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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.
There is no finding recorded by assessing officer that any details supplied by the assessee in its return were found to be incorrect or erroneous or false. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars.
Indisputably, the ld. CIT(A) considered additional material in relation to two comparables and that of the assessee, which was not available before the TPO/AO. Apparently, the ld. CIT(A) did not follow the procedure laid down under Rule 46A of the IT Rules,1962 nor allowed any opportunity to the AO. The powers of the CIT(A) to admit additional evidence are not only in situations where the evidence could not be produced before lower authorities owing to lack of adequate opportunity but also in situations where the fresh evidence would enable the CIT(A) to dispose of the appeal or for any other substantial cause.
The admitted position is that the amount of Rs.30,63,310/- was shown by her in the return. That being the position, it cannot be said that there was any concealment. There is no dispute about the fact that the amount was correctly mentioned and therefore, there is also nothing inaccurate in the particulars furnished by her.
Kanchenjunga Advertising P. Ltd. Vs. CIT (Delhi HC)- It is a well settled position that assessment proceedings and penalty proceedings are different in nature and that the findings given in the assessment proceedings, though may constitute good evidence, cannot constitute conclusive evidence for the purposes of levying penalty. (please see CIT Vs. Anwar Ali (1970) 76 ITR 696, CIT v. Khoday Eswarsa and Sons ( 1970) 83 ITR 369, and Anantharam Veerasinghaiam & Co. Vs. CIT (1980)123 ITR 457).
Chadha Sugars Pvt. Ltd Vs. ACIT (ITAT Delhi) – The facts are that the assessee claimed an expenditure of Rs. 7,80,500/-, being the fees paid to Registrar of Companies for raising authorized capital. It is the admitted position of law that the expenditure is not revenue in nature and, therefore, it is not deductible in computing the total income. It is also the admitted fact that two decisions of the Supreme Court, adverse to the assessee, held field when the return was filed.
P.V. Ramana Reddy vs. ITO (ITAT Hyderabad) – Assessing Officer is vested with a discretionary power to levy or not to levy any penalty in a deserving case. In the case of Hindustan Steel Ltd Vs. State of Orissa (83 ITR 26) (SC), held that penalty should not be imposed merely because it is lawful to do so. The Assessing Officer has to exercise his discretion judiciously. If an assessee files the revised return though at a later stage or disclosed true income, penalty need not be levied. No doubt, merely offering additional income will not automatically protect the assessee from levy of penalty but in a given case where the assessee’s case, came forward with additional income though after deduction on account of that the assessee was not in a position to explain properly,
Thomas Garbarek Vs. DCIT (ITAT Pune) – ITAT held that penalty under section 271(1)(c) of the Act should not be leviable where the assessees have been able to establish their bonafide and innocence. A mere omission or negligence would not constitute a deliberate act of suppression of income so as to trigger levy of penalty, unless there is a direct attempt to hide an income from the knowledge of the income tax authorities. In particular relevance to assessees is the observation of the Tribunal that ‘bona fide belief can also be substantiated by circumstantial evidence when possibility of documentary evidence cannot be expected’.
