Income Tax Appellate Tribunal - Chandigarh
Smt. Parkash Kaur, Ludhiana vs Acit, C-7, Ludhiana on 30 September, 2019
आयकर अपील य अ धकरण,च डीगढ़ यायपीठ, "बी " च डीगढ़
IN THE INCOME TAX APPELLATE TRIBUNAL
DIVISION BENCH, 'B', CHANDIGARH
ी एन. के. सैनी, उपा य एवं ी संजय गग , या यक सद य
BEFORE SHRI N.K. SAINI, VICE PRE SIDENT &
SHRISANJAY GARG, JUDICIAL MEMBER
आयकरअपीलसं./ITA No. 1403/ C H D / 2 0 1 8
नधा रणवष / Assessment Year : 2014-15
Smt. Parkash Kaur, Vs. The ACIT, Circle-7,
H.No. 85-C, Udham Singh बनाम Ludhiana
Nagar, Civil Lines,
Ludhiana
थायीले खासं . / PAN NO: ACCPK2706P
अपीलाथ#/ Appellant %&यथ#/ Respondent
नधा 'रतीक)ओरसे/Assessee by : Sh. Ashwani Kumar, CA
राज वक)ओरसे/ Revenue by : Sh. Manjit Singh, CIT DR
सन
ु वाईक)तार-ख/Date of Hearing : 21.08.2019
उदघोषणाक)तार-ख/Date of Pronouncement : 30.09. 2019
आदे श/ Order
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 24.08.2018 of the Commissioner of Income Tax (Appeals)-3, Ludhiana [hereinafter referred to as CIT(A)] agitating the action of the CIT(A) in confirming the penalty of Rs. 7,46,000/- levied by the Assessing Officer u/s 271 (1)(c) of the Income Tax Act, 1961 (in short 'the Act').
3. The Ld. Counsel for the assessee, at the outset, has submitted that under the similar facts and circumstances, the Coordinate Bench of ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 2 the Tribunal, in the case of 'Gajjan Singh Thind vs ACIT, ITA No. 1402/Chd/2018, decided the issue vide order dated 1.7.2019 has held that the provisions of section 271 (1)(c) being penal in nature and required to be strictly construed. The Coordinate Bench of the Tribunal has observed that if the income declared in the revised return which is valid and filed within the limitation period prescribed for filing the same, the penalty in respect of such declared income under the provisions of section 271 (1)(c) of the Act is not leviable. The Ld. counsel for the assessee has submitted that the assessee is related to 'Shri Gajjan singh Thind' and the facts and circumstances and even the dates of events, such as, date of filing of return of income, issuances of notice, filing of the revised return of income etc., are exactly identical except the quantum of income declared and the penalty imposed. The Ld. counsel for the assessee has submitted a chart showing the sequence of events, which is reproduced as under:-
Return of Income filed on declaring income at Rs.90,36,860/- 31.07.2014 Notice u/s 143(2) issued by ITO Ward 7(1)Ludhiana 18.09.2015 Summons issued by ADIT (inv.) for appearing on 30.9.2015 08.10.2015 Revised by adding Rs. 19.55,227/- on account of profit on sale of shares and filed on 08.10.2015 Inadvertently omitted to submit ITR-V to CPC, Bangluru Notice u/s 142(1) alongwith questionnaire issued on 09.05.2016 Assessment completed at Rs. 1,10,32,090/-
after adding the difference of profit on shares at Rs. 40,015/- 20.06.2016 ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 3 penalty u/s 271 (1)(c) initiated on income of Rs. 19.55.227/-
Order levied penalty at Rs. 7,46,000 @ 110% of 23.03.2017 Income of Rs. 19,95,242/- was passed on Order passed by Ld. CIT(A) -3, Ludhiana 24.08.2018 Dismissing the appeal
4. The Ld. counsel has submitted that the Coordinate Bench of the Tribunal in the case of 'Gajjan Singh Thind vs ACIT,' (supra) on similar facts and circumstances has ordered for the deletion of the penalty in respect of the income declared through validly filed revised return, however, the penalty @ 100% of the tax amount sought to be evaded has been confirmed in respect of the difference of the amount between the income shown in the revised return and the amount actually received in the bank account of the assessee. The said difference in the case of the assessee is of the amount of Rs. 40,015/-.
