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Before: Shri I.C. Sudhir & Shri L.P. Sahu
ORDER Per L.P. Sahu, A.M.: This is an appeal filed by the Revenue against the order dated 17.09.2015 of the ld. CIT(A)-XXII, New Delhi for the assessment year 2009-10 on the following grounds of appeal : “1. On the facts and circumstances of the case and in law, Ld. CIT(A) has erred in deleting the penalty u/s 271(1)(d) of the I.T. Act, 1961 amounting to Rs. 11,20,000/- by accepting the contention of the assessee that omission to include an amount of Rs. 32,72,639/-being the value of superannuation benefit in the FBI return was a clerical error, without any supporting evidence provided by the assessee.
2. On the facts and circumstances of the case and in law, Ld. CIT(A) has erred in deleting the penalty u/s 271(1)(d) of the I.T. Act, 1961 amounting to Rs. 11, 20,0007- on the ground that bonafides of assessee's explanation cannot be questioned ignoring the fact that the assessee had not provided any evidence in support of its explanation.
ITA No. 6417/Del./2015 2
3. On the facts and circumstances of the case and in law, Ld. CIT(A) has erred in deleting the penalty u/s 271(1)(d) of the I.T. Act, 1961 amounting to Rs.11, 20,000/- by ignoring the fact that the assessee did not explain to the Assessing Officer or the CIT(A) as to in what circumstances and on account of whose mistake the value of superannuation benefit was not included in the FBT return and is therefore squarely hit by the provisions of Explanation 1 to section 271 of the I.T. Act, 1961.
4. On the facts and circumstances of the case and in law, Ld. CIT(A) has erred in deleting the penalty u/s 271(1)(d) of the I.T. Act, 1961 amounting to Rs. 11,20,000/- ignoring the fact that in view of Explanation 1 to section 271(1) of the I.T. Act, 1961 the onus is on the assessee to show by cogent and reliable evidence that there was no concealment of FBT and which the assessee has failed to do. 5. On the facts and circumstances of the case and in law, Ld. CIT(A) has erred in deleting the penalty u/s 271(1)(d) of the I.T. Act, 1961 amounting to Rs.11, 20,000/- by accepting the contention of the assessee that quantum of error was negligible in percentage term ignoring the fact that there is no provision in the I.T. Act, 1961 whereby leviability of penalty is determined on percentage of error. 6. On the facts and circumstances of the case and in law, Ld. CIT(A) has erred in deleting the penalty u/s 271(1)(d) of the I.T. Act, 1961 amounting to Rs.11, 20,000/- ignoring the ratio of decision of the Hon'ble Supreme Court in the case of MAK Data Pvt. Ltd. vs. CIT (2013) 358 ITR 593 (SC) wherein it has been held that voluntary disclosure does not release the assessee from the mischief of penal proceedings. 7. On the facts and circumstances of the case and in law, Ld. CIT(A) has erred in deleting the penalty u/s 271(1)(d) of the IT. Act, 1961 amounting to Rs.11, 20,000/- ignoring the fact that the offer made by the assessee to include the value of fringe benefit of Superannuation Contribution in its revised computation of FBT furnished during the course of assessment proceedings was made after specific query in this regard by the Assessing Officer vide note sheet entry dated 15/11/2011 and hence was not voluntary.”
ITA No. 6417/Del./2015 3
The brief facts of the case are that the assessee filed Fringe Benefit Tax (FBT) return on 29.09.2009 declaring the FBT of Rs.8,55,31,368/-. The case was selected for scrutiny and during the assessment proceedings, the AO observed that the assessee has not included superannuation contribution of Rs.32,72,639/- in the value of FBT. In this regard, the assessee submitted vide letter dated 09.12.2011 as under : “That this amount being value of FBT on account of superannuation contribution was inadvertently omitted while punching the data in the system at the time of filing the return. Now, the assessee has included the same amount in the revised computation.”
The AO was not satisfied with this reply and enhanced the value of FBT by Rs.32,72,639/-. The ld. CIT(A) confirmed the addition. The Assessing Officer initiated penalty proceedings and imposed penalty of Rs.11,20,000/- u/s 271(1)(d) for furnishing inaccurate particulars of FBT. Aggrieved by the penalty order, the assessee appealed before the ld. CIT(A), who allowed the appeal of the assessee. Aggrieved by the order of ld. CIT(A), the Revenue is in appeal before the Tribunal.
The ld. DR relied on the order of Assessing Officer and submitted that Assessing Officer has rightly imposed the penalty on concealment of FBT. The assessee did not include superannuation contribution in the value of FBT and therefore, it is a clear concealment of FBT. Had it not been taken for scrutiny, the assessee would have gone escaped.
On the other hand, the ld. DR relied on the order of ld. CIT(A). He also submitted a small paper book containing pages 1 to 22.
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After hearing both the parties and perusing the materials available on record and the orders of the authorities below, we find that the assessee had submitted before the AO that it was a clerical mistake committed by the staff. The assessee had no intention to conceal the value of FBT in regard to superannuation contribution. The ld. CIT(A) has done a good order which does not require any interference. The findings of the ld. CIT(A) are as under : “5. The appellant’s contentions have been examined. The decision in the case of Zoom Communication Pvt. Ltd deals with a situation where unsustainable and untenable claims are made in the return and that unscrupulous assessees take benefit of the fact that only a small percentage of returns are picked up for scrutiny. However, facts in the case of appellant are totally different. In the present case, the appellant has claimed that the omission was due to clerical error. Considering the quantum of error, which is negligible in percentage terms, the bonafides of the appellant’s explanation cannot be question. The corresponding amount was offered for tax by the appellant during the assessment proceedings. There has been no suppression of material facts. Therefore, the penalty levied is cancelled.”
In view of the aforesaid findings, we do not find any merit in the appeal of the Revenue and the same deserves to be dismissed.