Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, MUMBAI BENCHES “F”, MUMBAI
Before: SHRI JASON P. BOAZ (AM) & SHRI SANDEEP GOSAIN (JM)
This appeal by the assessee is directed against the order of the CIT(Appeals)- 10, Mumbai dt. 01/01/2013, in respect of the partial confirmation of the levy of penalty u/s 271(1)(c) of the Income Tax Act, 1961 (in short ‘the Act’) by the Assessing Officer (‘AO’) for Asst. year 2001-02.
The facts of the case, as emanate from the record, are briefly, as under:-
2.1 The assessee, proprietor of M/s. M.P. Impex dealing in oxygen cylinders, Selenium metal powder, video components etc., filed his return of income for Asst. year 2001-02 on 30/07/2001 declaring total income of Rs. 79,117/-. The return was processed u/s 143(1) of the Act. Subsequently proceedings u/s 147 of the Act were initiated in order to scrutinize the case as the A.O had reason to believe income of the assessee, exigible to tax, has escaped assessment. The assessment was concluded u/s 143(3) r.w.s. 147 of the Act vide order dt. 27/03/2002 wherein the income of the assessee was determined at Rs. 2,57,73,500/- and penalty proceedings u/s 271(1)(c) of the Act were initiated therein in respect of additions made.
2.2. The A.O passed an order levying penalty u/s 271(1)(c) of the Act vide order dated 27/03/2008 on the following three additions. (i) Concealed income inaccurate particulars of income on account of interest on loan taken for investment in shares Rs. 22,97,072/- (ii) Difference in capital account (inaccurate particulars of income) Rs. 1,22,470/- (iii) Capital gains on sale of jewellery (inaccurate particulars of income) Rs. 9,16,268/- 2.3 Aggrieved by the order dt. 27/03/2008 for A.Y. 2001-02 minimum penalty of Rs. 8,95,867/- was levied u/s 271(1)(c) of the Act @100% of tax sought to be evaded, the assessee preferred an appeal before the CIT(Appeals)-10, Mumbai, challenging the levy of penalty on the aforesaid three issues. The Ld. CIT(A) disposed of the assessee’s appeal vide the impugned order dt. 01/01/2013 allowing the assessee partial relief. The said penalty levied in respect of (i) interest amounting to Rs. 22,97,072/- on loan taken for investment in shares and (ii) addition on account of differences in the opening balances in share capital account amounting to Rs. 1,22,470/- were deleted. The only issue on which the levy of penalty u/s 271(1)(c) of the Act was sustained was in respect of the furnishing of inaccurate particulars of income on sale of jewellery.
3.1 Aggrieved by the order of the CIT(Appeals)-10 Mumbai dt. 01/01/2013 the assessee has preferred this appeal before the Tribunal raising the following grounds:- 1. The Ld. CIT(A) failed to appreciate facts of the case on merits.
2. The Ld. CIT(A) failed to appreciate that the assessee already had a huge business loss for set off and so there was no reason for the assessee to show inaccurate particulars of income.
The Ld. CIT(A) failed to appreciate Assessee state of mind due to heavy Business loss that he suffered.
4. The Ld. CIT(A) failed to appreciate that the return of the Assessee was prepared by the Accountant who at that time made an error of indexing the jewellery by taking a wrong valuation of the Jewelry at Rs. 9,01,500/- of the year 1996 instead indexing it at Rs. 6,84,459/- of the year 1992.
5. The Ld. CIT(A) failed to appreciate that the Accountant mistake in filing return of the Assessee is apparent and visible from the fact that even after indexing it at Rs. 9,01,500/- of 1996, he attached the valuation report of 1991-92.
The Ld. CIT(A) failed to appreciate that if has been an act of furnishing inaccurate details, the Accountant would never enclosed the correct valuation report of the Jewelry of Rs. 6,81,459/- in the return which has been filed with the Department. Had it been intentional and pre determined act, he would not have attached right valuation report.
The Ld. CIT(A) failed to appreciate that there is no loss to the Revenue Department as 11 years has past and the benefit of loss has not been taken up till now by the assessee.
The Ld. CIT(A) failed to appreciate that the assessee has voluntarily submitted the documents to the Assessing Officer, has there been any willful mal fide intention on the part of the assessee they would not have submitted the same. The mistake has been done in the representation of the accounts which comes in the ambit of technical default.
Therefore I humbly pray before the Hon’ble Tribunal to delete the penalty order form Jewelry.
3.2 The assessee himself was heard in the matter, in support of the grounds raised in this case. Written submission dt. 22/06/2016 were also filed wherein it was submitted as under:-
On the facts and circumstances of the case, the Ld. CIT(A) failed to appreciate Assessee presentations that there is no malafide intention on the part of the Assessee to make any inaccurate particulars of Income and it just the matter of taking wrong value which cannot be said to be any factor for levying penalty.
