Understanding Penalty under income tax with latest case laws

Penalty is one of the weapon which is now used by Income tax department (ITD) for each & every kind of addition they are making during the assessment. Further recently the weapon also used for transfer pricing documentation also. The handling of penalty issue should be handled in a very professional manner otherwise taxpayer will be under the catch of ITD.

Given below the summary of the few latest income tax cases in respect of penalty which will provide you some guidelines in respect of handling penalty cases before ITD.

• Assessee filed its return of income electronically. Assessing Officer made certain inquiry and found that assessee did not offer capital gain on sale of shares of Mumbai SEZ to tax. He, accordingly, brought to tax capital gain and levied penalty upon assessee for concealment of income. It was held that where assessee was under a bona fide belief that capital gains arising on sale of SEZ shares were exempt from taxation and application under section 10(23G) to that effect was pending with CBDT, levy of penalty for concealment of income was not justified. Refer, Skil Infrastructure Ltd. v. ACIT, 139 ITD 25 (Mum.)(Trib.).

• The assessee was engaged in the business of copyrights of motion pictures. The assessee received consideration on transfer of its ownership rights of the movie in the previous year relevant to the assessment but agreement was signed in next year. Addition was made on this account and penalty was initiated. It was held that the factual matrix of the case no where proves that the assessee had either concealed the income or furnished any inaccurate particulars. The fact that it had mentioned the consideration in the year of receipt itself proved its bona fide. It was further held that every instance of addition does not ispo facto led to a conclusion that the assessee was guilty of concealment as penalty proceedings were altogether different in nature. Refer, ITO v. Jain Associates, 19 ITR 824 (Mum)(Trib.).

• The assessee claimed depreciation on a building which was being used by the firm in which the assessee was a partner. In quantum proceedings it had been held that the assessee was not entitled to depreciation on the building as it was being used by the firm and not by the assessee. Imposition of penalty u/s. 271(1)(c) of the Act, is not akin to or like criminal proceedings and the question of mens rea or mala fides on the part of the assessee need not be examined and is not relevant. At the same time, it is not mandatory that in each case where addition or disallowance is made by the AO, penalty must and should be imposed. When an assessee establishes that he had acted bona fide and all facts and material were disclosed by him penalty should not be imposed. A wrong deduction claimed can amount to furnishing of inaccurate particulars. However, a distinction must be drawn between a false claim, which cannot be countenanced and claims which are made on the basis of legal provisions which are debatable and quite plausible. When a legal issue arises for consideration, which is debatable but the claim made by the assessee is not accepted, there is no jurisdiction to invoke the penalty provisions u/s. 271(1)(c). Divergent legal views on legal interpretation of a statute can take place, but it is not necessary that there should be uniformity or consensus of opinion on the aspects of law. Refer, Karan Raghav Exports P. Ltd. v. CIT, 349 ITR 112.

• The Assessing Officer has added a sum of Rs.11,000 to the income returned by the assessee as per the revised return. Sub-section (1B) of sec. 271 creates a fiction by which the satisfaction of the Assessing Officer is deemed to have been recorded in cases where an addition or disallowance is made by the Assessing Officer and a direction for initiation of penalty proceedings is issued. This provision is made effective retrospectively with effect from April 1, 1989. As the assessment order for the asst. year 1984-85 had been passed on March 27, 1987, prior to April 1, 1989, the revenue could not rely on sub section (1B) of sec. 271. The Assessing Officer should, before imposing penalty, record in the assessment order his satisfaction that the assessee had either concealed the income or furnished inaccurate particulars of income in his return. There was no finding in categorical terms in the assessment . order that the assessee had furnished inaccurate particulars or had concealed income. Appeal of assessee was allowed. Refer, Chennakesava Pharmaceuticals v. CIT, 349 ITR 196.

• Penalty for concealment under section 271(1)(c ) is leviable even where the assessed income is loss. (Followed CIT v. Gold Coin Health Food (P) Ltd. ( 2008) 304 ITR 308 (SC). Refer, CIT v. Unipol Chemicals Intermediates Ltd, 80 DTR 145.

• Levy of concealment penalty under section 271(1)(c ) is not justified if income not offered to tax due to “bona fide mistake”. Refer, CIT v. Sania Mirza, AP HC.

