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TMI Blog2023 (8) TMI 1624X X X X Extracts X X X X X X X X Extracts X X X X ..... atis mutandis to all the appeals under consideration. 3. At the outset, we observe that there is 06 days delay in filling of appeal which is claimed to be occurred due to administrative exigency, hence the same is condoned. 4. Coming to the merit of the case we observe that the Assessee being a private limited company engaged in the business of trading in alloys, declared its total income of Rs.83,26,790/- by filing its return of income (original) on 21/11/2014. Subsequently, a search & seizure action under section 132(1) of the Income-tax Act, 1961 (in short, the Act) was conducted in the case of Shrem Alloys Pvt Ltd and others on 09/01/2018, wherein the Assessee's case was also covered. Therefore, notice under section 153A dated 06/02/2019 was issued to the Assessee by the DCIT, Central Circle 5(4), Mumbai, in response to which the Assessee filed its return of income under section 153A of the Act on 23/02/2019 declaring the same income of Rs.83,26,790/-. Vide assessment order dated 27/06/2019 under section 143(3) read with section 153A of the Act, income declared by the Assessee was accepted nad computed accordingly. 4.1 Subsequently the AO, acting on the information letter da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable cause for contravening the said provisions. Accordingly, I hold the assessee in default of failure to comply with the provisions of the Black Money (Undisclosed Foreign Income and Assets) and imposition of Tax Act, 2015 in respect of disclosure of foreign assets / foreign investment / financial interest in the schedule FA of the return of income. I, therefore, impose a penalty of Rs.10,00,000/- u/s 43 of the Black Money (Undisclosed Foreign Income and Assets) and imposition of Tax Act, 2015 on the assessee." 7. The Assessee being aggrieved, challenged the imposition of penalty before the Ld. Commissioner and reiterated its claim as made before the Assessing Officer. The Ld. Commissioner by considering the claim of the Assessee as well as findings of the Assessing Officer in the penalty order, ultimately deleted the penalty by holding that the Assessee has duly disclosed the investment in foreign subsidiary, in the return filed on 22/02/2019 in response to the notice dated 06/02/2019 under section 153A of the Act. The Assessee has disclosed the investment in M/s Shrem Global Limited in such return filed under section 153A of the Act, it cannot be held that there was non-disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y. 2012-13 itself and the same has been disclosed in the return of income for the A.Y. 2012-13 and 2013-14 as well and the said investment has duly been accounted for and has been disclosed in its books of account for the A.Ys 2012-13 to 2018-19. The Assessee, in support of its claim also submitted investment schedule for the relevant years. The Assessee, before the Ld. Commissioner also claimed that though the Assessee has not disclosed the investment in Schedule FA in its original return; however, it is a fact that it has duly disclosed the same in the return filed under section 153A of the Act, which is subjected to the provisions and rules as applicable in the case of a return furnished under section 139 of the Act and accordingly, a return under section 153A is as good as a return filed under section 139 of the Act. 9.3 The Ld. Commissioner by considering the claim of the Assessee and the provisions of section 153A and 139 of the Act and the peculiar facts that the Assessee has made necessary disclosure in 153A return of income, ultimately held that penalty under section 43 of BMI Act is not warranted for. 9.4 We have given thoughtful consideration again to the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. 9.7 Therefore, we have to see whether in this case, the relevant circumstances exist or not, for imposition of penalty. 9.8 For brevity, we are reproducing the chart qua details of disclosure of investment made by the Assessee in its return of income qua M/s Shrem Global Ltd: Details of disclosure of Investment in made in subsidiary M/s. Shrem Global Ltd. in return of income A.Y. Penalty levied u/s43 Amount of Investment as per financial (INR) Original Return u/s 139(1) Revised Return u/s 139(5} (If Any) Return filed u/s 153A Disclosure in Schedule 'FA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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