2. On the facts and circumstances of the case, the Ld. CIT(A) failed to appreciate that it was admitted before the Ld. CIT(A) that the return of the Assessee was prepared by a new Accountant who at that time made an error of indexing the Jewellery by taking a wrong valuation date of the Jewellery purchase although earlier valuation report was filed (clause 11 of page no. 13 of paper book of appeal.)
3. On the facts and circumstances of the case, the Ld. CIT(A) failed to appreciate that the difference was on account of oversight by the Accountant and lack of attention by the Assessee as he was not in stable state of mind due to heavy Business loss that he suffered. Also he had to sell him his ancestral property and jwellery which really made him to be under serious stress. Since the assessee was not in stable state of mind, the oversight by the accountant resulted in the mistakes in the calculation. This fact is already submitted by the Assessee in its submission before the Ld. CIT(A).
4. The Ld. CIT(A) failed to appreciate that there was no reason for the assessee to misdeclare the return and show loss. The assessee had enough short term capital loss of Rs. 1,09,25,542/- which very well setoff the Long term capital gain.
On the facts and circumstances of the case, the Ld. CIT(A) failed to rely on a) the Supreme court judgement in the case of CIT vs. Reliance Petroproducts Pvt. Ltd. (322 ITR 158 (SC) and b) Dilip N. Shroff. vs. CIT [(2007) 210 CTR (SC) 228] which clearly lays down that even the Assessee could make silly mistake and considering facts of the case held that penalty is not justified. c) Further it also ask to rely on the judgement of the recent decision of the Pune bench of the Tribunal in the case of Kanbay Software India Pvt. Ltd. and d) also in the case of Gujarat State Financial Services Pvt. Ltd. vs. ACIT wherein it was held by ITAT Ahmadabad Bench that:
“ Mere submitting a claim which is incorrect in law would not amount to giving inaccurate particulars of income of assessee, but if claim besides being incorrect in law, is malafide, Explanation 1 to section 271(1)(c) comes into play and work to disadvantage of assessee.
If the assessee makes a claim which is not only incorrect in law but is also wholly without any basis and the explanation furnished by him for making such a claim is not found to be bonafide, it would be difficult to say that he would still not be liable to penalty under section 271 (1)(c) “.
6. On the facts and circumstances of the case, the Ld. CIT(A) failed to appreciate that the Assessee has a huge short term capital loss in the relevant Assessment Year. So even if we go as per Ld. CIT(A) order to take Cost of Acquisition at Rs. 3,41,000/- there still comes a short term c/f loss of Rs. 1,30,44,0324/- after adjusting long term gain off Rs. 1,78,777/-(copy enclosed)
Hence there was no need for the Assessee to derive any benefit by showing any inaccurate particulars of the Income as the capital gain could have easily been set off against the Short Term Capital Loss which was confirmed in the decision of the CIT(A).
The mistake has been done due to oversight by the Accountant which comes in the ambit of technical default.
Therefore, I humbly pray before the Hon’ble Tribunal to delete the penalty order as there was no malafide intention.
The assessee prayed that in view of the above submissions, the penalty levied u/s 271(1)(c) of the Act in respect of gains arising from sale of jewellery be deleted.
3.3 Per contra, The Ld. DR placed strong reliance on the finding rendered by the Ld. CIT(A) in the impugned order upholding the levy of penalty u/s 271(1)(c) of the Act for furnishing of inaccurate particulars of income arising from the sale of jewellery.
3.4.1 We have heard the rival contentions and perused and carefully considered the material on record, including the judicial pronouncements cited by the assessee. On an appreciation of the facts on record, it is seen that in the course of assessment proceedings, the AO observed that the assessee had declared long term capital (‘LTCL’) of Rs. 7,37,491/- on account of sale of jewellery. In this context, it was noticed on examination of the details on record that the assessee in the year under consideration has adopted the cost of jewellery as in 1991-92 at Rs. 9,01,500/- which was sold on 24/03/2001 for Rs. 11,01,750/-. The assessee worked out the consideration cost at Rs. 18,39,241/- and thereby the LTCL was computed at Rs. 7,37,491/-. In this regard, it was observed by the A.O from copy assessee’s Wealth Tax Return for A.Y. 1998-99 that, as per valuation report of the assessee, the jewellery is reflected therein and valued at Rs. 3,10,000/-; the value of which was enhanced to Rs. 3,41,000/- in Wealth Tax assessment proceedings for A.Y. 1998-99. In that view of the matter, the A.O for indexation purposes adopted the value of the jewellery at Rs. 3,41,000/- as assessed for Asst. year 1998-99 and worked out the indexed cost at Rs. 9,22,973/- as of against the assessee’s working of Rs. 18,39,241/- and proceeded to compute the LTCG on sale of jewellery at Rs. 1,78,977/- as against LTCL of Rs. 7,37,941/- declared by the assessee. From the material before us, it appears that this addition by the A.O has not been challenged by the assessee before the appellate forums on merits and therefore it has attained finality.
