9911796707
TMI Blog2019 (3) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 excluding the assessee from the purview of Section 80-P. Mistake in filing the return occurred - assessee lacked the services of professional chartered accountants can also not be accepted in as much as under Section 44-AB - HELD THAT:- The assessee was required to get its account audited by an accountant as defined in Section 288(2)-Explanation, i.e. chartered accountant within the meaning of Chartered Accountants Act, 1949. It is not a case where the assessee has claimed deductions under any head which had been disallowed by the revenue but is a case where the assessee had concealed its total taxable income and furnished inaccurate details in its return. The appellant/assessee was not able to establish his bonafides regarding the inaccurate particulars furnished in his return. The proceedings under Section 271(1)(c) of the Act were rightly initiated against the assessee and the penalty was also rightly imposed on him.- Decided against assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ticulars contrary to finding recorded by A.D. & CIT (A)?" The appellant-assessee is a cooperative bank registered under the Cooperative Societies Act, 1965 (hereinafter referred to as, 'Act, 1965) and is carrying on banking business in Mahoba and Hamirpur Districts with its Head Office at Mahoba (U.P.). The assessee is governed by the Banking Regulations Act, 1949. The assessee filed its return under the Act for the assessment year 2007-08 on 31st of October, 2007 showing its gross total income to be ₹ 20,16,000/-. The return was processed under Section 143(1) of the Act and was selected for scrutiny. Notices were issued to the assessee who submitted the details required in the assessment proceedings. During the assessment proceedings, it was noticed by the Assessing Officer (hereinafter referred to as, 'A.O.') that the assessee had claimed a tax credit in respect of advance tax of ₹ 12.24 lacs which had been included in the expenses of the assessee and were reflected under the account head 'other expenditure' and further that an amount of ₹ 52,24,042.46/- had been debited in the profit and loss account as loss from sale of or dealing with non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed accountants well versed with the provisions of the Act and the return was accordingly filed on the basis of profit and loss account as in the past and there was no concealment or furnishing of inaccurate particulars of income and in any case there was no personal benefit involved in the discrepancy in filing the return which was unintentional and was a bona fide mistake, therefore, no case for levy of penalty under Section 271(1)(c) of the Act was made out against the assessee. The aforesaid plea of the assessee-bank was not accepted by the appellate courts who vide their orders dated 23.12.2011 and 06.09.2012 dismissed the appeals filed by the assessee. Thus, the present appeal under Section 260-A of the Act. The counsel for the appellant-assessee has argued that while passing the impugned order, the Tribunal has not considered that the discrepancy in the return filed by the assessee was a bona fide mistake and there was no intention of the appellant to furnish inaccurate particulars of its income or to conceal its income and the aforesaid discrepancy was because the income of the assessee-bank in the preceding years was exempted under Section 80-P of the Act and the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed inaccurate particulars of [such income, or] ….. Explanation 1. - Where in respect of any facts material to the computation of the total income of any person under this Act, (A) such person fails to offer an explanation or offers an explanation which is found by the [Assessing Officer] or the Commissioner (Appeals)] [or the Commissioner] to be false, or (B) such person offers an explanation which he is [not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him,] then, the amount added or disallowed in computing the total income 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:" In Dilip N. Shroff (supra), the Supreme Court held that before a penalty could be imposed under Section 271(1)(c) of the Act, the entirety of the circumstances must reasonably point to the conclusion that the disputed amount represented income and that the assessee had consciously concealed the particulars of its inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with notices, concealment of income, etc. - (1) If the Assessing Officer or the Commissioner (Appeals) in the course of any proceedings under this Act, is satisfied that any person- (c) has concealed the particulars of his income or furnished inaccurate particulars of such income." A glance at this provision would suggest that in order to be covered, there has to be concealment of the particulars of the income of the assessee. Secondly, the assessee must have furnished inaccurate particulars of his income. Present is not the case of concealment of the income. That is not the case of the Revenue either. However, the learned counsel for Revenue suggested that by making incorrect claim for the expenditure on interest, the assessee has furnished inaccurate particulars of the income. As per Law Lexicon, the meaning of the word "particular" is a detail or details (in plural sense); the details of a claim, or the separate items of an account. Therefore, the word "particulars" used in the Section 271(1)(c) would embrace the meaning of the details of the claim made. It is an admitted position in the present case that no information given in the return wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nking business even though the said amount was not an expense but an appropriation of profit. It is also evident that even after notice was issued to the assessee under Section 143(2) of the Act, the assessee did not file any revised return to correct the omissions. The contention of the assesee in the courts below and before this Court was that the error in its return was because the assessee was excluded from the purview of Section 80-P of the Act w.e.f. 01.04.2007 and the assessee had been claiming benefit of Section 80-P of the Act in the previous assessment years. The said explanation cannot be accepted in view of the particulars given in the return filed by the assessee. A perusal of the return filed by the assessee, which according to the judgment of the Supreme Court in Reliance Petroproducts (supra) is the only document where the assessee could have furnished the particulars of his income, shows that in Schedule F (statement of total income) at Serial No. 6, the assessee had disclosed his gross total income as ₹ 20,16,002.20/- and did not claim any deductions under Chapter VI-A of the Act. It is pertinent to note that Section 80-P of the Act is a part of Chapter VI-A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
