GVK JAIPUR EXPRESSWAY P LTD.,JAIPUR vs. ACIT, JAIPUR
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 the assessee acted in a bona fide manner by correcting the mistake and offering the income for taxation during assessment. The absence of due care does not automatically imply concealment of income.
What were the facts?
The assessee company initially claimed dividend income as exempt. During assessment, it revised its computation, offering the amount for taxation as it was mistakenly treated as dividend income instead of short-term capital gains. The Assessing Officer initiated penalty proceedings.
What were the issues?
Whether penalty under Section 271(1)(c) is leviable when an assessee corrects a bona fide mistake and offers income for taxation during assessment proceedings.
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.
- Price Waterhouse Coopers Pvt. Ltd. v. CIT359 citing348 ITR 306 · 2012 · SC
- CIT v. Escorts Finance Ltd.108 citing328 ITR 44 · 2010 · HC
Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 140/JP/2013
PER SHRI KUL BHARAT, JM.
The appeal by the assessee is directed against the order of ld. CIT (Appeals)-
III, Jaipur dated 15.11.2012 pertaining to assessment year 2007-08. The assessee
has raised the following ground of appeal :-
On the facts and in the circumstances of the case the ld. CIT (A) has grossly erred in upholding the levy of penalty of Rs. 24,87,400/- in the case of the assessee.
1.1. That the ld. CIT (A) further erred in ignoring the fact that the assessee company, itself has worked out the amounting capital gains included in dividend income and deposited the taxes thereon being mistake inadvertently taken place, thus the penalty so uphold deserves to be deleted.
1.2. That the ld. CIT (A) has further erred in not accepting the explanation of the assessee who acted in bona fide manner and by sufficient reason explain the circumstances leading to mistake, thus the resultant confirmation of penalty u/ 271(1)(c) at Rs. 24,87,400/- deserves to be deleted.
2 ITA No. 140/JP/2013 M/s. GVK Jaipur Expressway P Ltd.
Briefly stated the facts of the case are that the case of the assessee was
picked up for scrutiny assessment and the assessment under section 143(3) of the
Income Tax Act, 1961 (hereinafter referred to as the Act) was framed vide order dated 30th December, 2009. While framing the assessment, the AO also initiated
penalty proceedings for concealing the particulars of income. During the course of
assessment proceedings, the assessee filed vide letter dated 23th October, 2009
revised computation thereby the assessee submitted that while filing the return of
income for the year under consideration, the assessee company had claimed an
amount of Rs. 1,72,62,082.58 as dividend income and the same has been claimed
exempt. It was submitted that inadvertently the same has been claimed as exempt
which was offered for taxation. The AO thus computed the income of the assessee
as per the revised computation filed by the assessee. The AO also initiated penalty
proceedings in respect of the income declared during the course of assessment
proceedings. Aggrieved by this, the assessee preferred an appeal before the ld. CIT
(A), who however confirmed the penalty.
The ld. Counsel for the assessee reiterated the submissions as made in the
written submission. He submitted that the assessee company had declared a sum of
Rs. 1,72,62,082.58 as dividend income and claimed the same as exempt income.
Later on, while preparing a reconciliation statement of investment in mutual fund it
came to the notice of the assessee that out of various investment in mutual fund
some were redeemed and reinvested and the difference between the sale proceeds
of the units of the mutual funds and the amount invested was wrongly considered as
dividend income in place of Short Term Capital Gain. Realizing this mistake, the
3 ITA No. 140/JP/2013 M/s. GVK Jaipur Expressway P Ltd.
assessee during the course of assessment proceedings filed revised details of
investment and transactions made in the Mutual Fund during the year and correct
working of income from short term capital gain and dividends which inadvertently
was claimed as exempt income in the return filed and accordingly the same was suo-
moto offered for taxation by the assessee through revised computation and due tax
was deposited on account of short term capital gain. He submitted that it is
noteworthy that the AO had not made any enquiry or investigation. He submitted
that the assessee company acted in a bona fide manner and submitted sufficient
explanation before the AO regarding the circumstances leading to the bona fide
mistake. He submitted that the assessee had not concealed particulars of income.
