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Facts
The assessee challenged a penalty of Rs. 15,690/- imposed under section 271(1)(c) by the AO and confirmed by the CIT(A) for A.Y. 2012-13. The AO reopened assessment under section 148, and the assessee filed a return declaring Rs. 3,42,360/-, which was accepted. Penalty was imposed on the premise that this was the first return. The assessee contended an original return under section 139(1) with the same income was filed earlier. However, the CIT(A) upheld the penalty, stating no evidence of self-assessment tax payment or intimation under section 143(1) was furnished for the original return, thus treating it as not filed.
Held
The Tribunal observed that the AO himself, in an order under section 271F, had accepted the filing of the original return under section 139(1). The assessee consistently declared the same income in both the original return and the return filed in response to the section 148 notice, which the AO accepted without any additions in reassessment proceedings. Therefore, the Tribunal concluded there was no concealment of income particulars, setting aside the CIT(A)'s order and directing the deletion of the penalty.
Key Issues
Whether a penalty under section 271(1)(c) for concealment of income is leviable when the assessee had filed an original return under section 139(1) declaring the same income, which was subsequently accepted by the AO in reassessment.
Sections Cited
Section 271(1)(c), Section 148, Section 139(1), Section 143(1), Section 271F
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Income Tax Appellate Tribunal, MUMBAI BENCH “F”, MUMBAI
Before: SHRI B.R. BASKARAN & SHRI SANDEEP SINGH KARHAIL
PER B.R. BASKARAN, ACCOUNTANT MEMBER :
The assessee has filed this appeal challenging the order dated 06-08-2022 passed by Ld CIT(A), NFAC, Delhi and it relates to the assessment year 2012-13. The assessee is aggrieved by the decision of Ld CIT(A) in confirming the penalty of Rs.15,690/- levied by the AO u/s 271(1)(c) of the Act.
The assessing officer reopened the assessment of the year under consideration u/s 148 of the Act. In response thereto, the assessee filed return of income declaring a total income of Rs.3,42,360/- and the same was accepted by the AO. The AO initiated penalty proceedings and imposed a penalty of Rs.15,690/- u/s 271(1)(c) of the Act on the reasoning that the return of income has been filed by the assessee for the first return in response to the notice issued u/s 148 of the Act.
Before Ld CIT(A), the assessee submitted that she had earlier filed her return of income u/s 139(1) of the Act on 23.3.2013 for the year under consideration declaring very same total income of RS.3,42,360/-. Accordingly, the assessee contended that the AO was not right in observing that the return of income filed in response to the notice u/s 148 of the Act was her first return. The Ld CIT(A), however, noticed that the income tax acknowledgement filed by the assessee disclosed that the assessee has not paid the self assessment tax due for this year. Since there was no evidence for payment of self assessment tax and since the assessee did not furnish copy of intimation issued u/s 143(1) of the Act, the Ld CIT(A) held that the assessee should be considered as not filed any return of income earlier. Accordingly, he confirmed the penalty levied by the AO. Hence the assessee has filed this appeal.
The Ld A.R submitted that the AO has, in fact, accepted the fact of filing of return of income u/s 139(1) of the Act in the order dated 16-09-2021 passed u/s 271F of the Act. Hence the Ld CIT(A) was not right in ignoring the above said order passed by the AO and giving a wrong finding. He further submitted that the assessee had paid the self assessment tax subsequently. Since the assessee had filed original return of income and since the very same income was declared in the return of income filed in response to the notice issued u/s 148 of the Act and since the said income has been accepted by the AO in the reassessment proceedings, the Ld A.R contended that the impugned penalty levied u/s 271(1)(c) of the Act is liable to be deleted.
We heard ld D.R and perused the record. We notice that the AO himself has accepted that the assessee has filed return of income u/s 139(1) of the Act in the order dated 16-09-2021 passed u/s 271F of the Act. The assessee has also furnished copies of acknowledgement issued by the department for filing return of income u/s 139(1) and also u/s 148 of the Act. From the same, we notice that the assessee has declared very same total income of Rs.3,42,360/- in the original return as well as in the return filed in response to the notice issued u/s 148 of the Act. The AO has also accepted the same in the reassessment proceedings without making any addition. Hence, we are of the view that there is no concealment of particulars of income which would lead the levy of penalty u/s 271(1)(c) of the Act. Accordingly, we set aside the order passed by Ld CIT(A) and direct the AO to delete the penalty levied by him u/s 271(1)(c) of the Act in the year under consideration.