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TMI Blog2010 (4) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has not taken any further step in this regard and has simply stated that it may be a computer mistake - this is a clear cut case of "furnishing of inaccurate particulars of income" on which penalty under section 271(1)(c) of the Act is exigible - Decided against the assessee - IT APPEAL NO. 1014 (MAD.) OF 2009 - - - Dated:- 23-4-2010 - N. BARATHVAJA SANKAR, HARI OM MARATHA, JJ. Tapas Kumar Dutta for the Appellant. R. Vijayaraghavan for the Respondent. ORDER Hari Om Maratha, Judicial Member. This appeal of the Revenue, for the assessment year 2004-05, is directed against the order of the learned Commissioner of Income-tax (Appeals), dated 27-2-2009 and emanates from a penalty order dated 28-6-2007 passed by the Assessing Officer under section 271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as "the Act" for short). 2. Briefly stated, the facts of the case are that the assessee-company had filed its return of income for the assessment year 2004-05 on 31-10-2004 declaring loss of Rs. 8,62,60,370 under regular computation and book profit of Rs. 10,81,45,235 under section 115JB of the Act. The tax payable under regular computation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 8,51,66,606, the figure deducted 'depreciation for income-tax purposes' should have been Rs. 27,91,30,101 instead of Rs. 10,87,96,889. The formula in Excel sheet is fed by human beings only and clearly subtraction operation has been fed by the operator and hence the resultant figure with brackets is impossible to occur. Also in Excel software, the default symbol for loss is minus sign and if anyone wishes to have brackets sign for loss, it has to be fed (programmed) in the formula manually. Hence the brackets symbol has been deliberately included around the profit figure 8,51,66,606 and shown as loss. The copy of memo of income is attached along with the penalty order. Here formulae represents either addition or subtraction of the two figures namely Rs. 19,39,63,495 and Rs. 10,87,96,889. So operating Excel formulae means either addition or subtraction. But the Excel software has been correctly programmed to do the subtraction operation and has arrived at the correct figure Rs. 8,51,66,606 but with the brackets which is impossible to happen in Excel sheet unless the brackets are deliberately included. Hence the explanation of the assessee "inadvertent error in operation Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or taxation in the profit and loss account, manipulation in the auditor's report in Form No. 29B, payment of advance tax preparation of memo of income to the filing of the return of income to pay less tax under section 115JB (minimum alternate tax). According to him, from the above facts, a deliberate furnishing of inaccurate particulars of income to pay less tax stands proved, therefore, the Assessing Officer has levied a penalty of Rs. 4 crores under section 271(1)(c) of the Act. The assessee assailed this penalty before the learned Commissioner of Income-tax (Appeals), who, vide his order dated 27-2-2009 has accepted the contention of the assessee that there was an inadvertent mistake of the person working on the computer while computing taxable income for this assessment year. He has also given weight to the reasoning that there is no loss of revenue to the Department. With like arguments, the learned Commissioner of Income-tax (Appeals) has deleted the entire penalty against which the Revenue is in appeal and has raised following grounds : "1. The order of the learned Commissioner of Income-tax (Appeals) is contrary to law and facts and circumstances of the case. 2.1 The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed." 5. As is clear from the above, the assessee can come out of the above obligation if the assessee offers an explanation which is not found to be false or he is able to substantiate the same. But in this case, the explanation offered by the assessee is itself proved to be false because the assessee has not taken any further step in this regard and has simply stated that it may be a computer mistake. The decision of the Hon'ble Madras High Court in the case of CIT v. Lakshmi Vilas Bank Ltd. [2008] 303 ITR 428 on which the learned authorised representative has placed reliance cannot help the assessee in this case because in that case, there was a mistake of misplacement of decimal. In that case there was a typographical mistake but in this case, even after pointing out the figure of tax evasion, the assessee has not rectified the same and has tried to bank up on other entries which explanation simply amount to beating around the bush. Likewise, the decision of the Hon'ble Supreme Court (sic) in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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