2019 (5) TMI 1445 - AT - Income Tax

Penalty u/s 271(1)( c) - Addition u/s 40(a)(ia) - HELD THAT - Admittedly the quantum addition has been deleted by the ITAT. Thus penalty does not survive on this addition. The AO is directed to give the appeal effect to the Assessee in this regard. Addition of short term capital gain in the instant case it cannot be said that the assessee had withheld any relevant information regarding the short term capital gains from the AO. The claim of the assessee was based on the valuation report of an architect which was partly accepted by the Ld. CIT (A) also. There is no factual finding by the AO that the assessee had furnished any inaccurate particulars while bifurcating the value between land and buildings while computing short term capital gains. With regard to the provisions of section 271(1)(c ) of the Act pertaining to penalty RELIANCE PETROPRODUCTS PVT. LTD. 2010 (3) TMI 80 - SUPREME COURT has authoritatively laid down that making of a claim by the assessee which is not sustainable will not tantamount to furnishing inaccurate particulars. Penalty deleted - decided in favour of assessee.

Summary

Issues involved:
Penalty imposition under section 271(1)(c) of the Income Tax Act, 1961 for assessment year 2008-09 based on disallowances and additions made in the assessment.

Detailed Analysis:

1. Disallowance under section 40(a)(ia) and short term capital gain addition:
The assessee company, engaged in hotel business, filed a return declaring income of ?4,28,30,390. The assessment resulted in additions/disallowances under sections 40(a)(ia) and short term capital gain. Penalty proceedings under section 271(1)(c) were initiated, leading to a penalty of ?8,95,256. The ITAT deleted the disallowance under section 40(a)(ia) but upheld the short term capital gain addition. The penalty was imposed on the total addition, including the disallowance. The grounds of appeal challenged the penalty imposition.

2. Assessee's contentions:
The AR argued that since the disallowance under section 40(a)(ia) was deleted, no penalty should be imposed. Regarding the short term capital gain addition, it was contended that the notice for penalty was vague and did not specify the charge against the assessee. The AR emphasized that there was no concealment or inaccurate particulars, rather a disagreement on valuation, citing relevant case laws.

3. Revenue's response:
The Senior DR argued that the penalty notice did specify inaccurate particulars, and any defect was curable, not prejudicial. The objection raised by the assessee after a significant period was deemed untimely, and principles of natural justice were followed.

4. Tribunal's decision:
The Tribunal noted that the penalty did not survive on the disallowed amount under section 40(a)(ia). Regarding the short term capital gain addition, it was observed that the claim was based on a valuation report, partly accepted by the CIT (A). Citing the Supreme Court's ruling, the Tribunal held that making an unsustainable claim does not amount to furnishing inaccurate particulars. Relying on the judgment in CIT vs. Reliance Petroproducts Pvt. Ltd., the penalty was deleted, as the claim was not factually incorrect, and incorrect claim in law does not constitute inaccurate particulars.

This comprehensive analysis covers the issues, arguments, and the Tribunal's decision in the legal judgment concerning penalty imposition under the Income Tax Act, 1961.