4. The Ld. DR on the other hand, has relied on the finding of the lower authorities.
5. We have gone through the decision of the Coordinate Bench of the Tribunal in the case of 'Gajjan Singh Thind vs ACIT', (supra), wherein, the facts and circumstances of the case, the issue involved and even the relevant date of events are exactly identical to that of the case of assessee except the figure of amount of income declared and the figure of amount of penalty levied. The relevant part of the order of the ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 4 Tribunal in the case of Gajjan Singh Thind vs ACIT' (supra) is reproduced as under;-
"4. Before us, the Ld.Counsel for the asssessee has submitted a chart showing the sequence of events, which is reproduced as under:
Return of Income filed on declaring income at Rs.98,36,430/- 31.07.2014 Notice u/s 143(2) issued on Served on 19.09.2015 18.09.2015 Case transferred to other charge and another notice u/s 143(2) was received on 22.09.2015 Summons issued by DDIT, Ludhiana on 30.09.2015 Return was revised and declared income at Rs. 1,39,92,3107- (including Rs. 41,55,880/- on account of profit on sale of Shares) 08.10.2015 Notice u/s 142(1) issued on 01.04.2015 Reply to notice u/s 142(1) dated 01.04.16 filed on 11.04.2016 Notice u/s 142(1) issued on 09.05.2016 Reply to notice u/s 142(1) dated 09.05.16 filed on 26.05.2016 Order u/s 143(3) passed on 20.06.2016 After adding a sum of Rs. 2,00,020/- on Account purchase price of shares) assessed at Rs. 1,41,92,330/-
5. The assessee has also placed a copy of the I TR-V alongwith computerized acknowledgement of receipt of ITR-V from CPC, Bangaluru to show that the assessee h a d e - f i l e d t h e r e v i s e d r e t u r n o n 8. 1 0 . 2 0 1 5 . T h e Ld.Counsel for the asssessee has further invited our attention to the provisions of section 139(5) of the Act, as applicable in the assessment year under consideration, which read as under:
"139(5) If a n y p e r s o n , h a v i n g f u r n i s h e d a re turn under sub- section (1), or in purs uance of a n o t i c e i s s u e d u n d e r s u b - s e c t i o n ( 1 ) of ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 5 s e c t i o n 1 4 2 , d i s c o v e r s a n y o m i s s i on o r a n y wrong s tatement therein, he may furnish a r e v i s e d r e t u r n a t a n y t i me b e f o r e t h e e x p i r y of o n e y e a r f r o m t he e n d o f th e r e l e v a n t as s e s s me n t y e a r o r b e f o r e th e c o m p l e t i o n o f t h e a s s e s s m e n t , w h i c h e v e r i s e ar l i e r . "
6. The Ld. Counsel f or the asssessee, therefore, has submitted that as per the relevant provisions of section 139(5) of the Act, an assessee is entitled to file a revised return within the stipulated period as prescribed under the aforesaid provisions of section 139(5) of the Act, if he discovers any omission or any wrong statement in the return originally filed u/s 1 3 9 ( 1 ) o f t h e Ac t . T h a t i n t h i s c a s e , t h e a s s e s s e e h a s filed the revised return on 8.10. 2015, which was within the limitation period prescribed f or f iling the revised return. Hence, the revised return filed by the assessee w a s a v a l i d r e t u r n a n d t h e A. O . w a s s u p p o s e d t o m a k e the assessment taking the revised return as the base r e t u r n o f t h e a s s e s s e e . S i n c e t h er e w a s n o a d d i t i o n made by the assessee in respect of the income of Rs. 41,55, 876 shown in the revised return as "income from other sources" and due tax was paid thereupon, h e n c e n o a d di t i o n w a s m a d e b y t h e A . O . o n t h i s account. So far as the difference of Rs.2,00,015/- was c o n c e r n e d , t h e a s s e s s e e h a d v o l un t a r i l y o f f e r e d t h e said diff erence for taxation. Hence, it was not a case of concealment of income to warrant levy of penalty u/s 271(1)(c) of the I.T. Act.
7. The Ld. DR, on the other hand, has submitted that since the revised return was filed by the assessee after the assessee was summoned by the Investigation Wing and even after the issuance of earlier notice u/s 143(2) of the Act on 18.9.2015, hence the assessee declared the af oresaid income when he was show caused. That it was clear-cut case of concealment of income and f urnishing of inaccurate particulars of income.
