2025 (4) TMI 1451 - AT - Income Tax

Penalty levied u/s 270A - disallowance of the deduction Claimed towards Health and Education Cess - HELD THAT - The claim for deduction was made based on existing legal interpretation available at the time of filing return. Judicial pronouncements clearly supported such a view. There is no allegation of concealment falsification or suppression of facts. Assessee voluntarily surrendered the claim immediately upon being made aware of the retrospective amendment. The facts were fully disclosed by the assessee during the course of assessment proceedings. It is relevant to note that both the Assessing Officer and the CIT(A) accepted that the case does not involve misreporting under section 270A(9) of the Act. Accordingly penalty was restricted to 50% of tax on underreported income. However once it is found that the claim was bona fide and all facts were disclosed even such penalty under section 270A(1) read with section 270A(2)(a) of the Act becomes unsustainable in law. Mere making of a claim based on a bona fide interpretation of law subsequently found unsustainable by retrospective amendment does not attract penalty under the Act. This position is fortified by case of Yahoo India (P.) Ltd. 2013 (3) TMI 704 - BOMBAY HIGH COURT wherein it was reiterated that where a claim is made transparently and based on legal interpretation even if not accepted it does not amount to furnishing inaccurate particulars or under-reporting. Thus relying on the principles laid down therein we hold that the assessee s claim towards deduction of cess made prior to the retrospective amendment and disclosed in full cannot trigger penalty under section 270A of the Act. Appeal of the assessee is allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal in the appeal are:

• Whether penalty under section 270A of the Income Tax Act, 1961 ("the Act") is leviable on the assessee for claiming deduction of Health and Education Cess, which was disallowed based on a retrospective amendment introduced by the Finance Act, 2022.
• Whether the assessee's bona fide claim, supported by judicial precedents prevailing at the time of filing the return, can be treated as under-reporting of income attracting penalty under section 270A.
• Whether the assessee's voluntary surrender of the deduction during assessment proceedings absolves it from penalty liability.
• The applicability and effect of section 155(18) of the Act, and related procedural rules (Rule 132), in the context of surrendering the claim and avoiding penalty, particularly considering the timeline of notifications and assessment order.
• The distinction between "under-reporting" and "misreporting" under section 270A, and the appropriate quantum of penalty.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Levy of penalty under section 270A for disallowance of Health and Education Cess deduction based on retrospective amendment

Relevant legal framework and precedents: Section 270A(1) empowers the Assessing Officer to levy penalty for under-reporting of income. Section 270A(2)(a) defines under-reporting as cases where assessed income exceeds returned income. Explanation 3 to section 40(a)(ii), inserted retrospectively from 01.04.2005 by the Finance Act, 2022, disallows deduction of cess payments. The Supreme Court decision in CIT v. K. Srinivasan and judicial precedents such as Sesa Goa Ltd. v. JCIT and Chambal Fertilizers & Chemicals Ltd. v. JCIT held education cess as allowable business expenditure prior to this amendment.

Court's interpretation and reasoning: The Tribunal noted that the assessee claimed deduction under section 37(1) based on the legal position prevailing at the time of filing the return. The retrospective amendment merely clarified the law and could not be invoked to impose penalty on a bona fide claim. The Tribunal emphasized that the claim was fully disclosed and supported by judicial rulings.

Key evidence and findings: The assessee's return disclosed the deduction; judicial precedents supported the claim; the Finance Act, 2022 amendment was retrospective; the assessee voluntarily surrendered the claim during assessment proceedings.

Application of law to facts: Since the claim was bona fide and disclosed, the Tribunal held that penalty under section 270A cannot be levied merely because of a subsequent retrospective amendment. The bona fide nature of the claim negates the element of concealment or misreporting.

Treatment of competing arguments: The Revenue argued that penalty was justified post amendment. The Tribunal rejected this, noting the amendment's retrospective nature and the bona fide claim. The Tribunal also relied on the principle from the Bombay High Court in CIT v. Yahoo India (P.) Ltd. that bona fide claims based on legal interpretation do not attract penalty.

Conclusions: Penalty under section 270A for disallowance of Health and Education Cess deduction, based on retrospective amendment, is not sustainable where the claim was bona fide and fully disclosed.

