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Income Tax Appellate Tribunal, ‘B’ BENCH, CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI D.S. SUNDER SINGH
आदेश /O R D E R
PER N.R.S. GANESAN, JUDICIAL MEMBER:
This appeal of the Revenue is directed against the order of the Commissioner of Income Tax (Appeals) – 6, Chennai, dated 24.02.2016 and pertains to assessment year 2011-12.
Shri Supriyo Pal, the Ld. Departmental Representative, submitted that while filing the return of income, the assessee had not disclosed a sum of `1 Crore. The Assessing Officer, on examination, found that TDS credit statement filed in Form 26AS does not tally with the income disclosed by the assessee. The assessee explained before the Assessing Officer that there was clerical error in offering the income. The assessee voluntarily offered the difference of `1 Crore. Since the assessee has not furnished the particulars of income, the Assessing Officer levied penalty under Section 271(1)(c) of the Act. Referring to the order of the CIT(Appeals), the Ld. D.R. submitted that the CIT(Appeals), however, deleted the penalty on the ground that it is only an inadvertent omission on the part of the assessee. According to the Ld. D.R., it is not an inadvertent omission; it is a conscious concealment of income by the assessee, therefore, the penalty has to be levied.
On the contrary, Sh. T. Banusekar, the Ld. representative for the assessee, submitted that it is not a conscious concealment. The assessee, in fact, offered a sum of `22,15,833/- instead of `1,22,15,833/-. Even though TDS was deducted and the same was reflected in Form 26AS, the assessee has not claimed any credit for TDS. Therefore, it is an inadvertent omission. Referring to the judgment of Apex Court in Price Waterhouse Coopers Pvt. Ltd. v.
CIT (2012) 348 ITR 306, the Ld. representative submitted that a human error has happened in the present case. It is a bona fide inadvertent error. Had the assessee intended to conceal the income, it would not have disclosed `22,15,833/- and it would have claimed credit for TDS amount also. Admittedly, the TDS credit was not claimed and the assessee disclosed `22,15,833/- instead of `1,22,15,833/-. Therefore, according to the Ld. representative, the CIT(Appeals) has rightly deleted the penalty.
4. Referring to the notice issued by the Assessing Officer for levy of penalty under Section 271(1)(c) of the Act, the Ld. representative for the assessee submitted that the Assessing Officer has not specified whether he is going to levy penalty for concealment of income or for furnishing inaccurate particulars.
Referring to the judgment of Karnataka High Court in Safina Hotels Pvt. Ltd. v. CIT in dated 25.01.2016, the Ld. representative submitted that in such a factual situation, the Karnataka High Court found that there cannot be any penalty under Section 271(1)(c) of the Act.
We have considered the rival submissions on either side and perused the relevant material available on record. The penalty was levied for non-disclosure of `1 Crore. It is not in dispute that the assessee has disclosed `22,15,833/- instead of `1,22,15,833/-.
The assessee has also not claimed credit for the tax deducted at source. Therefore, this Tribunal is of the considered opinion that it is an inadvertent mistake on the part of the assessee in disclosing the income. As rightly submitted by the Ld. representative for the assessee, if the intention of the assessee was to conceal the income, then it would not have disclosed the amount of `22,15,833/- and also would have claimed credit for the TDS. The fact that the TDS credit was not claimed clearly shows that an inadvertent mistake was done by the assessee in disclosing the amount of `22,15,833/- instead of `1,22,15,833/-. Therefore, the CIT(Appeals) by rightly placing reliance on the judgment of Apex Court in Price Waterhouse Coopers Pvt. Ltd. (supra), deleted the penalty. This Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
In view of the order of the Tribunal in Revenue’s appeal, the cross-objection of the assessee becomes infructuous.
In the result, both the appeal of the Revenue and the cross- objection of the assessee are dismissed.
Order pronounced on 23rd November, 2016 at Chennai.