AMEET VIPIN DESAI,MUMBAI vs. ITO - 24 (1)(1), MUMBAI
In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal held that since the double claim of speculation loss did not result in any reduction of income for the year and was due to a bona fide human error, it did not constitute furnishing inaccurate particulars of income. Therefore, the penalty levied was not sustainable.
What were the facts?
The assessee claimed a speculation loss twice in its financial statements, once in the profit and loss account and again as a short-term capital loss. Although this double claim was made, the loss was not set off against any other income for the year. The assessee attributed this to a bona fide mistake by the accountant preparing the return.
What were the issues?
Whether a bona fide human error in claiming a loss twice, without any tax benefit, warrants a penalty for furnishing inaccurate particulars of income.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(2)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- Union of India v. Dharmendra Textile Processors501 citing306 ITR 277 · 2008 · SC
- CIT v. Zoom Communication (P) Ltd.330 citing327 ITR 510 · 2010 · HC
Income Tax Appellate Tribunal, MUMBAI BENCHES “A”, MUMBAI
Before: Shri Saktijit Dey & Shri G. MANJUNATHA,
आदेश / O R D E R
Per G. Manjunatha, Accountant Member
This appeal filed by the assessee is directed against order of the Ld CIT(A)-36, Mumbai, dated 01/06/2018 and it pertains to AY-2013-14. The assessee has raised following grounds of appeal:-
2 Shri Ameet Vipin Desai “1. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in confirming in penalty u/s 271(l)(c) of Rs. 1,41,620.
2. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in confirming stand of A.O. where Ld. A.O. did not strike off relevant limb of Penalty in Penalty Notice issued on 29/12/2015.
3. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in confirming stand of A.O. where assessee committed technical mistake due to oversight system error and claimed double benefit of Speculation Loss where this speculation loss is not set off in subsequent Years.
4. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in confirming stand of A.O where there is bonafide human error and there is no intention to evade tax and even after the assessment there is only demand raised of Rs. 2470 which shows the correct intention of Assessee.”
The brief facts of the case are that the assessee is an individual, engaged in the business of trading in commodity futures and commodity derivatives filed his return of income for Assessment Year 2013-14 on 30/09/2013, declaring total income at Rs.10,65,330/-. The case was selected for scrutiny and the assessment was completed u/s 143(3) of the Income Tax Act (hereinafter ‘the Act’) on 29/12/2015 determining total income at Rs.10,68,460/- after making additions towards speculation loss of Rs.4,58,315/-. Thereafter, the AO Initiated penalty proceedings under section 271(1)(c) of the Act, for furnishing of inaccurate particulars of income and called upon the assessee to explain as to why penalty shall not be levied for excessive claim of speculation loss of Rs.4,58,315/-. In response, the assessee submitted that it has neither furnished inaccurate particulars of income nor concealed particulars of income, because, by inadvertent mistake, it has debited speculation loss in the profit and loss account, even though, the same has been separately computed under the head capital gains.
Further, resultant loss has been carried forward to subsequent years, because speculation loss cannot be adjusted against any other income. The assessee further
3 Shri Ameet Vipin Desai contended that the said claim is on account of wrong computation made by the consultant who prepared the income tax return, therefore the same cannot be considered as furnishing inaccurate particulars of income which attracts penalty under section 271(1)(c) of the Act. The AO, after considering relevant submissions of the assessee and also relied upon the decision of Honourable Supreme Court in the case of Union of India vs Dharmendra Textile Processors (306 ITR 277)(SC) held that the assessee has failed to offer any explanation for claiming speculation loss under the head income from business, even though, the said loss has been carried forward to subsequent years, therefore, he opined that the assessee has furnished inaccurate particulars of income within the meaning of section 271(1)(c) of the Act and accordingly levied penalty of Rs.1,41,620/-, which is 100% tax sought to be evaded.
Aggrieved by the penalty order, the assessee preferred appeal before the Ld. CIT(A). Before the Ld. CIT(A), the assessee reiterated his submissions made before the AO to argue that speculation loss has been debited into profit and loss account by inadvertent mistakes of accountant who prepared income tax return, but such loss has not been claimed as deduction against any other income for the year under consideration, therefore, same cannot be considered as furnishing of inaccurate particulars of income.
