9911796707
TMI Blog2007 (6) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... at penalty under section 271(1)(c)is not leviable on the assessee on the ground that the assessee did not have mens rea to conceal income and to avoid tax ? 2. Whether, on the facts and circumstances of the case, the Tribunal was right in following the decision of the Supreme Court in the case of Sir Shadilal Sugar and General Mills Ltd. v. CIT reported in [1987] 168 ITR 705 (SC) ? 3. Whether, on the facts and circumstances of the case, the Tribunal was right in deleting the penalty even though the assessee had filed inaccurate particulars and had failed to submit the accounts in respect of the issue pertaining to provision for bad debt under section 36(1)(viia) ?" 2. The facts leading to the above substantial questions of law are as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee filed an appeal to the Income-tax Appellate Tribunal ("the Tribunal" in short). The Tribunal allowed the appeal and set aside the orders of the lower authorities. Hence, the present appeal by the Revenue. 3. Learned senior standing counsel appearing for the Revenue submitted that the assessee had deliberately claimed the excess deduction. It is also submitted that there is a mistake committed by the assessee and the said mistake had been within the knowledge of the assessee. When this aspect was brought to the notice of the assessee while computing the assessment, the assessee had readily agreed that the mistake committed by him was due to misplacement of the decimal. There is a clear finding by the Assessing Officer tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,27,784 72,60,205 70,67,858 68,71,584 70,57,524 70,25,124 70,23,623 71,46,057 71,25,659 72,68,455 71,59,587 Total 8,54,20,251 Average 71,18,354 5. The assessee's total advance for the 12 months was only Rs. 8,54,20,251 and for none of the months the average has exceeded even Rs. 80 lakhs. The correct average was worked out and it was found to be only Rs. 71,18,354. When the mistake was brought to the notice of the assessee, the assessee agreed that there is a mistake and the same has crept in on account of misplacement of the decimals. The correct amount of rural advance will be Rs. 17,23,30,249 and the 4 per cent. provision on the same wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore interpreting the aforementioned provisions. Clause (c) of sub-section (1) of section 271 categorically states that the penalty would be leviable if the asses-see conceals the particulars of his income or furnishes inaccurate particulars thereof. By reason of such concealment or furnishing of inaccurate particulars alone, the assessee does not ipso facto become liable for penalty. Imposition of penalty is not automatic. Levy of penalty is not only discretionary in nature but such discretion is required to be exercised on the part of the Assessing Officer keeping the relevant factors in mind. Some of those factors apart from being inherent in the nature of penalty proceedings as has been noticed in some of the decisions of this court, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articulars." 6. In the present case, the Tribunal applied the principles enunciated in the Supreme Court judgment cited supra, and accepted the explanation offered by the assessee. It was found that the misplacement of a decimal cannot tantamount to concealment of particulars or furnishing inaccurate particulars and the computation was only due to misplacement of a decimal. On facts, the Tribunal correctly deleted the penalty levied under section 271(1)(c) of the Act. The reasons given by the Tribunal are based on valid materials and evidence and we do not find any error or legal infirmity in the order of the Tribunal so as to warrant interference. 7. Under these circumstances, no substantial questions of law arise for consideration of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