• When there is two views, penalty cannot be levied. Refer, CIT v.Pradeep Agencies Joint Venture, 349 ITR 477.

• Where the income of the assessee is exempt under section 10 (20) of the Act, the Assessee is not liable to audit under section 44 AB of the Act consequently, no penalty under section 271 B was leviable. CIT v. Market Committee, Sirsa, 80 DTR 213.

• The petitioner filed the annual information return with a delay of 202 days. In the absence of any satisfactory explanation for late filing of the annual information return, the authority imposed a penalty of Rs. 20,200 at the rate of Rs. 100 per day during which the default continued. On a writ petition :

• Held, dismissing the petition, that there was no illegality or perversity in the order and it was just and in accordance with the provisions of section 271FA of the Income-tax Act, 1961. No fundamental right or personal right of the petitioner was infringed. Otherwise too, the petitioner had an efficacious alternative legal remedy to challenge the order, but the petitioner did not challenge the order. The petitioner could not be permitted to invoke the extraordinary jurisdiction of the court under article 227 of the Constitution . Refer, State of Rajasthan v.Dy. CIT (CIB), 349 ITR 536(Raj) (High Court).

• Obligation to quote permanent account number is on deductee and not on deductor hence penalty imposed was cancelled. Refer, CIT(TDS) v.Superintendent of Police, 349 ITR 550.

• When no valid return filed within time allowed under section 139 or notices issued under section 142 then Entire assessed income to be considered as concealed income. Refer, T. V. Magaadevan v. Deputy CIT (Chennai).

• Surrender of income without explanation attracts penalty. Refer, CIT v. MAK Data Ltd.

• An amount was Rs 10.81 lakhs was paid to PM (P) Ltd which was assessees sister concern. These payments were made through a debit note raised at the close of the year. Tribunal has given the finding that no such amounts were paid. This finding of Tribunal was accepted by assessee . On appeal by the assessee against the confirmation of penalty the court held that where Tribunal had reached a finding of fact that appellant had filed inaccurate particulars regarding its income by showing false/exaggerated expenses, it would be concluded that there was a concealment of income on part of appellant, leading to imposition of penalty under section 271(1)(c) upon appellant .Appeal of assessee was dismissed. Refer, Sanghvi Swiss Refills (P.) Ltd. v. ACIT, 81 DTR 40/ 212 Taxman 66 (Mag.) (Bom.).

• Assessee succeeded to business of a partnership firm by way of family settlement. He claimed set off of losses of erstwhile firm. Claim of assessee was disallowed by Assessing Officer, Commissioner and Tribunal on ground that section 78(2) did not entitle assessee to set off losses. High Court however, held that such claim was not allowable in view of section 170(1). Meanwhile, penalty was imposed on ground that assessee had made a false claim .High Court, on appeal, noted that there was absolutely no discussion of section 170 in order of Commissioner (Appeals) and Tribunal which was applicable provision as regards succession. Moreover, Assessing Officer as also Commissioner (Appeals) was under misapprehension that assessee was not a successor .There was lack of clarity by income-tax authorities right up to Tribunal itself and, hence, imposition of penalty was not warranted. Appeal of assessee was allowed. Refer, Pramod Mittal v.CIT, 212 Taxman 64 (Mag.)(Delhi)(High Court).

• Assessee’s case was taken up for scrutiny and concealment of income had been detected by Assessing Officer. Assessee filed revised return. An amount was surrendered on ground of buying peace with department. However, it was a specific concealment for a particular month which was detected by Assessing Officer and not a case where addition was made in income on estimate and surmise. Since it was clear case of concealment of income and furnishing of wrong particulars of income, penalty was correctly imposed. Appeal of assessee was dismissed. Refer, Standard Hind Co. v. CIT, 212 Taxman 74 (Mag.)(All.)(High Court).

• Assessee, engaged in providing market support services, returned nil income and computed arm’s length price of its transactions on basis of multiple year data. TPO being of opinion that current year data was to be used, added some comparables and made transfer pricing adjustment. The Assessing Officer made addition to assessee’s income and initiated penalty proceedings. It was held that where at time of filing return, there was a legal debate as to whether current year data can be used or multiple year data has to be used, assessee’s adopting multiple year data was a bona fide exercise. The assessee acted in bonafide manner in conducting its transfer pricing study and arriving at arm’s length price . The explanation is bonafide hence levy of penalty under section 271(1)(c ) is not warranted. Refer, Verizon Communication India (P.) Ltd. v. Dy. CIT, 140 ITD 122 (Delhi)(Trib.).

