2018 (4) TMI 1123 - AT - Income Tax

Penalty u/s 271(1)(c) - expense falls u/s 37 or section 35 - Held that - There is no doubt as to the nature of the expense and it is not the case of the Revenue that this particular expense could be capitalized. Therefore, at best, this expenditure had to be amortized for a period of 5 years which the assessee did not do and the assessee explains that in view of AS 26, they have debited this particular expense to the profit and loss account. We fail to understand how this explanation is not a bonafide one. We are unable to find that there is either any concealment of income or furnishing of inaccurate particulars thereof and it is only basing on the information furnished by the assessee in their financials but mistake committed by the assessee is detected. Mere disallowance of any expense does not amount to concealment of income or furnishing of inaccurate particulars thereof as is held by the Hon ble Apex Court in the case of Reliance Petro Products Ltd. (2010 (3) TMI 80 - SUPREME COURT) - Decided in favour of assessee

Issues:
1. Claiming incorporation expenses under the wrong section of the Income Tax Act.
2. Disallowance of claimed expenses leading to penalty proceedings under section 271(1)(c).
3. Dispute regarding concealment of income and furnishing inaccurate particulars.
4. Compliance with penalty notice requirements as per legal precedents.

Issue 1: Claiming incorporation expenses under the wrong section of the Income Tax Act:
The appellant, a joint venture company, claimed incorporation expenses under section 37 of the Income Tax Act instead of section 35A. The AO disallowed the expenses, leading to penalty proceedings under section 271(1)(c). The appellant argued that the claim was made under a bonafide belief and due to a mistaken impression, emphasizing that the expenses were not for acquiring assets but for legal and other purposes. The Tribunal noted the difference of opinion on whether section 37 or section 35A applied to the expenses.

Issue 2: Disallowance of claimed expenses leading to penalty proceedings under section 271(1)(c):
The AO disallowed the incorporation expenses claimed by the appellant and initiated penalty proceedings under section 271(1)(c). The CIT(A) confirmed the penalty, citing inaccurate particulars of income and concealment. The appellant contended that the penalty was not justified, emphasizing that the claim was made inadvertently. The Tribunal observed that the Revenue did not dispute the expenditure incurred by the appellant, highlighting a difference of opinion on the applicable section of the Act.

Issue 3: Dispute regarding concealment of income and furnishing inaccurate particulars:
The Revenue argued that the appellant's conduct amounted to concealment of income and furnishing inaccurate particulars. The Tribunal analyzed the nature of the expenses, noting that the appellant's explanation for claiming the expenses under section 37 was bonafide. It was observed that there was no active concealment of facts in the financial records of the appellant. The Tribunal concluded that disallowance of expenses did not amount to concealment of income or furnishing inaccurate particulars, referencing legal precedents.

Issue 4: Compliance with penalty notice requirements as per legal precedents:
The Tribunal examined the compliance of penalty notice requirements as per legal precedents, including the case of Manjunatha Cotton & Ginning Factory. The Tribunal referred to judgments by the Karnataka High Court and the Supreme Court, emphasizing the importance of specifying the grounds for penalty proceedings. It was held that the penalty notice in this case did not meet the necessary requirements, leading to the deletion of the penalty. The Tribunal directed the AO to delete the penalty and allowed the appeal of the assessee.

This detailed analysis of the judgment covers the issues related to the incorrect claim of expenses, penalty proceedings, dispute over concealment of income, and compliance with penalty notice requirements based on legal precedents.

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