8. We have considered the rival contentions and have also minutely perused the relevant provisions of t h e A c t . I n t h e c a s e i n h a n d, t h o u g h t h e a s s e s s e e h a d filed the revised return after an enquiry was initiated by the Investigation Wing of the Income Tax Department about the Long Term Capital Gains declared by the assessee, yet, the revised return filed by the assessee was within the stipulated period prescribed under the Act. As per the provisions of section 139(5) of the Act, there is no bar to file a revised income even during assessment proceedings but ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 6 before completion of the assessment subject to the condition that the period prescribed for filing the same has not expired. Under these circumstances, the revised return filed by an assessee will be a valid return. The A.O. under such circumstances neither can, nor is supposed to make further addition into the income of the assessee in respect of income which has a l r e a d y b e e n d e c l a r e d b y t h e a s s e s s e e i n t h e v a l i dl y filed revised return. If there is no addition made to t he income of the assessee, there will not be any tax sought to be evaded by an assessee. If there is no tax sought to be evaded, no penalty can be computed or levied under the provisions of section 271(1)(c) of the Act. The reliance in this respect can be placed on the decision of the Coordinate Bench of the Tribunal in the case of ' CIT Vs. K ul w a n t S i n gh ' (2019) 104 Taxmann.com 340 (Chandigarh - Trib.), wherein the following observations have been made by the Coordinate Chandigarh Bench of the Tribunal:
"15. Before proceedings further, we deem it fit to first discuss the relevant provisions of section 271(1)(c) of the Act as they stood during the relevant period / assessment year under consideration.
" 271. (1) If the Assessing Officer or the Commissioner (Appeals) or the Commissioner in the course of any proceedings under this Act, is satisfied that any person--
.......
(c ) has concealed the particulars of his income or furnished inaccurate particulars of [such income, or] ......
he may direct that such person shall pay by way of penalty,-- .....
[( iii) in the cases referred to in clause (c) or clause (d), in addition to tax, if any, payable by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or fringe benefits or the furnishing of inaccurate particulars of such income or fringe benefits.
Explanation 1.--Where in respect of any facts material to the computation of the total income of any person under this Act,--
ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 7 (A ) such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Commissioner to be false, or (B ) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed. ...
[Explanation 3.--Where any person fails, without reasonable cause, to furnish within the period specified in sub-section (1) of section 153 a return of his income which he is required to furnish under section 139 in respect of any assessment year commencing on or after the 1st day of April, 1989, and until the expiry of the period aforesaid, no notice has been issued to him under clause (i) of sub- section (1) of section 142 or section 148 and the Assessing Officer or the Commissioner (Appeals) is satisfied that in respect of such assessment year such person has taxable income, then, such person shall, for the purposes of clause (c) of this sub-section, be deemed to have concealed the particulars of his income in respect of such assessment year, notwithstanding that such person furnishes a return of his income at any time after the expiry of the period aforesaid in pursuance of a notice under section 148.] Explanation 4.--For the purposes of clause (iii) of this sub-section, the expression "the amount of tax sought to be evaded",--
[( a) in any case where the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished has the effect of reducing the loss declared in the return or converting that loss into income, means the tax that would have been chargeable on the income in respect of which particulars have been concealed or inaccurate particulars have been furnished had such income been the total income;
(b ) in any case to which Explanation 3 applies, means the tax on the total income assessed [as reduced by the ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 8 amount of advance tax, tax deducted at source, tax collected at source and self-assessment tax paid before the issue of notice under section 148;
(c ) in any other case, means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished."
16. A perusal of the above referred to section 271(1)(c) of the Act reveals that there are two parts of this section. The first part speaks about the charge which may invite penalty i.e. a person has concealed 'particulars' of his income or furnished inaccurate particulars of income, he may be directed to pay certain sum by way of penalty as penalty. Now, the second part speaks about the quantum of amount payable. As per clause (iii), the Assessing officer may direct such a person against whom the above charge is established to pay in addition to the tax, if any, payable a sum which is not less than, but which shall not exceed three times, the amount of tax sought to the evaded by a reason of such concealment of particulars of income or furnishing of inaccurate particulars of income.
