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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 556/JP/2018
PER VIJAY PAL RAO, JM :
This appeal by the assessee is directed against the order dated 15th March,
2018 of ld. CIT (A)-3, Jaipur arising from the penalty order passed under section
271(1)(c) of the I.T. Act for the assessment year 2013-14. The assessee has raised
the following grounds :-
“ 1. Under the facts and circumstances of the case, the order passed u/s 271(1)(c) is illegal and bad in law.
The ld. Cit (A) has erred on facts and in law in confirming the levy of penalty of Rs. 9,150/- u/s 271(1)(c) of the IT Act, 1961.
The assessee craves to amend, alter and modify any of the grounds of appeal.
Necessary cost be allowed to the assessee.
2 ITA No. 556/JP/2018 Shri Uday Singh Palawat, Jaipur.
The assessee is an individual and derives income from Salary and interest on
bank deposits. The assessee filed his return of income on 20.07.2013. During the
scrutiny assessment, the AO noted that the assessee has shown interest income of
Rs. 3,51,977/- in his return of income. However, as per 26AS the interest income
earned by the assessee during the year is Rs. 4,14,719/-. When this discrepancy
was pointed out, the assessee accepted the additional income of Rs. 28,348/-. The
AO accordingly made an addition of Rs. 28,348/- while completing the assessment
and also initiated the proceedings for levy of penalty under section 271(1)(c). The
AO finally levied the penalty of Rs. 9,150/- being 100% of tax sought to be evaded
in respect of the said amount of Rs. 28,348/-. The assessee challenged the action of
the AO levying the penalty under section 271(1)(c) before the ld. CIT (A) but could
not succeed.
Before us, the ld. A/R of the assessee has submitted that at the time of filing
the return, the assessee has declared the interest income as per the record available
with the assessee and accordingly the TDS credit was also claimed only in respect of
the said income of Rs. 3,51,977/-. Subsequently, as per the Form 26AS, the correct
amount of interest was revealed and the AO pointed out the discrepancy in the
interest income declared by the assessee and as per the Form 26AS. Thus it was
only due to non-availability of correct amount of interest on FDR, the assessee
declared the income of Rs. 3,51,977/-. The AO has not disputed the fact that the
assessee claimed the TDS credit of Rs. 38,664/- whereas as per the Form 26AS the
TDS credit was Rs. 41,492/-. Hence, the ld. A/R has submitted that it is only
because of incomplete details and inadvertent mistake on the part of the assessee
3 ITA No. 556/JP/2018 Shri Uday Singh Palawat, Jaipur.
which do not fall in the category of either concealment of income or furnishing
inaccurate particulars of income. The ld. A/R has further submitted that even
otherwise the AO in the show cause notice dated 26.10.2015 issued under section
271(1)(c) has not specified the ground for levy of penalty and therefore, the said
notice suffers from illegality in view of the decision of the Hon’ble Karnataka High
Court in the case of Manjunatha Cotton & Ginning Factory, 359 ITR 565 (Kar.).
3.1. On the other hand, the ld. D/R has submitted that it is a clear case of
concealment of income as the assessee has understated the interest income in the
return of income which was detected by the AO and, therefore, the AO is justified in
levying the penalty. He has relied upon the orders of the authorities below.
We have considered the rival submissions as well as the relevant material on
record. The assessee has declared the interest income of Rs. 3,51,977/- and also
claimed TDS credit of Rs. 38,664/-. The AO made an addition of Rs. 28,348/- due to
the discrepancy found in the interest income declared by the assessee and the
interest income appearing in Form 26AS. It is not the case of the assessee that the
assessee has not shown the correct income in its books of accounts or the record
which belonged to the assessee only but the interest income on the FDR is with the
bank and, therefore, the record of interest income and TDS deducted by the bank on
the said income is available with the AO which was considered by the AO while
making this addition. Therefore, when the entire details of interest income was
available in the form 26AS, then the discrepancy of Rs. 28,348/- is only because of
the miscalculation of the interest income by the assessee. There was no scope of
concealing the said income as it is already available with the department in Form
26AS which was beyond the control of the assessee and, therefore, when the
4 ITA No. 556/JP/2018 Shri Uday Singh Palawat, Jaipur.
assessee has explained the reasons of declaring less income which were not found
to be malafide, then while considering the explanation of the assessee that the
interest income was declared as per the details available with the assessee at that
point of time and further the assessee has claimed the TDS only against the said
income clearly made out a case of bonafide explanation in terms of clause-B of
Explanation-1 to section 271(1)(c). In the case of the assessee, the entire interest
income was subjected to TDS and, therefore, in the facts and circumstances of the
case, we find that the penalty levied by the AO is not sustainable and the same is
cancelled.
In the result, appeal of the assessee is allowed.
Order is pronounced in the open court on 02/08/2018.
Sd/- Sd/- (foØe flag ;kno) (fot; iky jkWo ½ (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Jaipur Dated:- 02/08/2018. Das/
आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू
The Appellant-Shri Uday Singh Palawat, Jaipur. 2. The Respondent – The ITO Ward 7(1), Jaipur. 3. The CIT(A). 4. The CIT, 5. The DR, ITAT, Jaipur 6. Guard File (ITA No. 556/JP/2018) vkns'kkuqlkj@ By order,
सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत
5 ITA No. 556/JP/2018 Shri Uday Singh Palawat, Jaipur.