There is no information suggesting any deliberate or willful concealment of
income/particulars in the return of income filed. The ld. Counsel submitted that the
Hon’ble Apex Court in the case of Sir Shadi Lal Sugar & General Mills Ltd. vs. CIT,
162 ITR 705 (SC) held “ that from the assessee agreeing to addition to his income it
does not follow that the amount agreed to be added was concealed income. The
assessee has only accepted certain amount to be taxed and he has not accepted
that it has deliberately furnished inaccurate particulars or concealed any income
within the meaning of section 271(1)(c) of I.T. Act. The Hon’ble Delhi High Court in
the case of CIT vs. Escorts Finance Ltd. 328 ITR 44 (Del.) held that in the event of
an inadvertent error the assessee making correction and filing revised return and
offering for taxation during the assessment proceedings, no penalty under section
271(1)(c) of the Act is leviable.
3.1. On the contrary, the ld. D/R supported the orders of the authorities below. He
submitted that it is only during the course of assessment proceedings the assessee
4 ITA No. 140/JP/2013 M/s. GVK Jaipur Expressway P Ltd.
has come with a revised computation and offered the income which was not offered
for taxation in the return of income. Under these facts, he submitted that it cannot
be concluded that the conduct of the assessee was bona fide.
3.2. We have heard rival contentions and perused the material available on
record. It is not disputed that the assessee itself has offered for taxation the income
which was claimed to be exempt in the return of income. It is submitted that it was
because of the error which resulted in claiming the exempt income. Reliance is
placed on the judgment of the Hon’ble Supreme Court in the case of Price
Waterhouse Coopers Pvt. Ltd. vs. CIT, 348 ITR 306 (SC) wherein the Hon’ble
Supreme Court has held that the assessee should have been careful cannot be
doubted, but the absence of due care, in a case such as the present, does not mean
that the assessee is guilty of either furnishing inaccurate particulars or attempting to
conceal its income. The Hon’ble Apex Court was of the opinion that on the peculiar
facts, the imposition of penalty on the assessee is not justified. In the present case
also during the course of assessment proceedings, the assessee realized that out of
various investments in mutual fund some were redeemed and reinvested and the
difference between the sale proceeds of the units of the mutual funds and the
amount invested was wrongly considered as dividend income instead of short term
capital gain. The ld. CIT (A) has rejected the appeal of the assessee by relying on
the judgment of the Hon’ble Kerala High Court in the case of CIT vs. Kerala
Transport Co., 134 Taxman 320 (Ker.). On the contrary, ld. Counsel has relied upon
the judgment of the Hon’ble Delhi High Court in the case of CIT vs. Escorts Finance
Ltd. (supra). It was pointed out by the ld. Counsel for the assessee that in other
years also such mistake occurred and the department has accepted the explanation
5 ITA No. 140/JP/2013 M/s. GVK Jaipur Expressway P Ltd.
given by the assessee and has not imposed the penalty. This fact is not controverted
by the revenue. Therefore, under the peculiarity of the facts in the present case,
relying on the judgment of the Hon’ble Supreme Court (supra) and the judgment of
the Hon’ble Delhi High Court (supra), we are of the view that the ld. CIT (A) ought
not to have sustained the penalty. Therefore, we set aside the order of ld. CIT (A)
and direct the AO to delete the penalty. The ground of the assessee is allowed.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 30/01/2017.
Sd/- Sd/- ( dqy Hkkjr) ¼foØe flag ;kno½ (VIKRAM SINGH YADAV) ( KUL BHARAT ) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Jaipur Dated:- 30/01/2017. Das/ आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू
The Appellant- M/s. GVK Jaipur Expressway Pvt. Ltd., Jaipur. 2. The Respondent- The ACIT Range-7, Jaipur. 3. The CIT, 4. The CIT (A) 5. The DR, ITAT, Jaipur 6. Guard File (ITA No. 140/JP/2013) vkns'kkuqlkj@ By order,
सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत
6 ITA No. 140/JP/2013 M/s. GVK Jaipur Expressway P Ltd.
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