2013 (5) TMI 281 - AT - Income Tax

Penalty u/s 271(1)(c) - claim of long term capital gain - CIT(A) deleted the penalty observing that AO has not disbelieved the investment in the shares in the earlier years - AO has observed that there was no availability of cash for the purchases of shares & as shares were not routed through stock exchange therefore, the payment of STT is out of question and no exemption can be claimed under sec. 10(38) - Held that - The investment was duly disclosed in the balance sheet. Once the investment was accepted, it will amount to acceptance of genuineness of the transaction partly. According to CIT(A), the shares were purchased through account payee cheques which indicate that funds were available in the accounts of the assessee. Assessee before the CIT(Appeals) submitted that AO himself accepted in his report that the transactions in shares were conducted through the broker against whom either inquiry proceedings were in progress or who were suspended by the SEBI. Thus AO has clearly recognized the existence of the broker and if brokers were duping their clients or the brokers were not passing the tax collected from the clients to the government then how the assessee can be penalized. Thus, AO has adopted two contradictory versions as one treated the transaction as bogus and yet also reported that the transactions were conducted through the brokers. Thus CIT(Appeals) on an analysis of all these material arrived at a conclusion that assessee has given an explanation which, they might have failed to substantiate but their explanation was not proved to be false. It was also contended that if STT was not paid then exemption under sec. 10(38) can be denied to the assessee but Assessing officer cannot change the head of income i.e. from long term capital gain to unexplained receipts. Unaccounted gifts - Held that - With regard to the gifts the assessee has submitted all necessary documents i.e. disclosing the identity of the donor, disclosing the manner how gifts have been received. The addition was made on the ground that it is against the human probability. Additions qua agricultural income have been made on estimate basis by disbelieving the agricultural income partly. These amounts do not qualify for visiting the assessee with the penalty because AO has not proved that claim made by the assessee was false. In favour of assessee.

Summary

Issues Involved:
1. Deletion of penalty under section 271(1)(c) of the Income-tax Act, 1961.
2. Addition on account of claim of alleged Long Term Capital Gain.
3. Addition on account of transportation income.
4. Addition on account of claim of alleged gift.
5. Addition on account of unexplained investment.
6. Addition on account of claim of alleged agricultural income.

Issue-wise Detailed Analysis:

1. Deletion of Penalty under Section 271(1)(c):
The primary issue in these appeals is whether the penalty imposed under section 271(1)(c) of the Income-tax Act, 1961, for concealing income or furnishing inaccurate particulars, was rightly deleted by the Learned CIT(Appeals). The Tribunal noted that the penalty was imposed based on additions made during the assessment, which included long term capital gains and alleged gifts. The Tribunal examined whether the assessees had disclosed all material facts and if their explanations were bona fide, even if not substantiated.

2. Addition on Account of Claim of Alleged Long Term Capital Gain:
The Assessing Officer (AO) directed the assessees to produce evidence for their long-term capital gain claims, including share transfer certificates, evidence of transactions through the Kolkata Stock Exchange, availability of funds, bank account details, and broker accounts. The assessees provided contract notes, share certificates, D-mat accounts, and capital gain calculation sheets. The AO doubted the genuineness of the transactions, citing that the brokers involved were tainted and the share prices were artificially inflated. The CIT(Appeals) observed that the investments were disclosed in the balance sheet of the previous year, and the AO did not disbelieve the investment then. The CIT(Appeals) concluded that the assessees' explanations were not proven false, and thus, the penalty was not justified.

3. Addition on Account of Transportation Income:
This addition was made by the AO but subsequently deleted by the Learned CIT(Appeals) in her order dated 01.06.2011. The Tribunal did not focus on this issue as it was not contested further.

4. Addition on Account of Claim of Alleged Gift:
Three respondents received gifts of Rs. 5 lacs each from an individual claimed to be a family friend. The AO held the gifts to be non-genuine based on the improbability of such transactions. The CIT(Appeals) found that the assessees provided all necessary documents, including the identity of the donor and details of the transactions. The Tribunal agreed that the addition was based on the improbability of human behavior rather than concrete evidence of falsehood, and thus, the penalty was not warranted.

5. Addition on Account of Unexplained Investment:
This addition was confirmed by the Learned Commissioner in the revision proceedings under section 264 of the Act and remained unchallenged by the assessees. The Tribunal did not delve deeply into this issue as it was not a primary focus in the penalty deletion context.

6. Addition on Account of Claim of Alleged Agricultural Income:
Several respondents claimed agricultural income, which was partly disallowed by the AO on an estimated basis. The CIT(Appeals) and the Tribunal found that these disallowances were based on estimates and did not prove that the claims were false. Therefore, the penalty for these additions was deemed unjustified.

Conclusion:
The Tribunal upheld the deletion of penalties by the CIT(Appeals), stating that the assessees had disclosed all material facts and their explanations, though not substantiated, were not proven false. The penalties under section 271(1)(c) were deemed inappropriate as the additions were based on the conduct of brokers and improbability of transactions rather than concrete evidence of concealment or furnishing inaccurate particulars. The appeals by the revenue were dismissed.