• Assessee is engaged in online buying and selling commodities through commodity exchange, as a speculative activity, wherein no physical delivery was taken or given, total transaction booked with such commodity exchange could not be considered as ‘turnover’ for purpose of considering liability of assessee to get accounts audited u/s.44AB. Buying and selling the units was a speculative transaction .No delivery has taken place hence Levy of penalty was deleted. Refer, Banwari Sitaram Pasari HUF v. ACIT, 140 ITD 320 (Pune)(Trib.).

• The AO for the asst year 2001-02 curtailed the deduction under section 80IB and also added duty draw back and dividend income from foreign companies and levied the penalty.CIT (A) deleted the penalty. Tribunal gave finding that the amounts were offered to tax suo motu by the assessee and not consequence of disallowance of a claim and not a case of concealment of income or furnishing inaccurate particulars of income. High Court dismissed the appeal of revenue and confirmed the order of Tribunal. Refer, CIT v. Blue Star Ltd, 357 ITR 669.

• Original return was filed without disclosure. Capital Gain is arising out of the sale of share. Revised return filed showing Capital Gain on sale of share amounts to concealment as it is a subsequent act of the Assessee. Hence, penalty deserves to be confirmed. Refer, N. Ranjit v. CIT, 91 DTR 17(Mad.)(HC).

• The query raised by the Assessing Officer revealed the doubt in the mind of the Assessing Officer as to whether the expenditure was allowable one or not. However, the assessee filed a letter offering the expenditure as income, which, by itself, would not make this a case of concealment. The declaration of the enhanced income thus belied the claim of the Assessing Officer that there was concealment. Hence, penalty was not leviable. Refer, CIT v. Shriram Properties and Constructions (Chennai) Ltd, 356 ITR 700.

• Even if a loss return is filed, if the amount of concealment has the effect of reducing the loss in the return or converting such loss into income, section 271(1)(c) is attracted. A taxing statute has to be strictly interpreted by giving a plain meaning to the clear and unambiguous language used by the Legislature. When Explanation 4(a) clearly speaks of the return of loss and also deals with the effect of concealment of such return of loss either decreasing loss or converting loss into income, penalty under section 271(1)(c) would be attracted and can be levied even in a case where the assessed income is a loss. Refer, CIT v. Balaramakrishna Engineering Contractors Corporation, 356 ITR 524.

• Where there had been no avoidance of tax by assessee by availing benefit of treaty, penalty under section 271(1)(c) was not leviable. Refer, Satellite Television Asian Region Ltd. v. DCIT, 58 SOT 109 (Mum.) (Trib.).

• Assessee hospital treated its entire equipments as 'life saving devices' and claimed depreciation at 40 per cent. A.O. found that entire equipment could not be treated as 'life saving devices' disallowed excess depreciation claimed on normal equipment and levied penalty under section 271(1)(c) for claiming excess depreciation. Since assessee had furnished entire details of medical equipments deployed in its hospital and there was no concealment or furnishing of any inaccurate particulars, penalty under section 271(1)(c) was not leviable. Refer, Dy.CIT v. Apollo Hospitals Enterprise Ltd, 58 SOT 158(URO).

• The assessee, engaged in the business of building properties on various sites returned an amount of Rs. 15,92,940 to various parties had been received by of advance and the assessee also reflected the amount of advance received in its balance-sheet, which had been accepted by the Revenue in the earlier years. It was rightly held that section 269T would not be applicable and, therefore, no penalty under section 271E could be levied for breach of section. Refer, CIT v. Madhav Enterprise Pvt. Ltd, 356 ITR 588.