17. Now, Explanation 1 strongly relied upon by the Ld. DR speaks about of deeming fiction regarding the concealment of particulars of income which speaks that if a person fails to offer an 'explanation' or which is found by the concerned income tax authorities to be false or such person could not substantiate in respect of any fact material to the computation of his total income, then the amount added or disallowed in computing total income of such person as a result thereof, shall be deemed to represent the income in respect of which particulars have been concealed. Further, as per the Explanation 3, where a person fails to furnish within the stipulated period his return of income for any assessment year and thereafter, the concerned income tax authority, either the Assessing officer or the CIT (A) finds that in respect of such assessment year, such person has taxable income, then such person shall be deemed to have concealed the particulars of his ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 9 income in respect of such assessment year, notwithstanding that such person furnishes a return of his income at any time after expiry of the period aforesaid in pursuance of a notice u/s 148 of the Act. Vide Explanation 4, the term "the amount of tax sought to be evaded" has been defined / explained for the purpose of computation of levy of penalty.
18. A per clause (a) to Explanation 4, where the amount of income tax in respect of which particulars have been concealed or inaccurate particulars of income have been furnished, has the effect of reducing the loss declared in the return or converting that loss into taxable income, then the tax sought to be evaded will the amount which would have been chargeable on the income in respect of which particulars have been concealed or inaccurate particulars of income have been furnished had such income been the total income; meaning thereby there should be a resultant effect of reducing the loss declared or converting that loss into income by the act or omission of the concerned person for concealment of income or furnishing of inaccurate particulars of income. Then as per the clause (b) of Explanation 4, wherein, in a case to which Explanation 3 applies i.e. where the concerned person fails to file within the stipulated period a return of income despite having taxable income, in that case, the tax sought to be evaded will be the tax on the total income assessed but reduced by the amount of advance tax, tax deducted at source, tax collected at source and self-assessment tax paid before the issue of notice u/s 148 of the Act.
As per the above said provision what is material is the evasion of the tax and in that scenario, if a person does not file a return and, hence, does not disclose his particulars of income and meaning thereby concealed his particulars of income but if he before the issuance of notice for the reopening of the assessment u/s 148 of the Act, had deposited due taxes and the resultant addition after assessment does not create any liability to pay any further tax, there will be no tax sought to be evaded.
19. Now coming to the relevant clause (c) to Explanation 4, which is residuary clause which speaks ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 10 that in any other case, the difference between the t o t a l i n c o m e a s s es s e d a n d t h e t a x t h a t w o u l d h a v e been chargeable, had such total income been reduced by the amount of income in respect of which particulars have been concealed which means that the tax payable on the income in respect of which particulars have been concealed or inaccurate particulars of income furnished.
20. A collective reading of all the three clauses reveal that for the calculation of the quantum of penalty, it is not the income in respect of which particulars have been concealed or furnished or inaccurate particulars of income furnished that is relevant but it is the resultant addition to the income of the assessee on account of such concealed particulars of income or furnishing of inaccurate particulars of income. If despite the detection of concealment of income or furnishing of inaccurate particulars of income, in the resultant effect, there is no addition into the income of the assessee or the assessee has already paid taxes on such income in respect of which particulars have been concealed or inaccurate particulars of income have been furnished, then, as per Explanation 4, there will be no tax sought to be evaded and thereby no penalty will be leviable u/s 271(1)(c) of the Act. In our view, clause
(c) to Explanation 4 is a residuary clause and can not be segregated and independently interpreted in divorce to clauses (a) or (b) of Explanation 4 to give giving it an entirely different meaning and any such an interpretation, will not be a correct interpretation of the statutory provision. A collective reading of the entire provisions of section 271(1)(c) of the Act reveal beyond doubt that what is material is the resultant addition to the taxable income of an assessee which may invite penalty under the relevant provisions of section 271(1)(c) of the Act. Though the words used in the first part, i.e. charging provision are 'Particulars' of income, however, for levy of penalty it is not the 'Particulars' of income but rather the 'quantum of income itself, that is added to the taxable income of the assessee is relevant for the purpose of calculation of the amount of penalty leviable as per the aforesaid provision. Explanation 4 to section 271(1)(c) was introduced vide Taxation ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 11 Law Amendment Act, 1975. The relevant part of Circular No. 204 dated 24.7.1976 giving explanatory note on the aforesaid inserted provisions reads as under:-
"61.11 New Explanation 4 defines 'the amount of tax sought to be evaded'. According to the definition, this expression will ordinarily mean the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of which particulars have been concealed. In a case, however, where on setting off the concealed income against any loss incurred by the assessee under other head of income or brought forward from earlier years, the total income is reduced to a figure lower than the concealed income or even to a minus figure, 'the tax sought to be evaded' will mean the tax chargeable on the concealed income as if it were the total income. Another exception to the general definition of the expression 'tax sought to be evaded' given earlier is a case to which Explanation 3 applies. Here, the tax sought to be evaded will be the tax chargeable on the entire total income assessed."
