2016 (7) TMI 268 - AT - Income Tax

Penalty u/s 271(1)(c) - inaccurate particulars of income by debiting the expenses towards ROC fees to the P&L A/c - revenue or capital nature - Held that - Assessee has not explained as to why it made the claim for the expenditure in the return of income when the Hon ble Apex Court laid down the law in the case of Punjab State Industrial Development Corporation Ltd. (1996 (12) TMI 6 - SUPREME Court ) wherein the nature of expenditure claimed by the assessee was held to be capital. We fail to understand why the assessee chose to claim this expenditure as revenue, even though, the accounts were audited by the well known accountants. The law was laid down much before the return of income was filed. Hence, in our opinion, the assessee now cannot absolve itself from levy of penalty u/s 271(1)(c) in view of explanation 1 to section 271(1)(c) by giving an explanation during the assessment proceedings that it disclosed all particulars before the AO or that the claim made by the assessee was due to bonafide error. Now, assessee cannot argue before us that the Apex Court decision itself can be distinguishable simply because the different High Courts had expressed different opinion. Once, the Hon ble Apex Court laid down decision, it becomes the law of the land . Hence, the assessee comes within the purview of the explanation 1 of section 271(1)(c) of the Act for levy of penalty for furnishing of inaccurate particulars. Claim made by the assessee to be not due to a bonafide error because ex facie the claim made by the assessee was bogus. - Decided against assessee

Summary

Issues:
Penalty under section 271(1)(c) for furnishing inaccurate particulars of income and failure to provide explanation during assessment proceedings.

Analysis:
The case involved an appeal by the revenue against the order of the Commissioner of Income-tax(Appeals) regarding the assessment year 2008-09. The assessee company, engaged in property development, had increased its Authorized Share Capital incurring expenses towards ROC fees. The Assessing Officer (AO) disallowed this expenditure as capital expenditure, citing a Supreme Court decision. The AO initiated penalty proceedings under section 271(1)(c) for furnishing inaccurate particulars of income. The assessee claimed to have provided all necessary details but failed to substantiate the explanation during assessment proceedings. The AO levied a penalty, which was challenged before the CIT(A).

The CIT(A) canceled the penalty, citing a difference of opinion and no deliberate concealment of facts by the appellant. The revenue appealed this decision, arguing that the claim of ROC fees as revenue expenditure was deliberate, supported by various case laws. The assessee contended that they genuinely believed the claim was allowable, considering conflicting High Court decisions. The Tribunal observed that the nature of the expenditure had been clarified by the Supreme Court before the return was filed, and the assessee could not absolve itself from penalty under section 271(1)(c). The Tribunal set aside the CIT(A)'s order and restored the penalty imposed by the AO.

The Tribunal emphasized that the Supreme Court's decision established the nature of the expenditure, making the assessee liable for penalty under section 271(1)(c). The Tribunal noted the possibility of intentional misrepresentation in returns to avoid scrutiny. The assessee's failure to explain the claim for expenditure, despite the established legal position, led to the restoration of the penalty. The Tribunal disagreed with the CIT(A)'s reasoning based on a difference of opinion, emphasizing the legal precedent set by the Supreme Court. Consequently, the revenue's appeal was allowed, and the penalty was upheld.

In conclusion, the Tribunal upheld the penalty under section 271(1)(c) against the assessee for furnishing inaccurate particulars of income related to the claim of ROC fees as revenue expenditure, despite the established legal position on the nature of the expenditure as capital. The Tribunal highlighted the importance of adhering to legal precedents and rejected the CIT(A)'s decision based on a difference of opinion.