Manu Gawri

Section 270A of the Income Tax Act :- Encouraging assesse to disclose unreported income ?

The Finance bill 2016 bought a new array of sections to the income tax act that are section 270A and 270AA.

The law aims to provide a new procedure for charging penalty for concealment or understatement of income which intends to replace the existing array of sections that is 271(1)(c).

In the existing modus operandi of the income tax act the assessment of income for an assesse beings from section 139 where in the assesse file the return of income earned by them in the previous financial years under the different heads given by the law.

If incase the return of income is not filed by the assesse the law gives power to the Assessing officer to issue notice to the assesse directing him to file return of income under section 142.

Hence it is safe to conclude that the filing of return of income is necessary in assessment by the AO.

When return of income is filed by the assesse the AO begins to assess his income.

The main purpose of assessment of income by the department is to ensure that the assesse has not understated his income or overstated his loss. Incase such scenario exist the its said that the assesse has concealed the particular of income form the tax in order to escape the levy of income tax which is essentially defrauding the Central Government.

Section 147 Income tax Act gives the power to AO to assess as well as re assess the income when the AO has reason to believe that the income has escaped the assessment and charge it to tax.

Further the new section 270A provides that penalty shall be levied when there is under reporting of income and misreporting of income.

Subsection (1) says that the “assessing officer or the Commissioner (appeals) or the principal commissioner may, during the course of any proceedings under this act, direct that any person who has under reported his income shall be liable to pay a penalty in additions to tax. If any on the under reported income.”

Section 270A provides that if there is “under -reporting” of income under any of the said seven situations (stated in subsection 2), then penalty equal to 50% of the tax payable on the under-reported income would be levied. In the case of “under-reporting” of income, two rates for levy of penalty have been prescribed by the statue, as follows:-

  1. When the “under-reporting” is not because of misreporting, the penalty would be 50% of tax payable on the “under-reported” income.
  2. When the “under-reporting” is because of misreporting, the penalty would be 200% of the tax payable on the “under-reported” income.

Further the wordings of sub section 8 is “ notwithstanding anything contained in subsection 6 or subsection 7 where under reporting is in consequence of any misreporting thereof by any person, the penalty referred to in subsection (1) shall be equal to two hundred per cent of the amount of tax payable on under reported income”

On literal interpretation of this law the understanding gained is that where the under reporting is due to misreporting of the fact then the penalty of 200% is levied.

In a situation where in the assesse has disclosed all his income and the assessed income is equal to the returned income and the assesse has paid all the tax and duties and interest payable on it he has not under reported his income.Hence he is out of the purview of the section 270A(1).

And no penalty under subsection 9 shall be lavied as it narrates “where under reporting is in consequence of any misreporting thereof by any person”.

The law is not clear that if the assesse is not able to explain his source of income then weather it will be regarded as misreporting or not.

If we go by the literal interpretation there will be no penalty.

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  1. rajendran says:

    In AY 2016-17, I had carried out stock trading transactions on which I had incurred a net loss. In the original return of income I had shown the annual turnover under the head short term capital and sought carry forward of the loss to succeeding years. The assessing officer has now reassessed the trading portfolio and segregated all non deliver y based transactions as business transactions and determined a net profit and added the profit to the income thereby requiring additional tax. Please let me know
    1 the AO having taken out only the non delivery txn from out of the whole short term txn and assessed tax on the profit on that portion. Do I have the option to consider the full annual txns as business and revise the claim of the loss as speculative business loss instead of STC loss, if that is beneficial to me the coming year.
    2. Would the error in classification of the turnover be treated as concealment or misreporting inviting
    penalty provisions

    1. Manu Gawri says:

      Sir there will be no problem of tax provided that you have to declare this amount in your tax return and if there is any tax payable on it you have to pay tax on that amount

  2. Sivaswamy says:

    Under Sl No.(d) of sub-section (9), ‘recording of any false entry in the books of account’ is misreporting. Will ‘recording of entry without proper doc proof or evidence of income’ not amount to false entry leading to invoking 270A(9)?

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January 2021