21. Even in the Explanation 1, what is relevant is any fact material to computation of total income of any person regarding which such person fails to offer an 'Explanation' or Explanation which is found to be false by the Income-tax authorities or an Explanation which is not able to substantiate, then, the amount added or disallowed in computing total income of such person as a result thereof deemed to represent the income in respect of which particulars have been concealed. So, firstly what is relevant is the material fact to the computation of total income. The word 'computation' here is relevant which means that the fact must be material which has the effect of any addition or disallowance in the income to be computed after the assessment proceedings and it has also been provided that the amount added or disallowed into the self-assessed income represents the income, particulars of which has been concealed and further a combined reading of the sub sections
(a), (b) (c) and Explanation 4 would show that tax ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 12 sought to be evaded is the tax payable on such amount in respect of which particulars have been concealed. The word 'Explanation' here is not to be applied broadly to include explanation regarding each and every fact or particulars of income such as the source of income, manner of earing of income etc., rather, the word 'explanation' here has a limited scope, whereby, it has restricted that the offering of explanation that the material fact which had been detected by the Assessing officer has a result of addition of disallowance into the income of the assessee and the assessee has no explanation that why the same be not treated as taxable income of the assessee for that relevant year. The words 'particulars of income' though in general will have a wide and broader aspect as to of the relevant particulars such as the source of income, manner of earning of income and genuineness of transaction etc., however, the second part of this section 271(1)(c) of the Act has limited the above wider scope and for the purpose of computation of penalty, stress is given on the resultant addition of an amount to the income of the assessee. The tax thereupon represents the tax sought to be evaded and the penalty can be levied upon such concealed income equal to a sum which may be 100% of 300% of the amount of tax sought to be evaded.
22. So far as the arguments of the Ld. DR that such an interpretation would defeat the purpose of provisions of section 115BBE substituted by Taxation Law (2nd Amendment) Act, 2016 w.e.f. 1.4.2017 and section 271AAC of the Act w.e.f. 1.4.2017. In our view, the above contention of the Ld. DR is not tenable. The relevant section 115 BBE and section 271AAC for the sake of convenience are reproduced as under;-
115BBE. (1) Where the total income of an assessee,--
(a) includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D and reflected in the return of income furnished under section 139; or
(b) determined by the Assessing Officer includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, if such income is not covered under clause (a), ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 13 the income-tax payable shall be the aggregate of--
(i) the amount of income-tax calculated on the income referred to in clause (a) and clause (b), at the rate of sixty per cent; and
(ii) the amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the amount of income referred to in clause (i).
(2) Notwithstanding anything contained in this Act, no deduction in respect of any expenditure or allowance 16[or set off of any loss] shall be allowed to the assessee under any provision of this Act in computing his income referred to in clause (a) 16a[and clause (b)] of sub-section (1)."
Section 271AAC "271AAC. (1) The Assessing Officer may, notwithstanding anything contained in this Act other than the provisions of section 271AAB, direct that, in a case where the income determined includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D for any previous year, the assessee shall pay by way of penalty, in addition to tax payable under section 115BBE, a sum computed at the rate of ten per cent of the tax payable under clause (i) of sub-section (1) of section 115BBE:
Provided that no penalty shall be levied in respect of income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D to the extent such income has been included by the assessee in the return of income furnished under section 139 and the tax in accordance with the provisions of clause (i) of sub-section (1) of section 115BBE has been paid on or before the end of the relevant previous year.
(2) No penalty under the provisions of section 270A shall be imposed upon the assessee in respect of the income referred to in sub-section (1).
(3) The provisions of sections 274 and 275 shall, as far as may be, apply in relation to the penalty referred to in this section."
