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Income Tax Appellate Tribunal, “L” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA, AM & SHRI SANDEEP GOSAIN, JM
सुनवाई क� तार�ख / : 25.10.2017 Date of Hearing घोषणा क� तार�ख / : 03.01.2018 Date of Pronouncement आदेश / O R D E R Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the Order by the Commissioner of Income Tax (Appeals)-37, Mumbai dated 21.03.2016 and pertains to the assessment year (A.Y.) 2011-12.
The grounds of appeal read as under:
(A.Y. 2011-12) Arindam Mitra vs. Asst. CIT 1. a) The learned ld. Commissioner of Income Tax (Appeals) – 37 erred in confirming the levy of penalty of Rs.16,05,662/- without considering the facts and the submission of the Appellant. b) The learned ld. Commissioner of Income Tax (Appeals) – 37 failed to consider the fact that the Appellant had suo motto offered the receipts for tax purpose on the very first submission made before the ACIT, even before any enquiry or query or question is raised by the revenue.
The assessee in this case is an individual engaged in entertainment industry and derives income from salary, profession income and income from other sources.
During the course of assessment proceedings, the Assessing Officer noted that the assessee filed revised computation of income declaring total income of Rs.76,80,478/- as against Rs.24,84,163/- declared in the return of income. The assessee explained before the Assessing Officer that due to the nature of the profession of the assessee there were few receipts which the assessee could not recollect at the time of filing of the return of income. It was further stated that there was no corresponding entries in Form 26AS and the same receipts were shown as current liabilities in the audited balance sheet. However, the Assessing Officer did not comment anything upon the assessee’s explanation. He held that in view of the revised computation of the income filed by the assessee, penalty proceedings u/s. 271(1)(c) of the Act is initiated separately, “for furnishing of inaccurate particulars of income thereby concealing the particulars of income”. In the penalty order, the Assessing Officer also did not accept the assessee’s contention that the assessee relied upon the expertise of tax profession
(A.Y. 2011-12) Arindam Mitra vs. Asst. CIT that the said income was not reflected in the Form 26 AS that the assessee revised the return before any query in this regard by the Revenue. Hence, the penalty was levied.
Upon the assessee’s appeal, the ld. Commissioner of Income Tax (Appeals) also confirmed the addition.
Against this order, the assessee is in appeal before us.
We have heard both the counsels and perused the records. We find that in this case, the assessee has revised the computation before any detection by the Revenue during the course of assessment proceedings. The assessee has explained that in the profession in which the assessee is engaged advances are received and they are accounted in his income as and when the work is done. In the present case, the said amount was mistakenly reflected in the current liabilities in the balance sheet. It is also a plea that there was no corresponding entry in Form 26AS. These submissions of the assessee have not been commented upon by any of the Revenue authorities. This shows that the assessee’s conduct was bona fide and was not contumacious so as to warrant levy of penalty. The Assessing Officer has not specified any reason but himself commented in the assessment order that in view of the revised computation of income, penalty proceedings is initiated for furnishing inaccurate particulars of income thereby concealing particulars of income. This also accentuates the fact that there is no satisfaction by the Assessing Officer for any infraction on the part of assessee, as to whether this is a case of furnishing of inaccurate particulars or (A.Y. 2011-12) Arindam Mitra vs. Asst. CIT concealment of income. Under these circumstances, in our considered opinion, the assessee’s conduct is bona fide and does not warrant visit of the reverse of the penalty u/s. 271(1)(c). In this regard, we also draw support from the decision of the Hon’ble Apex Court in the case of Hindustan Steels Ltd. vs. State of Orrissa [1972] 83 ITR 26 (SC) for the proposition that the assessee need not be visited with the rigour of penalty if the assessee’s conduct is not contumacious.