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TMI Blog2022 (8) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... ort filed by the assessee along with return of income unequivocally stated that the provision for payment was not allowable under Section 40A(7) of the Act and held that the contents of the Tax Audit Report suggested that there was no question of the assessee concealing its income or furnishing any inaccurate particulars of its income. Hon ble Apex Court held that it was through a bona fide and inadvertent mistake, the assessee while submitting its return, failed to add the provision for gratuity to its total income. It was held that the imposition of penalty on the assessee, therefore, was not justifiable. The decision of the Hon ble Supreme Court in the case of Price Waterhouse Coopers Pvt Ltd (supra) is squarely applicable in the facts of the present case as discussed above and respectfully following the same, we cancel the penalty imposed by the Assessing Officer under Section 271(1)(c) - Decided in favour of assessee allowed. - ITA No. 1243/Ahd/2019 - - - Dated:- 3-8-2022 - SHRI P.M. JAGTAP, VICE-PRESIDENT AND MS. SUCHITRA R. KAMBLE, JUDICIAL MEMBER Assessee by : Shri Parimalsinh B. Parmar, AR Revenue by : Shri Ramesh Kumar, Sr. DR ORDER PER P.M. JA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 499/- in respect of loss on sale of fixed assets, which was debited to the Profit and Loss Account by the Appellant Company. The same was due to oversight of the Consultant who prepared the return of income, was not added back to the income while preparing the return of income. Since, this was a glaring mistake, the addition in respect of the same was made by the Ld. Assessing Officer and the Appellant Company did not even preferred an Appeal against the same. However, it may be noted that the same was a genuine mistake without any intention to avoid tax. We would like to state that said amount had already been shown in Tax Audit Report u/s 44AB at clause No. 21(a)(i), as Expenditure of Capital nature and there was no willful suppression or misrepresentation of facts by the appellant company. The appellant Company relies on the decision of Hon'ble Apex court in case of Price Water house Coopers Pvt. Ltd Vs. Commissioner of Income Tax (348 ITR 306) where Hon'ble Apex Court has held noted that .... there was no willful suppression of facts by the assessee, but that a genuine mistake or omission had been committed. The assessee filed a revised return on the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not added by the appellant. Therefore, the appellant has clearly furnished inaccurate particulars of income to that extent. As regard to appellant's argument that there was no intent to evade the tax, it has been clarified by Honourable Supreme Court in the case of Dharmendra Textile Processors [306 ITR 277] (2008) (SC) that penalty is a civil liability to compensate the revenue. Therefore, AO is not required to prove the intent. In view of the above, AO is directed to levy the penalty u/s. 271(1)(c) of the I.T. Act, 1961 for furnishing inaccurate particulars of income in respect of loss on sale of assets of Rs.3,35,499/-. In view of the above facts of the case, the penalty levied by the AO is confirmed. 5. Aggrieved by the order of the learned CIT(A), the assessee has preferred this appeal before the Tribunal. 6. The learned Counsel for the assessee reiterated before us the submission made before the authorities below that the loss on sale of assets debited in the profit and loss account had remained to be added back in the computation of income inadvertently. He invited our attention to the copy of profit and loss account placed at page no. 50 of the paper-book to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also imposed penalty under Section 271(1)(c) of the Act holding that it was a case of furnishing of inaccurate particulars of its income by the assessee. He rejected the explanation of the assessee that there was an inadvertent mistake in not adding back the amount in question on account of loss on sale of fixed assets in the computation of income on the ground that it was a case of a company and books of accounts were prepared and audited by professionals. The learned CIT(A) also agreed with the view of the Assessing Officer and confirmed the penalty imposed by him under Section 271(1)(c) of the Act. At the time of hearing before us, learned Counsel for the assessee has invited our attention to the profit and loss account of the assessee-company (copy placed at page No.50 of the paper-book) wherein the amount of Rs.3,35,499/- in question was debited by the assessee with the narration Loss on Sale of Fixed Assets . He has also invited our attention to the relevant portion of the Audit Report placed at page No.60 of the paper-book wherein the loss in question on sale of fixed assets of Rs.3,35,499/- was clearly stated as in the nature of capital expenditure. As rightly contended b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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