Income Tax Appellate Tribunal - Delhi
Maninder Sidhu, New Delhi vs Assessee on 9 April, 2010
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH 'E' DELHI
BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL
I.T.A. No. 489(Del)/2010
Assessment year: 2004-05
Mrs. Maninder Sidhu, Asstt. Commissioner of
B-503, New Friends Colony, Vs. Income-tax, Circle 22(1),
New Delhi.
(Appellant) (Respondent)
Appellant by : Shri S.L. Deepak, C.A.
Respondent by: Shri G.S. Sahota, Sr. DR
ORDER
PER K.G. BANSAL : AM This appeal of the assessee emanates from the order of CIT(Appeals)-XXIII, New Delhi, passed on 22.11.2009 in Appeal No. 31/07-08, pertaining to assessment year 2004-05. The only substantive ground taken is that the ld. CIT(Appeals) erred in confirming the penalty u/s 271(1)(c) of the Income-tax Act, 1961, amounting to Rs. 28,082/-.
2. The assessee had paid appeal fees amounting to Rs. 500/-. The registry issued a notice to her stating that the fees so paid was short of the requisite amount of fees to be paid by Rs. 9,500/-. In the course of 2 ITA No. 489(Del)/2010 hearing, the ld. counsel for the assessee relied on the decision of Hon'ble Patna High Court in the case of Dr. Ajith Kumar Pandey Vs. Income-tax Appellate Tribunal, (2009) 310 ITR 195, in which it was held that in case of levy of penalty u/s 271, fees of Rs. 500/- is to be paid and not the fees calculated with reference to the assessed income. The relevant portion of the judgment at placitum 3 and 4 are reproduced below:
"3. A look at the sub-section would make it abundantly clear that in the case an appeal is filed on or after October 1,1998, the appeal must be accompanied by a fee of what has been provided in clauses (a), (b), (c) and (d) of the said sub-section. Clauses (a), (b) and (c) provides that fees as mentioned therein should be determined on the basis of total income of the assessee as mentioned in those clauses. Therefore, in the case of an appeal, where the total income of the assessee is ascertainable from the appeal itself, i.e., when the appellant is seeking to challenge the assessment of his total income, fees as mentioned in clauses (a), (b) and (c) would be required to be paid. Clause (d) of the sub-section deals with other appeals. Imposition of penalty under section 271 of the Income- tax Act, 1961, has no connection or bearing with the total income of the assessee. A person aggrieved by an order imposing penalty, if approaches the Tribunal by preferring an appeal, imposition of penalty, having no nexus with the total income of the assessee, it would not be discernible what is the total income of the appellant and, accordingly such an appeal will be covered by clause (d). Furthermore, the important words used in clauses (a), (b) and (c) of the sub-section are "total income of the assessee". Therefore, the appellant must be an assessee and the appeal must demonstrate what is his total income. In the case of imposition of penalty that may not be discernible.
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4. We, therefore, hold that the order passed by the Special Bench of Income-tax Appellate Tribunal, Kolkata, referred to above, is not convincing and, accordingly, the Tribunal erred in following the ratio contained therein. The order of the Tribunal is, accordingly, set aside and the matter is remitted back to the Tribunal with a direction upon it to consider the appeal of the petitioner on the merits proceeding on the basis that appropriate court fees have been paid therefor.
2.1 Relying on this judgment, it is held that the fees paid by the assessee is in order. Therefore, we proceed to decide the appeal on merits.
3. From the assessment order, it is seen that the return of income declaring total income of Rs. 15,27,130/- was filed on 31.10.2004. In the course of assessment proceedings, it was inter-alia found that the assessee incurred long-term capital loss of Rs. 82,844/- on sale of securities. The had also incurred loss of Rs. 1,41,891/- from business. The long-term capital loss was adjusted against short-term capital gain of Rs. 17,33,475/- earned by the assessee. When the assessee was questioned regarding the adjustment, the claim was withdrawn. The AO also initiated penalty proceedings u/s 271(1)(c), which were disposed off by way of a separate order passed on 24.5.2007. In this order, it was 4 ITA No. 489(Del)/2010 mentioned that the explanation of the assessee was that the adjustment was a mistake made while preparing the return. As soon as the mistake came to notice in the course of assessment proceedings, the claim of adjustment was withdrawn. The AO did not find the explanation to be satisfactory. It was mentioned that a long period elapsed between filing the return and receipt of notice u/s 143(2) by the assessee. If there was not any mala fide intention in making the claim, it could have been withdrawn before the receipt of the notice. However, the claim was withdrawn after lapse of about 10 months of filing of the return, when notice u/s 143(2) had been issued to the assessee. Therefore, it was held that the assessee made herself liable for levy of penalty. Accordingly, minimum penalty of Rs.28,082/- was levied. The matter was agitated in appeal. The submission of the assessee before him was that the assessee had furnished complete details of long-term capital loss and short-term capital gains. Therefore, the case was one of bona fide mistake. Therefore, it was argued that the penalty levied by the AO may be deleted. The ld. CIT(Appeals) did not accept this explanation more or loss on the reasons mentioned by the AO. He relied heavily on the decision of Delhi Tribunal in the case of Naresh Kumar Verma Vs. Dy. CIT, (2009) 26 DTR 17. The Hon'ble Tribunal 5 ITA No. 489(Del)/2010 considered the decision of the apex court in the case of Union of India Vs. Dharmendra Textile Processors & Others, (2008) 306 ITR 277 and came to the conclusion that in that case the assessee had made himself liable for penalty for making a false claim u/s 10B in respect of two sales which were inland sales and in respect of which no convertible foreign exchange was received. For the sake of ready reference, paragraph 39 of that order is reproduced below:-