The Ld CIT(A), after considering relevant submissions of the assessee and also relied upon various judicial precedence including the decision of Hon’ble Delhi High Court in the case of CIT vs Zoom Communication (P) Ltd. reported in 327 ITR 510(Delhi)
4 Shri Ameet Vipin Desai held that the assessee has deliberately claimed speculation loss in the profit loss account without any basis and explanation furnished by him for making such claim is not bona-fide, therefore, explanation (1) to section 271(1)(c) of the Act would be attracted and hence there is no reason to interfere with the findings of the AO in levying penalty u/s 271(1)(c) of the Act.
Aggrieved by the order of the Ld CIT(A), the assessee is in appeal before us.
The Ld. AR for the assessee submitted that the Ld CIT(A) was erred in confirming penalty levied u/s 271(1)(c) of the Act, in respect of speculation loss of Rs.4,58,314 without appreciating the fact that the said mistake was bona fide error of accountant who prepared Income tax return as per which loss has been debited into the head profits and loss account and also shown in the capital loss, but the assessee did not take benefit of such loss and there is no revenue loss, therefore, the same cannot be considered as furnishing of inaccurate particulars of income which attracts penalty under section 271(1)(c) of the Act. In this regard, he relied upon the decision of the Hon’ble Supreme Court in the case of Price Waterhouse Coopers Pvt Ltd in Civil Appeal no.6924 of 2012.
The ld. DR on the other hand, strongly supported order of the Ld. CIT(A) and submitted that it is a clear case of deliberate attempt to conceal particulars of income by furnishing inaccurate particulars of income in respect of speculation loss which is evident from the fact that the assessee has debited such loss into profit and loss account and also claimed under the head short-term capital loss. Had the case was not selected for 5 Shri Ameet Vipin Desai scrutiny, the same would go unnoticed. Therefore, there is no merit in the arguments of the assessee that assessee is not taking benefit of such double claim of speculation loss and hence, the AO was right in levying penalty u/s 271(1)(c) of the Act.
We have heard both parties, perused the material available on record and gone through the orders of authorities below. It is an admitted fact that the assessee has claimed speculation loss twice in its financial statement. The assessee has debited speculation loss into profit & loss account and carried forward business loss to subsequent years. He has also claimed such loss under the head short-term capital loss and carried forward the same to subsequent years. Although, there is double claim in respect of speculation loss, but it is evident from the financial statement filed for the relevant year including statement of total income, the said loss has not been set off against any other income for the year. When the loss has not been set off against any other income which results into reduction of income for the year under consideration and also the fact that the assessee has explained said mistakes and attributed it to the accountant who prepared the income tax return, there is no reason for the AO to doubt explanation offered by the assessee that the claim was made on bona fides mistake committed by an accountant which we all prone to do. We further noted that when the assessee has explained the reasons for making a double claim in respect of a speculation loss and also made it very clear that such loss has not been set off against any income, then the AO was erred in coming to the conclusion that the assessee has furnished inaccurate particulars of income within the meaning of section 271(1)(c) of the 6 Shri Ameet Vipin Desai Act. This legal proposition is supported by the decision of the honourable Supreme Court in the case of Price Waterhouse Coopers Pvt Ltd in Civil Appeal no.6924 of 2012, where the court held that when there is bona fide mistake in the claim which is on account of human error which we all prone to do in normal circumstances, the same cannot be considered as furnishing of incorrect particulars of income which warrants levy a penalty under section 271(1)(c) of the Act. Therefore, we are of the considered view that the ld AO as well as ld. CIT(A) were erred in sustaining penalty levied u/s 271(1)(c) of the Act in respect of speculation loss, hence, we direct the AO to delete penalty levied u/s 271(1)(c) of the Act.
In the result, appeal filed by the assessee is allowed.
Order pronounced in the open Court on 28/06/2019. Sd/- Sd/- (Saktijit Dey) (G. Manjunatha) �या�यक सद�य /JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER मुंबई Mumbai; �दनांक Dated : 28/06/2019 f{x~{tÜ f{x~{tÜ? P.S //.�न.स. f{x~{tÜ f{x~{tÜ आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant (Respective assessee) 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT, Mumbai. 4. आयकर आयु�त / CIT(A)- , Mumbai, 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER,
Similar judgments
Other orders that rely on the same authority or decide the same section.
