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Income Tax Appellate Tribunal, DELHI BENCH ‘D’ NEW DELHI
Before: SHRI G.D. AGRAWAL & SHRI K.N. CHARRY
PER G.D. AGRAWAL, VICE PRESIDENT
The only ground raised in this appeal raised by the assessee is against the levy of penalty of Rs. 10,47,973/- u/s 271(1)(c) of the Income Tax Act, 1961.
At the time of hearing before us, it is stated by the learned counsel that for the year under consideration, the assessee filed the return disclosing the income of Rs. 1,20,05,040/- which was accepted in toto in the order passed u/s 143(3).
However, there was an inadvertent mistake while filling the column of carry Assessment year 2012-13 forward losses by the clerical staff. That there was a carry forward loss under the head capital gains amounting to Rs. 50,87,429/- for assessment year 2011-12.
However, due to clerical error, the similar loss was also mentioned in assessment year 2010-11. Thus, as against the actual long term capital loss of Rs. 50,87,429/- for assessment year 2011-12, which was claimed twice, one in assessment year 2010-11 and also in 2011-12. However, no set off of such loss is claimed by the assessee, either in the year under appeal or even in subsequent year. Thus, there was only a silly mistake incurred by the clerical staff. That there was no concealment of income or furnishing of inaccurate particulars as the income returned has been accepted after due scrutiny. In support of this contention, he relied upon the decision of Hon’ble Apex Court in the case of Price Warehouse Coopers Pvt. Ltd. vs CIT (2012) 348 ITR 306 (S.C.).
Ld. DR, on the other hand, relied upon the order of the authorities below.
He stated that had the case not been selected for scrutiny, the assessee would have been in a position to claim wrong carry forward of loss which could have been set off in the subsequent year whenever there would have been long term capital gain.
Thus, there was furnishing of inaccurate particulars to the extent of wrong disclosure of carry forward of long term capital gain.
Assessment year 2012-13 4. We have heard the arguments of both the sides and perused the material placed before us. After considering the facts of the case and argument of both the sides, we are of the opinion that the issue under consideration is squarely covered by the decision of Hon’ble Apex Court in the case of Price Waterhouse Coopers Pvt. Ltd. vs CIT (supra) wherein their lordships of Apex Court held as under:-
“Held, allowing the appeal, that the facts of the case were peculiar and somewhat unique. Notwithstanding that the assessee was a reputed firm and had great expertise available with it, it was possible that even the assessee could make a “silly mistake”. The fact that the tax audit report was filed along with the return and that it unequivocally stated that the provision for payment was not allowable under section 40A(7) of the Act indicated that the assessee made a computation error in its return of income. The contents of the tax audit report suggested that there was no question of the assessee concealing its income or of the assessee furnishing any inaccurate particulars. Apart from the fact that the assessee did not notice the error, it was not even noticed even by the Assessing Officer who framed the assessment order. All that had happened was that through a bona fide and inadvertent error, the assessee while submitting its return failed to add the provision for gratuity to its total income. The assessee should have been careful but the absence of due care, in a case such as the present, did not mean that the assessee was guilty of either furnishing inaccurate particulars or attempting to conceal its income. On the peculiar facts of this case, the imposition of penalty on the assessee was not justified.”
In our opinion, in the case of the assessee also, it was a silly mistake of showing similar long term capital loss in two years i.e. assessment year 2010-11 and 2011-12 instead of actual year of loss of assessment year 2011-12. We, therefore, following the above decision of the Hon’ble Apex Court hold that it is not a fit case for levy of penalty u/s 271(1)(c). In view of above, we, respectfully Assessment year 2012-13 following the above decision in the case of Price Waterhouse Coopers Pvt. Ltd., cancel the levy of penalty u/s 271(1)( c) of the Act.
In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 14.3.2017.