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While scrutinizing the balance sheet of the assessee, during the course of assessment proceedings, it was noticed by the Assessing Officer that the assessee has taken loan of Rs. 3,57,428/- from M/s. Third Eye Qualitative Researchers Pvt. Ltd. of which she is a director having substantial interest. Accordingly, the said loan of Rs. 3,57,428/- was added as deemed dividend u/s. 2(22)(e) of the I.T. Act. The AO sought explanation u/s. 271(1)(c) r.w. Explanation-1. The assessee furnished detailed reply dt. 6.3.2009. The explanation of the assessee was rejected by AO who levied minimum penalty of Rs. 1,20,310/-.
The disallowance made by the Assessing Officer and sustained by the learned CIT(A) was challenged by the assessee before the ITAT in an appeal. The ITAT has decided the said appeal in favour of the assessee. Therefore, at present, when the addition itself has been set aside, there cannot be any case for levy of penalty for concealment of income.
It is observed that the assessee capitalized the expenses in relation to Cafeteria project as capital work in progress in earlier year. Such project did not take off and eventually the assessee claimed it as a business loss in the current year. It is clearly borne out from records that the assessee claimed deduction by disclosing complete particulars in this regard. Simply because the assessee did not succeed in the first appeal on this issue, it does not mean that penalty will be automatic.
It is found that surrender was made subject to no penalty vide letter of the assessee filed before the Assessing Officer during assessment proceedings, which clearly indicate that surrender was being made with a condition that no penal action will be made and to avoid further litigation and to buy peace and jurisdictional High Court decisions in the case of CIT v. Saran Khandsari Sugar Works [2000] 246 ITR 216/[2002] 120 Taxman 319 (All.) and CIT v. Mansa Ram & Sons [1977] 106 ITR 307 (All.) were in favour of the assessee and Commissioner (Appeals) has followed these decisions while deleting the impugned penalty. Moreover, department has not been able to bring on record any contrary superior Courts decisions in this regard. Therefore, there is no valid ground to interfere in the order passed by the Commissioner (Appeals) which is upheld and appeal of the department is dismissed being devoid of any merit. As a result, the appeal of the department is dismissed.
In the present case, the income computed as per the normal procedure was less than the income determined by legal fiction namely book profits under Section 115JB of the Act.
Mere erroneous claim in the absence of any concealment or furnishing of inaccurate particulars, is no ground for levying penalty, especially when there is nothing on record to show that the explanation offered by the assessee was not bona fide or any material particulars were concealed or furnished inaccurate .
The law stands very well settled by the Hon’ble Apex Court in the case of CIT vs. Reliance Petroproducts (P.) Ltd., (supra) that merely disallowing a claim of deduction raised by the assessee is not a ground to proceed u/s 271(1)(c). For penalty, it has to be either a case of furnishing of inaccurate particulars, concealment of income or at least the claim should have been proved to be a mala-fide one. In our considered opinion, the said eventualities do not exist in instant case. Therefore, the penalty in question does not hold ground.
Hon’ble Supreme Court in the case of CIT vs Reliance Petro Products Pvt. Ltd reported in 322 ITR 0158(SC). has clearly held that the return of income is the only document where the assessee can furnish his particulars of income, where as in the instant appeal, the appellant company has not disclosed the receipt of premium received on renunciation of rights in its return of income nor in the computation of income accompanied with the return of income. So penalty for Concealment of Income is imposable U/s. 271(1)(c) of the Income Tax Act, 1961.
Where no information given in the return is found to be incorrect or inaccurate, the assessee cannot be held guilty of furnishing inaccurate particulars. In order to expose the assessee to penalty, unless the case is strictly covered by the provision, the penalty provision cannot be invoked. By no stretch of imagination can making an incorrect claim tantamount to furnishing inaccurate particulars. There can be no dispute that everything would depend upon the return filed by the assessee, because that is the only document where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise. To attract penalty, the details supplied in the return must not be accurate, not exact or correct, not according to the truth or erroneous.
The Return of Income filed pursuant to a notice notice U/s. 148 is not ‘voluntary’ & it can be readily inferred that the assessee had not furnished full particulars of his true income and so reopening became necessary. The explanation that the income was offered to buy peace is not acceptable because it is a clear case of admission of not offering true income earlier.