23. Pr ior to s ubs titution of s ub s ection (1) of s ectio n 115 BBE w. e. f. 14. 201 7, the s ection 115 BBE wa s ins er ted by Finan ce Act 20 12 w. e.f. 1.4.2 013, which r ea ds as und er :-
(1) Where the total income of an assessee includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, the income-tax payable shall be the aggregate of--
ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 14
(a) the amount of income-tax calculated on income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, at the rate of thirty per cent; and
(b) the amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the amount of income referred to in clause (a).
16. Inserted by Finance Act, 2016 w.e.f, 1-4-2017 16a Inserted by Finance Act, 2018 w.e.f. 1-4-2017"
24. It is pertinent to mention here that prior to 1.4.2013, there was no section 115BBE. Section 115 BBE was inserted vide Finance Act 2012 to tax the income referred to in section 68, 69, 69A, 69 B, 69 C or 69D at a flat rate of 30%. Prior to 1.4.2013, any unexplained income of the assessee either offered by himself or detected by the Assessing officer are to be taxed as per the normal rate as prescribed from time to; time. However, during the period of demonetarization in the year 2017, it was noticed that the assessees had started taking benefit of the provisions of sections 68, 69, 69A and started depositing their unaccounted for / undisclosed income in the bank account declaring the same as their income of the assessment year under consideration in the return of income and paying taxes @ 30% as provided u/s 115BBC of the Act, act of the assessee was taken as contributory factor in failure of the Voluntary Disclosure Scheme. Hence, to curb this practice, the government substituted sub section (1) of section 115 BBE to provide that wherein in the return of income furnished by the assessee, the total income of an assessee includes an income referred to in sections 68, 69, 69A, 69B and 69 C or section 69D, or otherwise added or determined by the Assessing officer during the assessment proceedings under the above provisions, then the tax at the flat rate of 60% will be payable on such an income disclosed or determined. Further to mark a difference between the self-declared income in the aforesaid provisions and the cases where the Assessing officer determined /detected such income in the aforesaid sections 68, 69, 69A, 69B and 69 C or section 69D, the penalty provisions of section ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 15 271AAC comes into operation which provides that if s u c h a n i n c o m e i s s u o m o t o d e c l a r e d b y t h e a s s e s s ee in his return, then no penalty is leviable and if it is otherwise detected by the Assessing officer, in addition to the tax payable u/s 115BBC, such an assessee will be liable to pay penalty equal to a sum computed @ 10% of the tax payable on such unexplained income as per the provisions of section 115BBE of the Act. A cumulative reading of section 271(1)(c) read with section 115 BBE and 271AAC, would reveal that it is not barred under the Act for an assessee to declare an income in his return as an unexplained income. It may otherwise be detected or found by the Assessing officer also during the assessment proceedings. Prior to 1.4.2013, the tax on such unexplained income either declared by the assessee or detected by the Assessing officer was payable at a normal rates applicable. However, if such an unexplained income was declared by the assessee himself in a return filed u/s 139(1) of the Act, and then no penalty was leviable. However, if such an unexplained income is determined by the Assessing officer on account of concealment of material facts or on account of furnishing of inaccurate particulars of income relating to the computation of income which has the resultant effect of some addition into the taxable returned income then the penalty is liable to be imposed and computed taking into consideration the amount of tax so payable by the assessee on the such unexplained income detected or added by the income tax authorities.
25. It is pertinent to mention here that even though, the Government noticed that the aforesaid provisions of sections 68, 69A, 69B, 69C and 69D can be misused by the assessees to circumvent the 'Voluntary Disclosure Scheme' and to get their income into rotation / accounted for by paying 30% tax and declaring the same under the aforesaid sections in the return of income yet, the Government still has not come with the penalty provisions in respect of such voluntarily declared income in the return of income, rather has chosen to enhance the tax rate form 30% to 60%. The penalty u/s 271AAC of the Act is leviable only if such an income is not declared in the return ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 16 of income. In view of our above discussion of the matter, since in these cases the assesse have decaled the income in question in the return of income itself, the tax at the maximum rate slab duly paid thereupon, the returned income accepted as such without any addition on this issue, hence, there was amount of tax sought to be evaded, hence, it cannot be said to be a fit case for levy of penalty u/s 271(1)(c) of the Act.