- M/S. Oil Industry Development Board, New… vs DCIT, New DelhiDelhi4 Apr 2019Allowed
Also relies on CIT v. Zoom Communication (P) Ltd. and 1 other authority
The Tribunal held that merely making a claim which is not sustainable in law does not amount to furnishing inaccurate particulars of income. The claim under Section 35 was based on the same grants that were allowed under...
- Nse It Ltd, Mumbai vs DCIT 8(2), MumbaiMumbai28 Mar 2018Allowed
Also relies on CIT v. Zoom Communication (P) Ltd. and 1 other authority
The Tribunal held that the assessee demonstrated bona fide by voluntarily withdrawing the claim before being confronted by the Revenue. Therefore, the penalty levied under Section 271(1)(c) was not exigible.
- Nandkishor & Co., Mumbai vs Asst CIT Cir 4(2), MumbaiMumbai3 Jun 2016Allowed
Also relies on CIT v. Zoom Communication (P) Ltd. and 1 other authority
The Tribunal held that the assessee had provided bonafide and plausible explanations for the omissions and disallowances. The penalty was not sustainable as the assessee had not concealed particulars of income or furnish...
- Neel Kanth Gum and Chemicals, Jhunjhunu vs ACIT, Circle Jhunjhunu, Income Tax Office…Jaipur9 Apr 2024Allowed
Also relies on CIT v. Zoom Communication (P) Ltd. and 1 other authority
The Tribunal held that the AO's show cause notice for penalty was ambiguous regarding the nature of the default, indicating a lack of application of mind. Furthermore, the Tribunal noted that penalty had been deleted on ...
- Machinfabrik, Mumbai vs Income Tax (Appeals), Income Tax…Mumbai27 Apr 2023Allowed
Also relies on CIT v. Zoom Communication (P) Ltd. and 1 other authority
The Tribunal held that penalty under Section 271(1)(c) cannot be levied when the addition to income is made on an estimated basis. Following various judicial precedents, the penalty levied was quashed.
More judgments on Section 271(1)(c)
- Ajaybhai Dineshbhai Bagdai, Near Central… vs The Income Tax Officer, Ward-1(2)(1), New…ITA 74/RJT/2026[2013-14]Status: Disposed19 Oct 2026AY 2013-14
- Shalin Jayantbhai Desai, Vadodara vs ACIT, Circle-4(2), Vadodara Present…ITA 2569/AHD/2026[2010-11]Status: Disposed19 Oct 2026AY 2010-11
- Neo Structo Construction P. Ltd., Ahmedabad vs The Pr. CIT- 3, AhmedabadITA 1216/AHD/2026[2015-2016]Status: Disposed16 Oct 2026AY 2015-2016
- Hetal Vinodchandra Sheth, Ahmedabad vs The ITO, Ward-5(3)(1), AhmedabadITA 2370/AHD/2025[2014-15]Status: Disposed16 Oct 2026AY 2014-15
- Hetal Vinodchandra Sheth, Ahmedabad vs The ITO, Ward-5(3)(1), AhmedabadITA 2369/AHD/2025[2014-15]Status: Disposed16 Oct 2026AY 2014-15
Latest GST High Court judgments
Search GST case law →- R.K.Service Station, Balasore vs. Commissioner CT And GST Odisha, CuttackOrissa · 31 Oct 2026
- Tankala Soumya vs. Assistant Commissioner Of State Tax, CT And GST, Rayagada Circle, RayagadaOrissa · 31 Oct 2026
- M/S Pooja, Town Hallroad, Cuttack vs. State Tax Officer, Cuttack-I West Circle,CuttackOrissa · 31 Oct 2026
- M/S Chicvogue Fashions Lip, Ganjam vs. State Tax Officer Bhubaneswar- Ii CircleOrissa · 31 Oct 2026
- M/S Priya, Townhall Road, Cuttack vs. Superintendent Cuttack- I Range, CuttackOrissa · 31 Oct 2026