"39. Keeping in view the above discussion, it is held that Explanation 1 to s. 271(1)(c) is applicable to the facts of the present case. Assessee has furnished inaccurate particulars of his income which resulted into excess claim of exemption under s. 10B in the return of income filed by him. The bona fide of the assessee has not been established as all the facts relating to the claim of deduction under s. 10B were not duly and correctly stated by the assessee while filing the return of income. The facts came to the notice of AO during the course of assessment proceedings when he investigated the details furnished by the assessee in pursuance of requirement given by the AO to furnish the details to verify the fact that whether deduction has rightly been claimed and whether the assessee has received the sale proceeds in convertible foreign exchange within the stipulated period. It is only while going through these details, the AO noticed that the above- mentioned two sales were made by the assessee in India on which assessee did not receive payment with regard to sale proceeds in convertible foreign exchange. So, it is not a case where the full and true facts are disclosed by the assessee in the return of income voluntarily. The case law relied upon by ld. AR have already been distinguished. Therefore, our conclusion is that levy of penalty has rightly 6 ITA No. 489(Del)/2010 been upheld by the CIT(A) and his order does not call for any interference from our side"
3.1 Before us, the ld. counsel for the assessee submitted that the claim of set off of long-term capital loss against short-term capital gains was a bona fide mistake. The assessee had furnished full and correct particulars regarding computation of losses under the aforesaid heads. The AO has also not given any finding of mala-fide claim in the assessment order. In such circumstances and looking to the fact that the assessee had declared substantial income of Rs. 15,27,130/-, her explanation should have been accepted by the ld. CIT(Appeals). 3.2 In order to support the aforesaid contention, reliance was placed on the decision of Hon'ble Supreme Court in the case of Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi & Others (1979) 118 ITR 507, a case dealing with delay in filing special leave petition. It was inter-alia submitted that the delay occurred on account of ignorance of law on the part of the counsel of the assessee, a plea rejected by the High Court. It was held that it is a settled law that the mistake of counsel may in certain circumstances be taken into account in condoning the delay. However, there is no general proposition of law in 7 ITA No. 489(Del)/2010 this behalf. The question always is whether the mistake was bona fide or a devise to cover up the latches? Further, reliance was placed on the decision of Hon'ble Supreme Court in the case of Dilip N. Shroff Vs. Joint CIT & Another, (2007) 291 ITR 519, in which it was inter-alia held that the terms "concealment of income" and "furnishing inaccurate particulars of income" used in section 271(1)(c) inherently involve the concept of deliberate act on the part of the assessee. Mere omission or negligence would not constitute such a deliberate act, warranting the levy of the penalty. Reliance was also placed on the decision of Hon'ble Supreme Court in the case of Union of India Vs. Rajasthan Spinning & Weaving Mills, (2009) 180 Taxman 609, in which the decision in the case of Dharmendra Textile Processors & Others (supra) was also considered. The Hon'ble Court referred to the corresponding provision contained in sections 11AC and 11A(2) of the Central Excise Act, 1944, and held that the penalty will be leviable only when an order is passed u/s 11A(2) after giving a finding that the duty escaped assessment as a result of deception on the part of the assessee by adopting means indicated in section 11AC. Reliance was also placed on the decision of Hon'ble Supreme Court in the case of CIT Vs. Reliance Petro Products Pvt. Ltd., (2010) 322 ITR 158. The ld. counsel for the revenue argued that 8 ITA No. 489(Del)/2010 by making incorrect claim for the expenditure on interest, the assessee had furnished inaccurate particulars of income. The Hon'ble Court considered this argument and mentioned that the phrase "particulars of income" refer to the details in respect of income, and not the claim of deduction made on the basis of such details furnished by the assessee in the return of income. Thus, where the details are found to be factually correct, penalty cannot be levied merely because the claim has not been accepted by the AO.
3.3 In reply, the ld. DR stressed on the fact that there was a gap of about one year between the filing of the return of income and the admission of the assessee that the adjustment was wrong in law. The point of law on the issue is well settled and does not involve any debate or discussion. Relying on the decision of Dharmendra Textile Processors & Others (supra), it was argued that penalty u/s 271(1)(c) is not a levy of penal nature. The information furnished in respect of the claim was found to be incorrect by the AO. Thus, relying on the order of the ld. CIT(Appeals), it was argued that he was right in upholding the penalty levied by the AO.
