2017 (7) TMI 305 - AT - Income Tax

Penalty order u/s 271(1)(c) - Short term capital gain - Held that - There is no mechanism to determine the amount of tax sought to be evaded in this case, as the short term capital gain declared is accepted as zero , even though the carried forward losses got reduced in the computation. Since explanation-4 cannot be invoked, question of determining the amount of tax sought to be evaded does not arise in this case. Therefore, there can be no penalty u/s 271(1)(c) of the IT Act, where the returned income is accepted as such. - Decided in favour of assessee.

Summary

Issues:
Appeal against penalty order u/s 271(1)(c) of the IT Act - Condonation of one day delay in filing appeal - Recalculation of short term capital gains by the Assessing Officer (A.O) - Initiation of penalty proceedings for concealing/furnishing inaccurate particulars of income - Confirmation of penalty by Ld. CIT(A) exparte - Grounds raised by the Assessee - Additional ground regarding the validity of penalty u/s 271(1)(c) - Interpretation of Explanation 4 for calculating tax sought to be evaded - Applicability of penalty provision based on the facts of the case.

Analysis:
The appeal was filed against the penalty order imposed by the A.O under section 271(1)(c) of the IT Act, which was confirmed by the Ld. CIT(A) exparte due to the Assessee's non-appearance. The Assessee had admitted a total income but there was a discrepancy in the calculation of short term capital gains, leading to penalty proceedings. The A.O levied a penalty of ?1,10,000 based on the difference in short term capital gains. The Assessee contended that the penalty was unjustified as there was no intention to evade taxes and the discrepancy was due to an oversight.

The Assessee raised grounds challenging the penalty imposition, arguing that the addition to short term capital gains did not affect the tax liability due to sufficient brought forward losses. Additionally, the Assessee questioned the validity of the penalty notice under section 271(1)(c) for not specifying the nature of income escapement. The Assessee also highlighted that the returned income remained unchanged despite the recalculated short term capital gains.

The Tribunal analyzed the provisions of section 271(1)(c) and Explanation 4 to determine the applicability of the penalty. It was observed that as the returned income was accepted as such, there was no mechanism to calculate the tax sought to be evaded. Since the discrepancy did not impact the total income assessed, the Tribunal concluded that the penalty under section 271(1)(c) could not be levied based on the facts of the case.

The Tribunal further noted that the penalty notice issued by the A.O lacked specificity regarding the nature of income escapement, aligning with a previous decision on a similar issue. Ultimately, the Tribunal allowed the Assessee's appeal, canceling the penalty imposed under section 271(1)(c) of the IT Act. The additional ground raised by the Assessee was considered academic and not admitted. Consequently, the Assessee's grounds were upheld, and the appeal was allowed on 12th April 2017.