Issue 2: Effect of voluntary surrender of deduction during assessment proceedings on penalty liability

Relevant legal framework and precedents: Section 270A(6)(a) excludes from under-reported income any amount where the assessee offers a bona fide explanation and all material facts are disclosed. The assessee surrendered the claim voluntarily during assessment proceedings.

Court's interpretation and reasoning: The Tribunal found that voluntary surrender of the claim upon awareness of retrospective amendment demonstrated bona fide conduct. This mitigates penalty liability under section 270A.

Key evidence and findings: Letter dated 15.09.2022 surrendering the claim; full disclosure in return and assessment proceedings; no concealment or suppression.

Application of law to facts: The Tribunal applied section 270A(6)(a) and held that the surrendered claim cannot be treated as under-reported income attracting penalty.

Treatment of competing arguments: The Revenue contended penalty was justified despite surrender. The Tribunal rejected this, emphasizing bona fide disclosure and surrender.

Conclusions: Voluntary surrender of the disputed deduction during assessment proceedings precludes penalty under section 270A.

Issue 3: Applicability of section 155(18) and Rule 132 procedure in avoiding penalty

Relevant legal framework and precedents: Section 155(18) permits reassessment or re-computation of income upon application in prescribed form under Rule 132, which was notified effective 01.10.2022. The assessment order was passed on 25.09.2022, prior to notification.

Court's interpretation and reasoning: The Tribunal held that since the assessment was completed before notification of Rule 132, the assessee could not have availed the procedural remedy under section 155(18). The principle "Lex non cogit ad impossibilia" was applied to hold that the assessee cannot be faulted for not availing a remedy not available at the relevant time.

Key evidence and findings: Timeline of assessment order (25.09.2022) and Rule 132 notification (28.09.2022, effective 01.10.2022).

Application of law to facts: The procedural remedy under section 155(18) was not available at the time penalty was levied; therefore, non-availment cannot justify penalty.

Treatment of competing arguments: Revenue argued that assessee could have availed section 155(18) to avoid penalty. Tribunal rejected this on timing and procedural grounds.

Conclusions: The assessee's inability to apply under section 155(18) before assessment completion negates penalty justification based on non-availment of this remedy.

Issue 4: Quantum of penalty and distinction between under-reporting and misreporting

Relevant legal framework and precedents: Section 270A(7) prescribes penalty at 50% of tax on under-reported income; section 270A(9) prescribes 200% penalty for misreporting. CIT(A) reduced penalty from 200% to 50% treating the case as under-reporting.

Court's interpretation and reasoning: The Tribunal agreed with CIT(A) that the case did not involve misreporting but under-reporting. However, since the claim was bona fide and fully disclosed, even penalty for under-reporting under section 270A(1) and (2)(a) is unsustainable.

Key evidence and findings: No concealment or suppression; full disclosure; bona fide claim.

Application of law to facts: The Tribunal held that bona fide claims do not amount to furnishing inaccurate particulars or under-reporting, thus no penalty is warranted.

Treatment of competing arguments: Revenue sought penalty; Tribunal relied on judicial precedent (Yahoo India) to negate penalty on bona fide claims.

Conclusions: No penalty under section 270A is sustainable where the claim is bona fide and fully disclosed, even if under-reporting is technically established.

3. SIGNIFICANT HOLDINGS

"Mere making of a claim based on a bona fide interpretation of law, subsequently found unsustainable by retrospective amendment, does not attract penalty under the Act."

"Where a claim is made transparently and based on legal interpretation, even if not accepted, it does not amount to furnishing inaccurate particulars or under-reporting."

"The assessee cannot be faulted for not availing the benefit of section 155(18) once the assessment was already finalized and penalty proceedings initiated. The subsequent availability of procedural remedy cannot retrospectively cure the defect or justify the imposition of penalty."

"Voluntary surrender of the claim immediately upon awareness of the retrospective amendment and full disclosure during assessment proceedings negates the imposition of penalty under section 270A."

Final determinations:

• Penalty under section 270A levied on the assessee for claiming deduction of Health and Education Cess, disallowed retrospectively, is deleted.
• The bona fide nature of the claim and full disclosure preclude penalty liability.
• The assessee's inability to apply under section 155(18) due to timing of notification negates penalty justification based on non-availment of this remedy.
• The case involves under-reporting and not misreporting; however, even penalty for under-reporting is unsustainable given the bona fide claim.