2021 (11) TMI 497 - AT - Income Tax

Levy of penalty u/s 271(1)(c) - scope of debatable issue - disallowance of provision of interest on advances to related parties, disallowance of miscellaneous balances written off and finally belated payment of employees contribution towards PF and ESIC - HELD THAT - AO did not accept the manner in which the provision was debited to P L account. There was difference of opinion in the stand taken by assessee vis- -vis the Ld. AO in accounting the provision. The assessing officer rejected the treatment of provision. Belated payment of employees contribution, we note that this issue stands settled that in the event the payment is made before the due date of filing of returns under section 139(1) of the act, no disallowance could be made. Under such circumstances this issue is debatable and therefore levy of penalty is unwarranted. Interest advanced to related parties, the Ld. AO disallowed for the reason that, assessee did not elaborate the reasons to substantiate the interest charged at 12% on advances made to intergroup entities. Miscellaneous balances written off, the addition was made as no justification was provided. Hon'ble Supreme Court and various High Courts have held that writing off is a commercial decision by a businessman, which cannot be questioned by the authorities, unless it is found to be false or bogus. In present facts, there is no such observation by the Ld. AO. In our view the disallowances, made in the assessment order does not call for levy of penalty. The conditions necessary to support the levy of penalty in respect of the above items does not stand satisfied and therefore deserves to be deleted. - Decided in favour of assessee.

Summary

Issues Involved:
Assessment of penalty under Section 271(1)(c) of the Income Tax Act for disallowance of provision of interest on advances to related parties, disallowance of miscellaneous balances written off, and belated payment of employees' contribution towards PF and ESIC.

Analysis:

Issue 1: Disallowance of Provision of Interest on Advances to Related Parties:
The Appellant contested the disallowance of provision of interest on advances to related parties, arguing that the provision was debited to the P&L account, which the assessing officer did not accept. The Appellant failed to substantiate the interest charged at 12% on advances made to intergroup entities. However, the Tribunal noted that the disallowance was due to lack of explanation by the assessee and not because it was a false claim. Citing the judgment in the case of Manjunatha Cotton and Ginning Factory, the Tribunal concluded that the penalty under Section 271(1)(c) could not be initiated in this scenario.

Issue 2: Disallowance of Miscellaneous Balances Written Off:
The Ld. AO disallowed miscellaneous balances written off by the assessee as no specific justification was provided. However, the Tribunal observed that the authorities cannot question a businessman's commercial decision to write off balances unless it is proven to be false or bogus. Since there was no such finding by the Ld. AO, the Tribunal held that the disallowance did not warrant a penalty under Section 271(1)(c).

Issue 3: Belated Payment of Employees' Contribution towards PF and ESIC:
Regarding the belated payment of employees' contribution, the Tribunal noted that if the payment is made before the due date of filing of returns under section 139(1) of the Act, no disallowance could be made. As this issue was debatable, the Tribunal deemed the levy of penalty unwarranted in this regard.

Conclusion:
The Tribunal found that the disallowances made in the assessment order did not meet the conditions necessary to support the levy of penalty under Section 271(1)(c) for the issues raised. Consequently, the Tribunal allowed the appeal filed by the assessee, ruling in favor of the appellant and setting aside the penalty imposed by the Ld. AO and upheld by the Ld. CIT(A).

Judgment:
The appeal filed by the assessee was allowed, and the penalty under Section 271(1)(c) for the disallowances was deleted. The order was pronounced in the open court on 20th October 2021.