9 ITA No. 489(Del)/2010
4. We have considered the facts of the case and submissions made before us. The facts of the case are that the assessee incurred long- term capital loss of Rs. 82,844/- and earned short-term capital gains of Rs. 17,33,475/- in this year. The loss was adjusted against the profits. However, after issue of notice u/s 143(2), the claim of the adjustment was withdrawn in the course of hearing. The question is, whether the ld. CIT(Appeals) was right in confirming the penalty of Rs. 28,082/- u/s 271(1)(c)? The case of the ld. counsel is that the claim was a bona fide mistake. All facts regarding computation of the loss and the gains were furnished along with the return of income. Thus, it is neither a case of concealment of income nor furnishing inaccurate particulars of income. The case of the ld. DR is that the claim of adjustment was withdrawn in the course of hearing after lapse of about one year from the date of filing the return of income. The claim was patently incorrect in law. Therefore, the penalty is leviable.
4.1 In the case of Naresh Kumar Verma (supra), relied upon by the ld. CIT(Appeals), the assessee had furnished wrong facts about two sales in respect of which deduction was also claimed u/s 10B. The ld. DR has not been able to point out towards any falsity in facts furnished by the 10 ITA No. 489(Del)/2010 assessee in respect of computation of the loss or the gain. Therefore, the facts of aforesaid case are distinguishable.
4.2 In the case of Dharmendra Textile Processors & Others (supra), relied upon by the ld. CIT(Appeals) and the ld. DR, the finding of the court was that the question of levy of penalty has to be decided in terms of statutory language employed in the main provision and Explanations appended thereto. This case, therefore, cannot be taken to be an authority for the proposition that wherever addition is made to the returned income, penalty u/s 271(1)(c) follow automatically. The correct interpretation of the judgment is that the explanation of the assessee has to be tested in terms of the statutory provision.
4.3 The case of Concord of India Insurance Company Ltd. (supra), relied upon by the ld. counsel, was decided on the issue of limitation. It was held that the mistake of counsel cannot be taken to be a bona fide ground for latches in filing the SLP. Since the case was decided on a totally different issue, the facts become clearly distinguishable. In any case, there is no plea that the mistake in making adjustment was on 11 ITA No. 489(Del)/2010 account of the mistake of the counsel of the assessee. There is no evidence to that effect on the record by way of affidavit from the counsel etc. 4.4 In the case of Rajasthan Spinning & Weaving Mills (supra), the finding of the Hon'ble Court was that it has to be shown by the revenue that conditions expressly mentioned in the statute for applicability of section 11AC hold good on the facts of the case. The judgment is similar in contents to the interpretation placed by us earlier on the decision in the case of Dharmendra Textile Processors & Others. Thus, it has to be seen whether the conditions mentioned in section 271(1)(c) are satisfied in the instant case. In the case of Dilip N. Shroff (supra), it was held that "inaccurate particulars of income" mean inaccuracy in the details filed by the assessee regarding its claim. If the details are factually correct, mere omission or negligence would not lead to either suppressio veri or suggestio falsi.
4.5 Looking to the decisions of the applicable cases, the relevant issue is whether the assessee has concealed any facts with regard to her income or furnished inaccurate particulars about any part of her income. The orders of authorities below and arguments placed before 12 ITA No. 489(Del)/2010 us by the ld. DR do not in any manner show that there was falsity of facts made by the assessee in computation of long-term capital loss or short-term capital gain. On the contrary computation of the loss and the profit has been accepted by the AO. The only issue is regarding setting off of the loss against the gains. It is an admitted fact that the position of law in this behalf is clear. However, it is argued by the ld. counsel that setting off of the loss against the gains was an inadvertent mistake, which should be taken as bona fide mistake. We have considered this argument also. Both species of income are classified under the head "capital gains", one as short-term capital gains and the other as long- term capital loss, depending upon the period of holding the asset. The assessee could be under bona fide belief that one can be set off against the other in the same year. In absence of proving falsity in the details regarding computation of income, we are of the view that she cannot be charged with the penalty. In other words, in such matters one has to distinguish between a wrong claim and a false claim. The claim in the case of Naresh Kumar Verma (supra) was false because two inland sales were clubbed with export sales. No convertible foreign exchange was received in respect of inland sales, which was also the essence of requirement for deduction u/s 10B. There is no such falsity in this case. 13 ITA No. 489(Del)/2010 Therefore, we are of the view that the cases discussed above support the case of the assessee that penalty ought not to have been levied on her in respect of inadvertent but wrong claim.
5. In the result, the appeal is allowed.
This order was pronounced in the open court on 9 April, 2010.
Sd/- sd/- (Rajpal Yadav) (K.G.Bansal) Judicial Member Accountant Member Date of order: 09 .04.2010. SP Satia Copy of the order forwarded to:-
1. Mrs. Maninder Sidhu, New Friends Colony, New Delhi-65.
2. ACIT, Circle 22(1), New Delhi.
3. CIT(A)
4. CIT, New Delhi.
5. DR, ITAT, New Delhi. Assistant Registrar.