3.4.2 In the submission before us, the assessee reiterated his contentions put forth before the authorities below that there was no malafide intention on the part of the assessee to file inaccurate particulars of income, and that the difference between the amount returned by the assessee as LTCL and the amount of LTCG assessed by the A.O is merely on account of the return of income for A.Y. 2001-02 having been prepared by a new Accountant who made the mistake of indexing the jewellery by taking a wrong valuation date of jewellery purchase. According to the assessee, he also failed to notice this mistake of the Accountant as he was under severe mental stress due to incurring of heavy business losses during that period. It was further contended that there was no reason for him to make misdeclarations in his return of income when the assessee had adequate STCL to set off the LTCG on sale of jewellery. The assessee contends that merely because he has submitted a claim that is incorrect in law, it would not amount to furnishing of inaccurate particulars of income, unless it is malafide. In support of this proposition, the assessee has placed reliance on inter alia, the following judicial pronouncements:- (i) CIT vs. Reliance Petroproducts P. Ltd. (322 ITR 158 SC); (ii) Dilip N. Shroff vs. CIT (2007) 210 CTR(SC) 228, The other Tribunal cases mentioned no not contain any citation nor was any copy placed before us, and therefore we decline to comment thereon.
3.4.3. From a perusal of material on record and after appraising the submissions of the assessee and the orders of the authorities below, we are of the considered opinion that the proposition canvassed by the assessee, that he had merely made a claim which is incorrect in law, and that his would not amount to furnishing of inaccurate particulars of income, is untenable in the present case. It is not the case of the assessee that he preferred a legal claim which was not allowed due to an interpretation of law. In the case on hand, we find that the assessee’s computation of LTCL on sale of jewellery was factually enormous and untenable on various courts, as pointed out by the authorites below:-
(i) while calculating capital gains, u/s 48 of the Act, the assessee should have adopted the cost of acquisition of jewellery , which has not been taken into account and if the acquisition thereof is before 01/04/1981, then the assessee has the option to adopt the fair market value (FMV) of the jewellery as on 01/04/1981. (ii) It was defected by the authorities below that though the assessee has adopted the value of jewellery at Rs. 3,10,000/- for Wealth Tax return for A.Y. 1998-99, based on the valuation report of a registered value, no satisfactory explanation was forth coming from him as to why the same valuation was not adopted for Income Tax purposes. (iii) We observe that authorities below have also found that assessee’s computation of LTCL in respect of the jewellery was factually incorrect due to the assessee adopting wrong valuation of jewellery in the wrong assessment years. The assessee taking Rs. 9,01,500/- as the FMV of the jewellery as on 31/03/1992, applied the indexation factor for A.Y. 1991-92 thereon, thereby determining the cost of acquisition thereof at Rs. 18,39,241/-. Whereas, it was, admittedly detected that factually incorrect claims were made and the value of Rs. 9,01,500/- adopted by assessee was the value as on 31/03/1996 as per valuation report dt. 12/03/1996 and not 31/03/1992 as taken by the assessee. This resulted in the cost of acquisition of jewellery being taken at the higher value of Rs. 9,01,500/- instead of Rs. 6,81,459/-.
3.4.4. From the factual matrix of this case, as discussed above, we are of the considered view that the assessee has not put forth any cogent reason or material evidence on record before us as to why he has taken the wrong value of jewellery of a later year 1996 and applied it to workout indexed cost of acquisition taking a earlier year i.e. 1991-92. In our view, on the basis of the material before us, it is not as if the actions of the assessee were a consequence of inadvertent mistakes taking place, as it is sought to be made out to be. Rather, we concur with the finding rendered by the Ld CIT(A) that it is a clear case of furnishing of inaccurate particulars of income, as the assessee has paid Wealth Tax and filed Wealth Tax returns on the said jewellery, based on lower valuation, where as for income tax purposes the assessee has adopted a much higher value of a later year i.e. of 1996 and then taking on earlier year i.e. 1991-92 as the base for indexation, thereby resulting in computation of LTCL at Rs. 7,37,491/- as against the undisputed LTCG of Rs. 1,78,777/- on sale of jewellery, which it ought to be . With due respect, the cited cases, (supra) would not come to the rescue of the assessee as this is not a case where rejection of the assessee’s claim is on the basis of interpretation of law, where the full facts were placed before the authorities below. In the case on hand, the authorities below have clearly established a case of furnishing of inaccurate particulars by the assessee, which were found to be factually enormous. In this view of the matter, we uphold the order of the Ld. CIT(A) in confirming the penalty levied u/s 271(1)(c) of the Act in respect of addition on account of LTCG on sale of jewellery. Consequently, grounds 1 to 8 raised by the assessee are dismissed.
In the result, the assessee’s appeal for A.Y. 2001-02 is dismissed.