• Assessee during the year under consideration had filed the TDS quarterly statement for the financial year 2008-09 in Form No. 26Q on 24.9.2009. AO on the scrutiny of the said e-TDS return noted that the PAN Numbers of six deductees were found to be invalid and hence levied the penalty u/s 272B. CIT(Appeals) noted that default was in the case of one deductee and hence upheld the levy of penalty u/s 272B. The Tribunal held that, where the assessee has failed to furnish the PAN number of one of the deductees, the assessee has defaulted and is exigible to levy of penalty u/s 272B. Assessee has failed to establish its case of reasonable cause for the failure to furnish the correct PAN number of one of the deductees. Hence order of the CIT (Appeals) upheld. Refer, Tej Pal Gupta v. ITO(TDS), 20 ITR 46// 56 SOT 67 (Chd.)(Trib.).

• There was a prima facie case against the assessee. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The Court held that the prosecution will not be quashed. Refer, Hema Mohnot v. State by Chief Commissioner, 356 ITR 602.

• Revenue treating gains not as long-term capital gains but as short-term capital gains. Assessee surrendering right to contest issue on condition no penalty would be imposed- Not a case of furnishing inaccurate particulars or concealment of income-No penalty is leviable. Refer, CIT v. Neenu Dutta, 357 ITR 525 ( Delhi)(HC).

• Mere submitting of a claim which is incorrect in law would not amount to giving inaccurate particulars of the income of the assessee but the claim made by the assessee needs to be bona fide. The claim for deduction of bill discounting charges for both assessment years was found to be totally untrue, as there was no physical movement of goods. The bills were found to be bogus. There had been concealment of income and the levy of penalty was justified. Refer, Sharma Alloys (India) Ltd v. ITO, 357 ITR 379.

• The Tribunal held that assessee having offered the income on the basis of audited books of account maintained by it and the AO having rejected the books of account and estimated profit @8 per cent, assessee is not liable for penalty under s.271(1)(c) in the absence of any finding by the AO that the assessee made any false claim. Refer, ACIT v. Technip Italy SPA, 91 DTR 401 (Delhi)(Trib.).

• Penalty cannot be levied if the assessee discharges the primary burden by a cogent explanation and the AO is unable to rebut it. MAK Data. Refer, CIT v. Gem Granites, Karnataka H C.

• Disallowance of a genuine claim made during the assessment proceeding does not amount to concealment hence, the levy of penalty not justified as there was no furnishing of inaccurate particulars of facts. Refer, CIT .v. DCM LTD., 262 CTR 295.

• Where appellate authority deleted additions made by Assessing Officer as undisclosed investments, but sustained such additions on ground of under valuation of stock, penalty proceedings were requiredto be initiated by appellate authority and not by Assessing Officer, as subject matter of penalty proceedings was appellate authority's order, therefore, in such circumstances penalty proceedings initiated by Assessing Officer, in absence of appellate authority's direction to initiate penalty proceedings under section 271(1)(c), were unsustainable. Penalty cannot be imposed merely because assessee accepted assessment order levying tax and interest, unless it is discernible from assessment order that addition was on account of concealment IT, CIT .v. G. M. Export, 263 CTR 153.

• Merely making a claim which is ultimately found to be unsustainable may not by itself amount to furnishing of inaccurate particulars of income leading to concealment of income. Refer, CIT. v. Rajiv Bhatara, 94 DTR 137.

• Mere failure in proving capacity of shareholders to invest in share capital of assessee, could not be a ground for imposing penalty on company. Refer, CIT .v. Awadh Fertilisers (P.)Ltd, 35 taxmann.com 453.

• When the assessee had denied receipt of amount in question and seized documents also did not bear signatures or initials of any person, merely because assessee had offered same as additional income to buy peace of mind and to avoid prolonged litigation, same did not call for levy of penalty under section 271(1)(c). Refer, Marathon Nextgen Reality & Textiles Ltd. .v. DCIT, 59 SOT 36.

• In the absence of any finding indicating that assessee failed to offer any information or information provided was false, impugned penalty levied by invoking Explanation 7 to section 271(1)(c) was to be set aside especially when the assessee had furnished all the required details called for from time to time. Mere fact that the Assessing Officer disallowed travelling and legal expenses incurred by assessee in relation to its international transactions, penalty was not justified. Refer, Mastek Ltd. .v. DCIT, 59 SOT 55.

