2019 (7) TMI 225 - AT - Income Tax

Rectification of mistake u/s. 254(2) - Levy of penalty u/s 271(1)(c) - attempt to infuse money into account through fraudulent penny stocks @ 10%, which was rightly brought to tax @ 30% by the AO - HELD THAT - We find that the ITAT has deleted the penalty by placing reliance upon the catena of case laws. It has not been submitted by the Revenue in the aforesaid submission as to how those case laws are not applicable. The Tribunal in its order had elaborately dealt with the reasoning for deleting the penalty. Furthermore, case laws referred by ITAT dealt with various issue and on the touchstone of which penalty levied was deleted. Now, by way of this Miscellaneous Application Revenue seeks review of the order of the Tribunal, which is not permissible in the garb of rectification of mistake u/s. 254(2). Accordingly, this Miscellaneous Application filed by the Revenue stands dismissed.

Summary

Issues:
Levy of penalty under section 271(1)(c) of the Income Tax Act.

Detailed Analysis:

Issue 1: Levy of Penalty under Section 271(1)(c)
The Appellate Tribunal, in the case concerning the levy of penalty under section 271(1)(c) of the Income Tax Act, dealt with the matter of a penalty amounting to ?35 lakhs. The Tribunal observed that the Assessing Officer (A.O.) rejected the claim of long term capital gain by charging it as income from other sources, citing the preponderance of probability. However, the Tribunal noted that the genuineness of the transaction was not disproved, even though it was unproved. Referring to relevant case laws, the Tribunal concluded that in such circumstances, the penalty under section 271(1)(c) cannot be imposed. The Tribunal also highlighted that a mere change in the head of income does not warrant a penalty, as established in legal precedents. Furthermore, the Tribunal emphasized that when a substantial question of law is admitted, the issue becomes debatable, and penalty under section 271(1)(c) cannot be levied. Consequently, the Tribunal set aside the penalty levied by the authorities below and directed its deletion.

Issue 2: Review of Tribunal's Decision
Subsequently, the Revenue filed a Miscellaneous Application contending that the Tribunal's decision to delete the penalty was unjustified. The Revenue argued that the transactions were pre-structured colorable transactions, and the Assessing Officer had correctly taxed them at a higher rate. However, the Tribunal dismissed the Revenue's application, noting that the decision to delete the penalty was based on a thorough analysis of relevant case laws. The Tribunal emphasized that the Revenue had not provided sufficient grounds to challenge the applicability of those case laws. Additionally, the Tribunal clarified that a review of its order through a Miscellaneous Application was not permissible under section 254(2) of the Act. Consequently, the Revenue's Miscellaneous Application was dismissed, upholding the deletion of the penalty.

In conclusion, the Appellate Tribunal's judgment in this case centered on the levy of penalty under section 271(1)(c) of the Income Tax Act. The Tribunal, after considering the facts, legal precedents, and submissions from both parties, concluded that the penalty was not sustainable based on the evidence and legal principles discussed. The Tribunal's decision to delete the penalty was upheld, emphasizing the importance of established case laws and the lack of grounds to challenge the Tribunal's reasoning.