GAGAN ASHOK KHEMKA,MUMBAI vs. ASST CIT CIR 21(1), MUMBAI

PER RAVISH SOOD, JM

2. The CIT(A) erred not appreciating the fact that the claim of set off of brought forward loss on derivatives for the A.Y. 2009-10 has been made in the return filed for A.Y. 2010-11 much before the same was disallowed by the A.O in the assessment order for the A.Y. 2009-10.

Shri Gagan Ashok Khemka Vs. ACIT, Circle-21(1)

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2. Briefly stated, the assessee who is engaged in the business of trading and investment in shares etc. had filed its return of income for A.Y 2010-11 on 15.10.2010, declaring a total income of Rs.1,61,14,677/-. Subsequently, the case of the assessee was selected for scrutiny assessment under Sec. 143(2) of the Act.

3. During the course of the assessment proceedings, it was observed by the A.O that the assessee in his return of income had brought forward loss on derivatives from the immediately preceding year i.e A.Y 2009-10, and had claimed „set off‟ of the same against the current years business income of Rs.56,65,321/-. Observing that the aforesaid loss on derivatives was disallowed by the A.O while framing the assessment for the immediately preceding year viz. A.Y. 2009-10, the A.O disallowed the assesse‟s claim for „set off‟ of the said loss against the income for the year under consideration. At the time of culmination of the assessment, the A.O had inter alia initiated penalty proceedings under Sec. 271(1)(c) of the Act, for furnishing of inaccurate particulars of income by the assessee on the aforesaid count.

4. On the basis of a „show cause‟ notice, dated 26.03.2013 issued under Sec. 274 r.w.s 271(1)(c) of the Act, the A.O called upon the assessee to explain as to why penalty under Sec. 271(1)(c) may not be imposed on him for raising of a wrong claim of „set off‟ of brought forward loss on derivatives of Rs.56,65,321/-, against his income for the year under consideration. As the reply filed by the assessee did not find favour with the A.O, therefore, he imposed penalty under Sec. 271(1)(c) on him for raising of a wrong claim in his return of income for the year under consideration.

5. Aggrieved, the assessee assailed the order passed by the A.O under Sec. 271(1)(c) in appeal before the CIT(A). However, the CIT(A) not finding favour with the contentions advanced by the assessee upheld the penalty imposed by the A.O under Sec. 271(1)(c) of the Act, and dismissed the appeal.

6. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. On a perusal of the grounds of appeal, we find, that the assessee has Shri Gagan Ashok Khemka Vs. ACIT, Circle-21(1) assailed the imposition of penalty to the extent the same pertains to the disallowance of his claim for „set off‟ of the brought forward loss on derivatives of A.Y 2009-10 amounting to Rs.56,65,321/-, against his income for the year under consideration i.e A.Y 2010-11. On a specific query by the bench as regards the status of the appeal filed against the quantum assessment, it was submitted by the ld. A.R that the same was pending before the CIT(A). The ld. A.R took us through the facts of the case. It was averred by the ld. A.R that a simpliciter disallowance of the assesses claim for „set off‟ of the brought forward loss on derivatives of A.Y. 2009-10, as against his income for the year under consideration would not justify levy of penalty under Sec. 271(1)(c) of the Act. It was submitted by the ld. A.R, that his claim of loss on derivatives was disallowed in A.Y. 2009-10 only for the reason that the same could not be substantiated on the basis of supporting documentary evidence viz. certificate from broker etc. Accordingly, it was submitted by the ld. A.R, that it was not the case of the revenue that the assessee had raised a bogus claim of loss on derivatives in the immediately preceding year, which thereafter was brought forward to the year under consideration and sought to be „set off‟ against the current year‟s income. In sum and substance, it was averred by the ld. A.R that the loss on derivatives in A.Y. 2009-10 was disallowed for the reason that the same had remained unproved on the basis of supporting documentary evidence. Apart from that, it was submitted by the ld. A.R that as the return of income for the year under consideration i.e A.Y 2010-11 was filed much prior to the framing of the assessment for the immediately preceding year i.e A.Y. 2009-10, therefore, there was no occasion for the assessee to have anticipated that his claim of loss on derivatives would be disallowed, therein disentitling him from carrying forward such unabsorbed loss for „set off‟ against the income for the succeeding year. It was submitted by the ld. A.R, that penalty under Sec. 271(1)(c) was to be imposed on account of commission of a wrongful act, and the same was to be determined as per the law operating on the date on which such wrongful act was committed. It was thus submitted by the ld. A.R, that as the levy of penalty under Sec. 271(1)(c) has to be related to the date of filing of the return of income by the assessee, therefore, keeping in view the fact that as on the date of filing of the return of income for the year under consideration viz. A.Y. 2010-11, there was no basis for disentitling the assessee from „setting off‟ the brought forward loss on derivatives of A.Y. 2009-10, against his income for the current year, therefore, the levy of penalty under the aforesaid statutory provision could not have been imposed. In support of his aforesaid contention the ld. A.R had Shri Gagan Ashok Khemka Vs. ACIT, Circle-21(1) relied on the judgment of the Hon‟ble Supreme Court in the case of Brij Mohan Vs. CIT (1979) 120 ITR 1 (SC).

7. Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the orders of the lower authorities. It was submitted by the ld. D.R, that as the assessee had raised a wrong claim of „set off‟ of the brought forward loss on derivatives of the preceding year i.e A.Y 2009- 10, therefore, he had rightly been visited with penalty under Sec. 271(1)(c) of the Act.

aforesaid observations, we are of the considered view that the bonafides of the assessee as regards raising of a claim for „set off‟ of the brought forward loss on derivatives, against his income for the year under consideration stands clearly established. Apart from that, we find, that the assesse‟s claim for loss on derivatives was disallowed while framing of the assessment for the preceding year i.e A.Y 2009-10, only for the reason, that the assessee had failed to substantiate the genuineness of the said claim on the basis of supporting documents i.e certificate from broker etc. In the backdrop of the aforesaid facts, we are of a strong conviction, that though an unproved claim of an assessee would lead to a consequential addition/disallowance, however, the same on such standalone basis cannot justify imposition of penalty under Sec. 271(1)(c) of the Act. Our aforesaid view is fortified by the judgment of the Hon’ble High Court of Bombay in the case of CIT Vs. Upendra V. Mithani (ITA (L) No. 1860 of 2009), dated 05.08.2009, wherein the Hon’ble High Court had observed that unless the claim of the assessee is disproved, no penalty under Sec. 271(1)(c) could be imposed, and had held as under: "The issue involved in the appeal revolves around deletion of penalty under Section 271(1)(c) of the I.T. Act. The Tribunal has concurred with the view taken by the Commissioner of Income Tax (A). The Commissioner of Income Tax (A) has rightly taken a view that no penalty can be imposed if the facts and circumstances are equally consistent with the hypothesis that the amount does not represent concealed income as with the hypothesis that it does. If the assessee gives an explanation which is unproved but not disproved, i.e. it is not accepted but circumstances do not lead to the reasonable and positive inference that the assessee's case is false. The view taken by the Tribunal is a reasonable and possible view. The appeal is without any substance. The same is dismissed in limine with no order as to costs." Also, we are of a strong conviction, that a simpliciter disallowance of a claim of the assessee in the course of the assessment proceedings, cannot on such standalone basis automatically lead to levy of penalty under Sec.271(1)(c). Our aforesaid view is fortified by the judgment of the Hon’ble Supreme Court in the case of Shri T. Ashok Pai Vs. CIT Banglore (2007) 7 SCC 162 (SC). In the aforesaid case, it was observed by the Hon‟ble Apex Court that unless and until there is some evidence to show or some circumstances found from where it can be gathered that there was an intention or desire on the part of the assessee to hide or conceal the income so as to avoid imposition of tax thereon, penalty under Sec.271(1)(c) cannot be imposed. In fact, it was observed by the Hon‟ble Apex Court that in order that a penalty under Sec.271(1)(iii) may be imposed, it has to be proved that the assessee had consciously made Shri Gagan Ashok Khemka Vs. ACIT, Circle-21(1) the concealment or furnished inaccurate particulars of his income. Accordingly, on the basis of our aforesaid observations, we are of the considered view, that the disallowance of the assesses claim for „set off‟ of the brought forward loss pertaining to A.Y. 2009-10, in the totality of the facts of the case could not have justified levy of penalty under Sec. 271(1)(c) of the Act. We thus not being persuaded to subscribe to the view taken by the CIT(A), therefore, „set aside‟ his order, and quash the penalty imposed by the A.O as regards the disallowance of the assesse‟s claim for „setting off‟ of the brought forward loss on derivatives of A.Y 2009-10, against his income for the year under consideration.