to concealment or inaccuracy. The tribunal concluded that the appellant did not conceal income or furnish inaccurate particulars, making the penalty unjustifiable.

Disallowance of Brokerage Expenses and Cost of Improvement:
The tribunal examined the disallowance of brokerage expenses and cost of improvement. The CIT(A) disallowed these expenses due to the appellant's failure to provide PAN details and supporting documents. The tribunal found that the payments were made through banking channels and that the disallowances were technical in nature. Therefore, the tribunal ruled that such disallowances do not justify the penalty under section 271(1)(c).

General Grounds and Overall Request for Quashing the Order:
The appellant's general grounds and request for quashing the impugned order were considered. The tribunal partially allowed the appeal, deleting the penalty but upholding the disallowances made by the CIT(A).

Conclusion:
The tribunal deleted the penalty levied by the CIT(A) on the grounds that the appellant did not conceal income or furnish inaccurate particulars. The appeal was partly allowed, with the penalty being deleted but the disallowances upheld. The tribunal emphasized the importance of specifying the grounds for penalty and found the CIT(A)'s actions inconsistent with the findings. The order was pronounced in the open court on December 1, 2022.