2024 (8) TMI 542 - AT - Income Tax

Penalty u/s 271(1)(c) - assessee for voluntary surrender of income - non-admission of short-term capital gain in the original return of income - HELD THAT - When the appellant has voluntarily surrendered income in good faith to buy peace and to cooperate with the Department, the said voluntary surrender of income cannot be considered as concealment of income. AO in the present case had not discharged its burden of proving its concealment and had simply made a conclusion on the assessee for voluntary surrender of income in good faith and voluntary surrender does not fall under deemed concealment as provided in Explanation 5A to section 271(1)(c) and this principle is supported by the decision in the case of CIT vs. Suresh Chand Mittal 2001 (6) TMI 63 - SC ORDER Therefore, we are of the considered view that on this count also, penalty levied by the AO u/s 271(1)(c) cannot be sustained. We are of the considered view that the AO is erred in levy of penalty u/s 271(1)(c) by invoking the provisions of section 271(1)(c) and Explanation 5A provided therein. CIT (A) without appreciating the relevant facts has simply sustained the penalty levied by the AO - Thus, we set aside the order passed by the CIT (A) and direct the AO to delete the penalty levied u/s 271(1)(c). Assessee appeal allowed.

Issues Involved:
1. Erroneous order by CIT(A) on facts and in law.
2. Examination and consideration of replies during penalty proceedings.
3. Willful attempt to evade tax and concealment of income.
4. Levy of penalty under Section 271(1)(c) for concealment or furnishing inaccurate particulars of income.
5. Non-admission of short-term capital gain due to ignorance of law.

Detailed Analysis:

1. Erroneous Order by CIT(A) on Facts and in Law:
The assessee contested the CIT(A)'s order as erroneous both on facts and in law. The Tribunal reviewed the facts and found that the CIT(A) had not properly considered the relevant material and explanations provided by the assessee. The Tribunal emphasized that the CIT(A) failed to appreciate that the assessee had voluntarily admitted additional income to buy peace and cooperate with the Department, which cannot be construed as willful concealment of income.

2. Examination and Consideration of Replies During Penalty Proceedings:
The assessee argued that the Assessing Officer (AO) did not fairly examine and judiciously consider the replies submitted during the penalty proceedings. The Tribunal noted that the AO initiated penalty proceedings under Section 271(1)(c) based on documents found during a search operation. However, the Tribunal found that the incriminating material did not conclusively prove the receipt of cash over and above the documented sale consideration. The Tribunal concluded that the AO did not adequately consider the assessee's explanations and the nature of the seized documents.

3. Willful Attempt to Evade Tax and Concealment of Income:
The assessee contended that there was no willful attempt to evade tax and no concealment of income. The Tribunal observed that the additional income was voluntarily declared in the return filed under Section 153A, and there was no difference between the returned income and the assessed income. The Tribunal referenced the Gujarat High Court's decision in Kirit Dahayabhai Patel vs. ACIT, which held that returns filed under Section 153A should be treated as returns filed under Section 139 for penalty purposes. Therefore, since there was no assessed income over and above the returned income, the Tribunal concluded that there was no concealment of income.

4. Levy of Penalty Under Section 271(1)(c) for Concealment or Furnishing Inaccurate Particulars of Income:
The AO levied a penalty under Section 271(1)(c) based on the deemed concealment provision in Explanation 5A. The Tribunal examined the seized documents and found no reference to cash consideration. The Tribunal held that the voluntary admission of additional income by the assessee to buy peace could not be deemed as concealment. The Tribunal cited the Supreme Court's decision in CIT vs. Suresh Chandra Mittal, which supported the view that voluntary surrender of income in good faith does not constitute concealment. Consequently, the Tribunal directed the AO to delete the penalty.

5. Non-Admission of Short-Term Capital Gain Due to Ignorance of Law:
The assessee claimed that the non-admission of short-term capital gain in the original return was due to ignorance of the latest law positions. The Tribunal considered this explanation and noted that the additional income was declared voluntarily in the return filed under Section 153A. Given the voluntary nature of the declaration and the lack of incriminating evidence in the seized documents, the Tribunal concluded that the penalty for concealment was not justified.

Conclusion:
The Tribunal set aside the CIT(A)'s order and directed the AO to delete the penalty levied under Section 271(1)(c). The appeal filed by the assessee was allowed, and the stay application was dismissed as infructuous. The Tribunal emphasized that voluntary surrender of income in good faith to buy peace cannot be treated as concealment of income, and the AO had not adequately discharged the burden of proving concealment. The order was pronounced on 7th August 2024.

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