9911796707
TMI Blog2018 (7) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT(A) erred in stating that "in the notice issued u/s 271 (l)(c) of the Act the default has been clearly specified". b) Without prejudice to above : The order passed by CIT(A) is invalid & bad as it violates principles of natural justice. The order is passed without considering and dealing with written submission filed with him in its proper perspective. 2. On merits : The CIT(A) erred is passing the order on original grounds of appeal and not considering revised grounds of appeal filed on 28.12.2017 3. (a) CIT(A) erred in confirming penalty not accepting the contention that : i. Income & claim both are disclosed in return of income ii. Claim allowed by officer after due verification. b) The CIT(A) erred in not accepting the contention that, it is settled principle that what is known to the department cannot be considered as concealment. c) The CIT(A) erred in confirming the penalty stating that "The appellants contention that all details have been furnished while filing the return of income is not correct". 4. The CIT(A) erred in not considering facts that though proceedings u/s 263 itself is invalid in law on farts of the case, to buy mental peace and av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - on account of wrong deduction claim under section 54G of the Act. However, the AO in his assessment order passed u/s 143(3)/ 263 of the Act dated 30.08.2016 initiated the penalty proceedings u/s 271(1)(c) for furnishing inaccurate particulars of income. The AO subsequently issued a notice u/s 274 of the Act vide dated 30.08.2016 for levying penalty u/s 271(1)(c) of the Act on account of furnishing inaccurate particulars of income. The assessee in compliance to it, submitted that the deduction u/s 54G of the Act was claimed inadvertently and accordingly, the assessee agreed for the impugned addition before the learned Pr. CIT. The assessee has already paid the taxes for Rs. 25,91,680/- along with interest for Rs. 32,600/- on 15.03.2016 and 26.09.2016 respectively. Thus there should not be any question for levying the penalty under section 271(1)(c) of the Act. The assessee also submitted that all the necessary details about capital gain and its exemption u/s 54G were duly filed before the AO during the assessment proceedings u/s 143(3) of the Act. Therefore, there was neither any concealment of income nor furnishing inaccurate particulars of income deliberately. However, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not fulfilled in the instant case. During the assessment proceedings the assessee admitted to have made an error in claiming deduction u/s 54G of the Act. Accordingly, the AO has disallowed the claim of exemption u/s.54G of the Act. Thereafter penalty proceedings u/s.271(1)(c) of the Act was initiated. During the penalty proceedings the assessee has submitted that the incorrect claim u/s.54G in the return of income was the result of a genuine mistake on part of the assessee and that the assessee had accepted the mistake during the proceeding sunder the Act. The AO has rejected the submissions of the assessee and held that in a case where any particular filed in the return of income by the assessee found to be inaccurate, erroneous or false and which has an impact on total income return by the assessee. it would attract liability for penalty u/s.271(1)(c) for furnishing inaccurate particulars of income. Accordingly, the AO has levied penalty amounting to Rs. 22,62,000/- u/s.271(1)(c) of the Act for furnishing inaccurate particulars of the income by way of wrong claim of deduction u/s. 54G of the Act. 3.4. During the appellate proceedings the appellant has objected the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land situated in non-notified urban area for the purpose of section 54G of the Act. Further the new capital asset purchased is also situated at Ahmedabad and comes under territory of urban area of Ahmedabad, This clearly shows that the appellant has failed to fulfill both the conditions prescribed u/s.54G of the Act. In spite of that the appellant has claimed deduction while filing the return of income. In the present case, the assessee made a claim which is not only incorrect in law but is also wholly without any basis and in such a situation it would be difficult to say that the appellant would still not be liable to penalty u/s.271(1)(c) of the Act. In various judgments, it is established that whenever there is a difference between the returned income and the assessed income, there is inference of concealment. The onus is on the assessee to rebut the inference of concealment, In the instant case, the assessee has failed to do so. The appellant's contention that all details have been furnished while filing the return of income Ls not correct. The appellant's plea that the disallowance of claim of deduction merely on account of difference of opinion is not at all correct. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax with clear understanding that penalty proceedings would not be initiated. Paid Rs. 25,91,680/- on 15-03-2016. Order u/s 263 is dated 16-03-2016. Order u/s 143(3) r.w.s 263 is dated 30-08-2016. Submission On facts, when details are dearly disclosed, allowed by AO after due verification, it cannot be concealment or inaccurate particulars of income. May it be wrong claim or claim wrongly allowed but question of furnishing inaccurate particulars of income does not arise. 