RAJU BHAUSAHEB ANAP,NASHIK vs. INCOME TAX OFFICER, NASHIK

ORDER

PER DR. DIPAK P. RIPOTE, AM:

2. The learned CIT failed to appreciate that before the CIT, the assesses had duly explained that reporting of income in his case was attributable to wrong action of tax consultant and all the material facts relating thereto along with substantiating evidences in form of complaint filed against Tax Consultant before Economic Wing of Police Department etc. were also furnished by the assesses and therefore, the raised penalty u/s 270A without rebutting the explanation offered by the assesses was not justified in view of provisions of the said Act.

3. The learned CIT ought to have appreciated that the bona fides of the explanation offered by assesses were established from the fact that the assesses, being salaried employee from technical background, was totally dependent upon the tax consultant for filing income tax return and no such incorrect claim was ever made by the assesses either in past years or in subsequent years and therefore, the levy of penalty u/s 270A was not justified in view of the explanation offered by the assesses.” Brief facts of the case :

2. In this case, assessee is an individual salaried employee of BSNL, Nashik and earning income assessable to tax under the head Salaries. He filed Original Return of Income for A.Y.2017- 18 on 29.05.2017 declaring total income of Rs.4,24,780/- and claimed deduction under Chapter VI-A of Rs.2,07,500/-; and refund of Rs.40,150/-.

2.1 A survey action under section 133A of the Act was conducted in the premises of Kishore Patial who e-filed ITR’s of various persons wherein bogus deduction under Chapter VIA 2 Raju Bhausaheb Anap [A] was claimed and the assessee was one among such cases. Kishor Patil, who files IT returns of the salaried employees of various companies and PSUs. That survey collectively revealed calming of bogus deductions under Chapter Vl-A, i.e. deductions under section 80D, 80DDE, 80G, 80GG, 80E and 80EE and also claiming of bogus house property loss i.e. payments towards interest for borrowing loan by Mr. Patil in the IT Returns filed. The ITO (Inv.), along with his report also submitted a list of cases in which Mr. Patil admittedly filed IT returns making bogus claims. In that list, the name of the assessee was also mentioned.

2.2 The Assessing Officer(AO) came to know that the assessee had indulged in obtaining fraudulent refund from the Department by claiming bogus/excess loss under the head House Property and deduction under Chapter VIA apart from suppression of salary income. Therefore, the case was reopened and issued notice under section 148 of the Act dated 25.02.2020. 2.3 The assessee filed return in response to notice under section 148 of the Act on 19.03.2020, wherein Assessee 3 Raju Bhausaheb Anap [A] disclosing his total income of Rs.6,21,730/- i.e. the claim of deduction under Chapter-VIA to Rs.1,57,500/- in place of Rs.2,07,500/- claimed in original return and further claimed loss under the head House Property to the extent of (-) Rs.2,00,000/-. Also, the assessee disclosed income under the head Salaries of Rs.7,79,226/- as against Rs.6,32,280/- disclosed in the Original Return of Income.

2.4 After considering the submissions of the assessee, the Assessing Officer(AO) completed the re-opened assessment proceedings by passing an order under section 143(3) r.w.s 144B of the Act, 1961 on 16.09.2021, accepting the revised income disclosed by the assessee of Rs.6,21,730/-.

4 Raju Bhausaheb Anap [A]

Submission ld.DR : 5. The ld.DR relied on the order of the Lower Authorities. The ld.DR submitted that assessee consciously filed Return of Income claiming deduction under Chapter-VIA fraudulently. It was only because of the survey, the fraudulent act was detected.

Findings &Analysis : 6. In this case, in the assessment order under section 143(3) r.w.s 144B of the Act, 1961 on 16.09.2021, the AO has accepted Return of Income shown in the Return filed in response to notice under section 148. Nowhere in the assessment order, the AO has discussed how the assessee has mis-reported the income. The AO has not identified the specific limb of section 270A(9) of the Act, either in the penalty order or in the assessment order which is applicable in the case of assessee. We find that ITAT Pune in the case of Kishor Digambar Patil(supra) has held that failure on the part of the AO to showcase which of the specific action of the assessee from Clause(a-f) of section 270A(9) was determinant before imposing the impugned penalty under section 5 Raju Bhausaheb Anap [A] 270A of the Act has rendered the entire proceedings invalid and untenable. Similarly, ITAT Mumbai in the case of Saltwater Studio LLP(supra) has held as under : “The question is whether the AO’s action to levy penalty u/s 270A(9) of the Act is sustainable in the given facts of the case. In order to examine that let us have a look at relevant provisions of Section 270(8) &(9) of the Act which reads as under: - “Penalty for under-reporting and misreporting of income. 270A. (1) …………………… (8) Notwithstanding anything contained in sub-section (6) or sub- section (7), where under-reported income is in consequence of any misreporting thereof by any person, the penalty referred to in sub- section (1) shall be equal to two hundred per cent of the amount of tax payable on under-reported income. (9) The cases of misreporting of income referred to in sub-section (8) shall be the following, namely:— (a)misrepresentation or suppression of facts; (b)failure to record investments in the books of account; (c)claim of expenditure not substantiated by any evidence; (d)recording of any false entry in the books of account; (e)failure to record any receipt in books of account having a bearing on total income; and (f)failure to report any international transaction or any transaction deemed to be an international transaction or any specified domestic transaction, to which the provisions of Chapter X apply.”

(a) to (f) of section 270A(9) of the Act. However, a reading of the 6 Raju Bhausaheb Anap [A] reasons given by the AO to levy penalty for misreporting (supra) it is discerned that he has failed to spell out as to how the assessee’s case/additions falls within the ken of instances given in clause (a) to (f) of sub-section (9) of section 270A of the Act. Since AO failed to bring the addition/disallowance he made in quantum assessment, under the ken of (a) to (f) of the sub-section(9) of section 270A of the Act, the penalty levied for misreporting @ 200% cannot be sustained because it is trite law that penalty provisions have to be strictly interpreted. And therefore, taking into consideration, the facts and circumstances of the case, we find that the levy of penalty by the AO u/s 270A of the Act suffers from the vice of non- application of mind as well as violates principles of natural justice. And therefore, the penalty levied on addition of sustained quantum addition of Rs.67,970/- cannot survive. And therefore, it is directed to be deleted.”