• The Tribunal deleted the penalty levied by the Assessing Officer and sustained by the learned CIT(A) on the basis that the revised return in which the additional income was disclosed by the assessee was accepted by the Assessing Officer in its entirely and the other additions were made only on the basis of the estimated income by applying the GP rate declared by the assessee itself. Refer, Poonam Marbles (P) Ltd. .v. Dy. CIT, 157 TTJ 59.

• The Tribunal held that the assessee has not concealed any particulars of income. Therefore, penalty under section 271(1)(c) was not sustainable. The assessee having not concealed any particulars of income, penalty under section 271(1)(c) is not leviable simply because additions have been made on account of unexplained investments and disallowance of certain claims made by the assessee which were not found to be bogus. Tribunal followed the decision of Hon’ble Supreme Court in case of CIT v. Reliance Petro Products (P) Ltd. (2010) 322 ITR 158. Refer, Om Prakash Lohiya .v. Dy. CIT, 157 TTJ 65.

• Amount surrendered in the return filed under section 153ALevy of penalty was not justified on the basis of original return under section 139(1). Refer, Devidas Sukhani .v. DCIT, 94 DTR 21 (Jodh.)(Trib.).

• The Tribunal deleted the penalty under section 271AA on the basis that the penalty has been levied only on the ground that the assessee had not maintained particulars as per Rule 10D which is not justified because the details enlisted in clauses show caused by Assessing Officer were not required to be maintained by the assessee and further the no opportunity of hearing was afforded by the officer imposing the penalty. The Tribunal held that on merit also penalty under section 271AA is not leviable because the international transaction entered upon by the assessee with its associate concern has been held to be at arm’s length. Refer, Dy.CIT .v. Bebo Technologies (P.) Ltd, 157 TTJ 602.

• Whether even if claim made by assessee is unsustainable in law, so long as assessee substantiated explanation offered by him or same is found to be bona fide, Explanation 1 to s. 271(1)(c) would not stand attracted. Assessee claimed deduction in respect of contribution made to trust fund, provisions for diminution in value of investments and sundry balances written off. However, in assessment proceedings, assessee offered said expenditure as income. The AO, however, imposed penalty u/s 271(1)(c) for claiming said non-admissible expenditure. Tribunal deleted penalty on ground that claim of expenditure made by assessee was based on decision of Supreme Court and, hence, there was no concealment of income. Tribunal’s order was to be upheld. Refer, CIT .v. Shriram Properties and Constructions, 219 Taxman 140.

• It was found that assessee was required to show a particular value of stock to the bank in order to enjoy continuous overdraft facility. Furthermore, whatever was submitted before bank was disclosed before authority. Hence, difference in stock disclosed in stock statements given to bank and stock as per books of account cannot be a ground for levy of penalty. Refer, CIT .v. Sachidanand Pulse Mills, 219 Taxman 153.

• Since there was no error whatsoever in appreciation of evidence by authorities, Single Judge had rightly upheld imposition of exemplary cost of Rs. 1 lakh in case of fabricated evidence. Refer, M. Shantha Kumar .v. CIT, 219 Taxman 154.

• Where no clear finding was recorded by AO whether assessee was guilty of concealing income and/or furnishing inaccurate particulars of income, Tribunal was justified in deleting penalty levied by the AO. Refer, CIT .v. Whiteford India Ltd, 219 Taxman 98.

• In the absence of incriminating materials relating to assessee's transaction, penalty merely on the ground that books of account was submitted and return of income was filed only because there was a search, is not justified. Also, there was neither recovery and seizure of any cash/ amount nor any allegation that books of account had not been maintained or assessee's books contained inaccurate particulars of income. Therefore, Explanation 5 to s. 271(1)(c) could not be applied and, hence, no penalty could be levied on assessee. Refer, S.M.J. Housing .v. CIT, 219 Taxman 94.

• Where deemed income assessed under section 115JB becomes basis of assessment as it was higher than income determined under normal provision, concealment would have no role to play and it would be totally irrelevant, concealment did not lead to tax evasion at all for imposing penalty. Refer, CIT .v. Aleo Manali Hydro Power (P.) Ltd, 219 Taxman 90.

• When addition made was set aside, whole basis which led to imposition of penalty ceased to exist and, thus, no ground could survive to sustain penalty. Refer, CIT .v. Shah Aollys Ltd, 218 Taxman 27.