1. Entire income declared in Return of income. All facts are on record. Not concealed any material facts. Delhi ITAT- Tide Water Marine International - 97 TTJ 139 Ahmedabad ITAT-Rupam Mercantile Ltd 91 ITD 237/85 TTJ 609 Ahmedabad ITAT -Gujarat State Financial Services Ltd - 39 SOT 570 Ahmedabad ITAT-Abdu Rehman Mirza Family Trust Ahmedabad ITAT-SudhabenT. Parikh Guj. H.C. - Geeta Prints P. Ltd. 247 CTR 620 2. Disclosed/offered explanation - Merely on account of different opinion-No penalty Ahmedabad- ITAT-Karnavati Inf. P. Ltd. 193 Taxman 3 issue (XIII) Ahmedabad Guj State Fertilizers & Chemicals Ltd. 193 Taxman 26 (Digest) Delhi H.C. Bacardi 206 CTR 250 3. Even Claim is not susta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceeding before the ACIT/ DCIT and after due verification the claim was allowed after scrutiny by two Officers. The point came under discussion with the Pr. CIT, who explained to us regarding the disallowability of the claim. But then it was agreed, that if we pay the due taxes, then no penalty would be levied. So I genuinely accepted the error on my part and paid the due taxes, to buy peace of mind, even before the order was passed by the Assessing officer. In view of the bonafide belief as stated above, the claim was made. I have not filed any inaccurate particulars while making the claim. On the other hand, learned DR submission before us are as under: "Sub:- Rejoinder to assessee's submission dated 17.05.2018 regarding exemption u/s. 54G. During the course of hearing, in the above mentioned case your Honours have directed to the A.R. to give clarification regarding claim of exemption u/s. 54G and to justify assessee's real intention behind this claim. Assessee has made submissions in this regard and rejoinder to which is hereunder: 1. Assessee's running a business concern in the name of "Maffick Logistics" which is engaged in custom clearance and log ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as claimed inadvertently. Therefore, the assessee pleaded before the lower authorities not to levy the penalty u/s 271(1)(c) of the Act. However, the AO was pleased to levy the penalty on account of furnishing of inaccurate particulars of income u/s 271(1)(c) of the Act and the view of the AO was subsequently upheld by the learned CIT(A). The learned AR before us has challenged the penalty order on two counts; firstly, the notice issued u/s 274 of the Act is defective, and secondly, the mistake was committed by him inadvertently due to wrong interpretation of the law. There is no ambiguity that there was no specific charge mentioned by the AO in the notice issued u/s 274 of the Act whether it was levied on account of concealment of income or furnishing inaccurate particulars of income. But on perusal of the penalty order we note that the penalty was levied on account of furnishing inaccurate particulars of income. Therefore, we are of the view that the lower authorities was conscious while levying the penalty in the order u/s 271(1)(c) of the Act. Therefore, the penalty proceedings cannot be held invalid merely on the ground that the notice does not specify the specific charge fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. The case law relied on the learned AR, i.e. CIT vs. SSA's Emerald Meadows is not applicable to the instant facts of the case. The Hon'ble Supreme Court, in this case, has just dismissed the SLP, and therefore it cannot be said that the order of Hon'ble High Court got merged with the order Hon'ble Supreme Court. In this regard we find support & guidance from the judgment of Hon'ble Supreme Court in the case of Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust [1978] 3 SCC 119 (a three-Judge Bench's decision) wherein it was observed that dismissal of special leave petition by the Supreme Court by a non-speaking order of dismissal where no reasons are given does not constitute res judicata. All that can be said to have been decided by the Court is that it was not a fit case where special leave should be granted. It was held that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in the merger of the order impugned into the order of the Supreme Court. In the instant case there is direct judgment of the Hon'ble jurisdictional High Court in the case of Snita Transport Pvt Ltd. (supra) where it was ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease the Appellant-assessee from the mischief of penal proceedings. The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he had to be absolved from penalty. 9. We are of the view that the surrender of income in this case is not voluntary in the sense that the offer of surrender was made in view of detection made by the AO in the search conducted in the sister concern of the assessee. In that situation, it cannot be said that the surrender of income was voluntary. AO during the course of assessment proceedings has noticed that certain documents comprising of share application forms, bank statements, memorandum of association of companies, affidavits, copies of Income Tax Returns and assessment orders and blank share transfer deeds duly signed, have been impounded in the course of survey proceedings under Section 133A conducted on 16.12.2003, in the case of a sister concern of the assessee. The survey was conducted more than 10 months before the assessee filed its return of income. Had it been the intention of the assessee to make full and true disclosure of its income, it would have filed the return declaring an income inclusive of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