26. Even otherwise, a perusal of clause (iii) to section 271(1) reveals that as per the relevant provisions, the Assessing officer may direct a person who as per clause (c) has concealed the particulars of income or furnished inaccurate particulars of such income to pay by way of penalty, a sum which shall not be less than but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income. So as per the above provisions for the levy of penalty there must be some amount of tax sought to be evaded which should be by reason of the concealment of particulars of income or furnishing of inaccurate particulars of income of such income by the assessee. Hence, if there is no amount of tax sought to be evaded by reason of concealment of particulars of income or inaccurate particulars of income, the penalty cannot be computed or to say that the penalty under the provisions will be 'Nil'. It is pertinent to mention here that Explanation-1 to section 271(1)(c) of the Act also provides that if a person fails to offer an explanation or explanation offered is found to be false by the Income-tax Authority or he fails to substantiate such explanation, and that fails to prove the such explanation is bonafide, then the amount added or disallowed in computing the total income of such person as a result thereof, shall for the purpose of clause (c) be deemed to represent the income in respect of which particulars have been concealed. It becomes clear from the reading of Explanation -1 that there must be some addition or disallowance in computing the total income of such person in respect to which it is deemed that he has evaded the payment of tax for computing the penalty so leviable. . However, if there is no addition to the income of the assessee either by way of the positive addition or by way of reducing the losses etc., then there may be no ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 17 amount of tax which the assessee which can be said to be sought to be evaded by the assessee, then under the circumstances, there will not be any penalty leviable or payable by the assessee as per the provisions of the Act and in the circumstances, no penalty will be leviable u/s 271(1)(c) of the Act.
9. The provisions of section 271(1)(c) of the Act are penal in nature and they are required to be strictly construed. These cannot be extended by way of liberal interpretation to include the cases, which otherwise, do not fall within the purview and scope of the provisions of section 271(1)(c) of the Act. In view of this, since the income of Rs.41,55,876/- has already been declared in the revised return, which was valid and filed within the limitation period prescribed for filing the same, hence, in view of our discussion made above, the penalty in respect of the aforesaid income declared is not leviable and the same is accordingly ordered to be deleted.
10. So far as the diff erence of an amount of R s . 2, 0 0 , 0 1 5 / - b e t w e e n t h e i n c o m e s h o w n i n t h e r e v i s e d r e t u r n a n d t h e a m o u n t a c t ua l l y r e c e i v e d i n t h e bank account of the assessee is concerned, the L d . C o u n s el f o r t h e a s s s e s s e e c o u l d n o t a d d r e s s convincing arguments in this respect. The said diff erence between the amount off ered f or taxation and the amount actually received by the assessee was found by the A.O. during the assessment proceedings. Hence, there was concealment of income in respect of the aforesaid amount. Hence the penalty in respect of the income detected during scrutiny assessment proceedings amounting to Rs.2,00,015/- is confirmed @ 100% of the tax amount sought to be evaded on the said income. In view of our findings given above, the a p p e a l o f t h e a s s es s e e i s t r e a t e d a s p a r t l y a l l o w e d .
11. In the result, the appeal of the assessee is partly allowed."
6. Since the Ld. DR has not pointed out any distinguishing fact in the present case, hence, following the decision of the Tribunal in the case of 'Gajjan Singh Thind vs ACIT' (supra) for sake of consistency, the penalty levied by the Assessing Officer of Rs. 19,55,242/- declared in the revised return is ordered to be deleted, whereas, the penalty @ ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 18 100% of the tax amount sought to be evaded in respect of the difference of amount received from share profits and the amount decaled in the revised return i.e. on the income of Rs. 40,015/- is hereby confirmed.
In the result, the appeal of the assessee is treated as partly allowed.
Order pronounced in the Open Court on 30.09.2019.
Sd/- Sd/- (एन. के. सैनी / N.K. SAINI) (संजय गग! / SANJAY GARG) उपा#य$ /Vice President या%यकसद&य/ Judicial Member Dated : 30.09.2019 "आर.के."
आदे शक)% त2ल3पअ4े3षत/ Copy of the order forwarded to :
1. अपीलाथ#/ The Appellant
2. %&यथ#/ The Respondent
3. आयकरआयु5त/ CIT
4. आयकरआय5 ु त (अपील)/ The CIT(A)
5. 3वभागीय% त न7ध, आयकरअपील-यआ7धकरण, च9डीगढ़/ DR, ITAT, CHANDIGARH
6. गाड फाईल/ Guard File आदे शानस ु ार/ By order, सहायकपंजीकार/ Assistant Registrar ITA No. 1403-chd-2018 Smt. Parkash Kaur, Ludhiana 19