D.C.I.T CIR - 1,KOLKATA, KOLKATA vs. M/S BUDGE BUDGE JUTE LTD, KOLKATA

Per Shri Mahavir Singh, JM:

Budge Budge Jute Ltd., AY 2004-05 Aggrieved, assessee preferred appeal before CIT(A) and also before Tribunal and in both the stages appeal of assessee was dismissed and addition to the extent of Rs.82,12.,119/- was confirmed. In the meantime, AO started penalty proceeding u/s. 271(1)(c) of the Act and imposed penalty in respect to these items claimed by assessee u/s. 43B of the Act amounting to Rs.82,12,119/- and thereby imposed 100% penalty at Rs.29,46,098/-. Aggrieved, assessee preferred appeal before CIT(A), who deleted the penalty by observing in para 3.2 as under: “3.2. I have perused the penalty order and considered the submission of the appellant. The fact of the case is that the appellant claimed various expenses which were disallowed by the AO to the tune of Rs.l,17,04,699/- on appeal, the then CIT(A) confirmed the disallowance but the ITAT confirmed the disallowance to the extent of Rs.82,12,119/- only. The disallowances pertain to section 43B of the Act as various payments were made by the appellant after the due date as specified in the relevant Act. However, the appellant was entitled to get credit of the same on payment basis. In view of the submission and case laws relied upon by the appellant, I am of the view that the penalty u/s. 271(1)(c) is not leviable in the instant case because the appellant had disclosed all the relevant facts. There was no mensrea to conceal or hide anything with the sole intention to evade or avoid tax liability. Otherwise also if the amount involved is disallowed in the year under consideration, in the subsequent year the same is to be allowed on payment basis following the provision of section 43B of the I.T. Act. Looking to the facts and circumstances of the case, the A.O. is directed to delete the penalty levied u/s.271(1)(c) of the Act.” Aggrieved, now revenue is in appeal before Tribunal.

"We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars. In Webster 's Dictionary, the word "inaccurate" has been defined as : "not accurate, not exact or correct; not according to truth; erroneous; as an inaccurate statement, copy or transcript. " We have already seen the meaning of the word "particulars" in the earlier part of this judgment. Reading the words in conjunction, they must mean the details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in this case, there is no finding that any details supplied by the assessee in its return were Budge Budge Jute Ltd., AY 2004-05 found to be incorrect or erroneous or false. Such not being the case, there would be no question of inviting the penalty under section 271(1)(c) of the Act. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars. It was tried to be suggested that section 14A of the Act specifically excluded the deductions in respect of the expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. It was further pointed out that the dividends from the shares did not form the part of the total income. It was, therefore, reiterated before us that the Assessing Officer had correctly reached the conclusion that since the assessee had claimed excessive deductions knowing that they are incorrect; it amounted to concealment of income. It was tried to be argued that the falsehood in accounts can take either of the two forms; an item of receipt may be suppressed fraudulently; (ii) an item of expenditure may be falsely (or in an exaggerated amount) claimed, and both types attempt to reduce the taxable income and, therefore, both types amount to concealment of particulars of one's income as well as furnishing of inaccurate particulars of income. We do not agree, as the assessee had furnished all the details of its expenditure as well as income in its return, which details, in themselves, were not found to be inaccurate nor could be viewed as the concealment of income on its part. It was up to the authorities to accept its claim in the return or not. Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under section 271(1)(c). If we accept the contention of the Revenue then in case of every return where the claim made is not accepted by the Assessing Officer for any reason, the assessee will invite penalty under section 271(1)(c). That is clearly not the intendment of the Legislature.

In this behalf the observations of this court made in Sree Krishna Electricals v. State of Tamil Nadu [2009} 23 VST 249 as regards the penalty are apposite. In the aforementioned decision which pertained to the penalty proceedings under the Tamil Nadu General Sales Tax Act, the court had found that the authorities below had found that there were some incorrect statements made in the return. However, the said transactions were reflected in the accounts of the assessee. This court, therefore, observed (page 251) :

"So far as the question of penalty is concerned the items which were not included in the turnover were found incorporated in the appellant's account books. Where certain items which are not included in the turnover are disclosed in the dealer's own account books and the assessing authorities includes these items in the dealer's turnover disallowing the exemption, penalty cannot be imposed. The penalty levied stands set aside. "

The situation in the present case is still better as no fault has been found with the particulars submitted by the assessee in its return.

The Tribunal, as well as, the Commissioner of Income-tax (Appeals) and the High Court have correctly reached this conclusion and, therefore, the appeal filed by the Revenue has no merits and is dismissed. "