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TMI Blog2023 (9) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... concealment of income or for furnishing inaccurate particulars then in such scenario, the assessing officer himself is not clear that for which limb he is levying a penalty and so such penalty need to be quashed - Decided in favour of assessee. - Shri Dr. A. L. Saini, Accountant Member For the Assessee : Shri Divyang Shah, CA For the Respondent : Shri Vinod Kumar, Sr. DR ORDER PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2012-13, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short the ld. CIT(A) ], National Faceless Appeal Centre (in short the NFAC ), Delhi, dated 30.01.2023, which in turn arises out of penalty order passed by Assessing Officer u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act ), dated 15.03.2018. 2. The grounds of appeal raised by the assessee are as follows: 1. Whether, on facts and in circumstances of the case and in law, Ld. Assessing Officer has erred in levying penalty of Rs. 65,050/- u/s 271(1)(c) of the act? Further, assessee craves leave to add, amend, alter or withdraw all or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned dated 15.03.2018 passed by the Assessing Officer, accordingly all the grounds of appeal stands dismissed. 5. In result, the appeal filed by the assessee is dismissed. 5. Aggrieved by the order of ld. CIT(A), the assessee is in appeal before this Tribunal. 6. I have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. Learned Counsel for the assessee submitted that assessee is an individual who is employee of State of Bank of India for assessment year (AY) 2012-13. During the AY. 2012-13, the assessee received Leave Travel Concession (in short LTC ) amounting to Rs. 2,10,518/- on payment of such LTC, TDS was not deducted by the State Bank of India (employer) because apparently such LTC in the hands of assessee was exempted under section 10(5) of the Act. Then after Form No.16, (TDS certificate for salary was also issued accordingly by the employer - State Bank of India) wherein LTC amount was shown as exempted. The Ld. Counsel contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculars of income and in the penalty order also, the Assessing Officer levied the penalty on account of furnishing inaccurate particulars of income . 11. The ld. DR further argued that since the penalty imposed on the State Bank of India (employer) under section 271C has been deleted by the Tribunal, does not mean that the penalty should be deleted in the hands of the assessee. Therefore, Ld. DR prays the Bench that the penalty confirmed by the ld. CIT(A) may be upheld. 12. I note that assessee is an employee of the State Bank of India and in case of assessee, there was a quantum addition for AY.2012-13, the said quantum addition on account of LTC of Rs. 2,10,518/- has been deleted by the Tribunal in assessee s own case vide ITA No. 1689/Ahd/2017, dated 04.10.2019, wherein the Tribunal held as follows: ISSUE No. 2 7. We have heard the argument advanced by the Ld. Representative of the parties and perused the record. Under this issue the assessee has claimed the TDS credit which has been deducted by revenue from employer of the Assessee i.e. State Bank of India by virtue of order dated 05.01.2015. Copy of order dated 05.01.2015 is on the file which speaks that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for not deducting tax, therefore, he has levied penalty of Rs. 1,70,220/- u/s. 271C of the act. 11. Aggrieved assessee has filed appeal before the Id. CIT(A). The Id. CIT(A) has sustained the penalty levied by the Joint CIT on the ground that section 10(5) r.w.s. 2(b) no way provides that assessee is at liberty to claim exemption out of his total package spent on overseas travel and part of journey within India. 12. We have heard the rival contention and perused the material on record carefully. The assessing officer has levied the aforesaid penalty for non-deducting of tax on foreign component of LFC/LTC which was not exempt u/s. 10(5) of the act. During the course of penalty proceedings, the assessee has failed to file any explanation regarding non-deduction of tax from the amount reimbursed in respect of foreign compensation of LFC/LTC. However, during the course of appellate proceedings before ld. CIT(A) the assessee filed detailed submission that the bank was under bona fide belief that where the journey undertaken by an employee involved foreign but the destination is in India the employee is entitled to exemption u/s 10(5) of the Act. The assessee has referred to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y order dated 15/03/2018 wherein the Assessing Officer has mentioned as under. 4. Considering the facts and circumstances and in view of the above discussion, I am satisfied to hold that the assessee has concealed his income by furnishing inaccurate particulars of income and therefore I am satisfied that this is a fit case for levy of penalty u/s. 271(1)(c) of the Act. The minimum penalty leviable comes to Rs. 65,050/- as against maximum penalty leviable of Rs. 1,95,150/-. 16. Thus, perusal from the above stated para, it is very much clear that assessing officer has not specified that penalty is either levied for furnishing inaccurate particulars of income or for concealing the income. The assessing officer himself is not clear that penalty is either levied for concealment of income or for furnishing inaccurate particulars then in such scenario, the assessing officer himself is not clear that for which limb he is levying a penalty and so such penalty need to be quashed. The reliance can be placed on the following judicial pronouncements: i) CIT v. Whiteford India Ltd. [2013] 38 taxmann.com 15 (Guj.) ii) New Sorathin Engg. Co. v. CIT [2006] 155 taxman 513 (Guj.). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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