• During assessment proceedings, assessee itself pointed out mistake of excess claim, which was claimed to be bonafide and inadvertent. The Tribunal’s order deleting penalty on the ground that excess claim was on account of bonafide mistake and time to file revised return for correction of mistake had expired, was to be upheld. Refer, CIT .v. Somany Evergree Knits Ltd. 218 Taxman 27.

• An omission, which did not lack bona fides and was corrected immediately on being pointed out by Assessing Officer before assessment, cannot attract penalty. Mere wrong description of status of assessee, especially when the AO knew the correct status or reduction of loss could not be treated as furnishing wrong particulars to attract penalty. Refer, CIT .v. Hapur Pilkhuwa Development Authority, 218 Taxman 116.

• Amount having been added under section 69A was to be treated as income of assessee and burden was upon assessee to prove that there was no concealment of income. Deletion of penalty was not justified. Refer, CIT .v. Agrawal Refrigeration, 218 Taxman 130.

• Assessee contended that it was in distressed condition and therefore filed inaccurate particulars of income claiming the expenditure on ac count of liability of interest accrued. For deleting penalty, Tribunal recorded a reason that AO did not ask assessee to furnish explanation. Held, Tribunal's order deleting penalty was to be upheld. Refer, CIT .v. Bihar Air Products Ltd, 218 Taxman 131.

• Since transaction of sale of shares had been made at price lower than prevalent price at stock exchange, it was a deliberate loss. Held, since appellant had concealed particulars of his income by giving inflated losses, test of conclusive evidence was proved, and therefore, penalty was to be levied. Refer, Varren Financial Services Ltd. .v. CIT, 218 Taxman 131.

• TPO determined ALP of international transaction after rejecting the transfer pricing study report submitted by the assessee primarily on account of difference of opinion with regard to use of multiple year data and selection of certain comparables. It could not be said that the difference in ALP arose on account of concealment of income or furnishing of inaccurate particulars or income by the assessee. Therefore, penalty was not leviable. Refer, ACIT .v. ADP (P) Ltd, 98 DTR 413 (Hyd.)(Trib.).

• Since survey proceedings were not conducted against assessee and no notice under section 139 or 148 was ever served on assessee, Commissioner was not justified in holding that return was not voluntary and rejecting assessee’s application for waiver of interest and penalty under section 273A on the ground that survey was conducted against assessee's husband and only after detection of concealed income, assessee filed her return. Held, Commissioner should confine his consideration to factors referred to in section 273A and to no other factor. Rejection of application holding that the return was not voluntary was held to be not justified. Refer, Dr. Santosh Rani Batra .v. CIT, 218 Taxman 136.

• Since returns for all the relevant years were filed late, reason assigned while accepting waiver of penalty for assessment years 1985-86 to 1987-88, would equally apply to assessment year 1988-89 and, thus, Commissioner was not justified in declining relief to assessee in one of the years while granting it for others. Refer, Joginder Singh .v. CIT, 219 Taxman 98.

• Penalty on deductor for wrong/ non-stating of PAN in TDS return is not applicable if information is not furnished by deductee. Penalty is Rs 10000 per deductor and not per wrong PAN. Refer, CIT .v. DHTC Logistics Ltd, Delhi HC.

• Where assessee-deductor did not mention PAN of deductees on TDS certificates issued by it, as same was not provided by deductees within time prescribed, there was reasonable cause for non-compliance of section 139A(5A), and, therefore, penalty under section 272B could not be imposed. Refer, CIT .v. Gail (India) Ltd., 218 Taxman 415.

• Where the Assessing Officer in his order under section 271G had not mentioned which document or information was required by a notice under section 92D(3) and was not furnished by assessee within a period of thirty days or extended period, order of penalty under section 271G could not be sustained. Refer, CIT .v. Leroy Somer & Controls, 218 Taxman 216.

• Since the booking advance received by the assessee in cash had been assessed as undisclosed income during assessment proceedings, such amount could not again be considered as deposit/loan in violation of section 269SS/269T for levy of penalty under section 271D/271E. Refer, CIT .v. Shyam Corporation. 218 Taxman 136.

Hope the above small summary on section 271 will help you in getting some relief from the hardship from the ITD. In case you have any further clarification please mail me at taxbymanish@yahoo.com.