IBS SOFTWARE PRIVATE LIMITED, V. THE UNION OF INDIA,

WP(C)/42692/2022

AI Insights

The case involves IBS Software Private Limited, which sought immunity from penalty under Section 270AA of the Income Tax Act, 1961, following an assessment order that alleged misreporting of income. The Income Tax Department rejected the application for immunity, citing that the case was covered under sub-Section (9) of Section 270A, which details specific circumstances of misreporting. The petitioner challenged this decision in the High Court of Kerala. The court examined the provisions of Sections 270A and 270AA of the Income Tax Act and the specifics of the assessment order, ultimately agreeing with the Department's stance and dismissing the petition.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 724814 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 19-12-2023
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: RAJAKANNAN; M GOPIKRISHNAN NAMBIAR; K MATHAI; JOSON KURYAN; THOMAS C ABRAHAM
• Keywords: Assessment Order; Immunity from penalty; Income Tax Act; Misreporting of income
• Section: 270AA; 270A

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM “C.R.” PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 19TH DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, 1945 WP(C) NO. 42692 OF 2022 PETITIONER/S: IBS SOFTWARE PRIVATE LIMITED, 521-524 NILA, TECHNOPARK CAMPUS, THIRUVANANTHAPURAM - 695581,REPRESENTED BY ITS CHIEF FINANCIAL OFFICER - MR. ASHISH NANDA BY ADVS. RAJA KANNAN M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RESPONDENT/S: 1 THE UNION OF INDIA, REPRESENTED BY ITS REVENUE SECRETARY, MINISTRY OF FINANCE, NEW DELHI -110004 2 THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1 (1), AAYAKAR BHAWAN, KAWADIAR P.O., THIRUVANANTHAPURAM-695003. 3 ASSESSMENT UNIT, INCOME TAX DEPARTMENT, NATIONAL FACELESS ASSESSMENT CENTRE, ROOM NO. 401, 2ND FLOOR, E- RAMP, JAWAHARLAL NEHRU STADIUM, NEW DELHI – 110003. BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT OTHER PRESENT: SRI.CHRISTOPHER ABRAHAM-SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 42692 OF 2022 2 J U D G M E N T Heard Sri.Rajakannan, learned counsel for the petitioner, and Sri.Christopher Abraham, learned Standing Counsel for the Income Tax Department. 2. The present writ petition has been filed impugning the order in Ext.P11, whereby the petitioner's application in Ext.P3 filed under Section 270AA of the Income Tax Act, 1961 [“Act”, for short] seeking immunity from imposition of penalty in pursuance to the assessment order in Ext.P1 has been rejected, on the ground that the case is not eligible to be considered for grant of immunity from imposition of penalty as the facts of the case are covered under sub-Section (9) of Section 270A of the Act. 3. Section 270AA of the Act laid down the provisions for immunity from imposition of penalty, etc. The said Section, on reproduction, reads thus: WP(C) NO. 42692 OF 2022 3 “270AA. Immunity from imposition of penalty, etc.— (1) An assessee may make an application to the Assessing Officer to grant immunity from imposition of penalty under section 270A and initiation of proceedings under section 276C or section 276CC, if he fulfils the following conditions, namely:— (a) the tax and interest payable as per the order of assessment or reassessment under sub-section (3) of section 143 or section 147, as the case may be, has been paid within the period specified in such notice of demand; and (b) no appeal against the order referred to in clause (a) has been filed. (2) An application referred to in sub- section (1) shall be made within one month from the end of the month in which the order referred to in clause (a) of sub- section (1) has been received and shall be made in such form and verified in such manner as may be prescribed. (3) The Assessing Officer shall, subject to fulfilment of the conditions specified in sub-section (1) and after the expiry of the period of filing the appeal as specified in clause (b) of sub-section (2) of section 249, grant immunity from WP(C) NO. 42692 OF 2022 4 imposition of penalty under section 270A and initiation of proceedings under section 276C or section 276CC, where the proceedings for penalty under section 270A has not been initiated under the circumstances referred to in sub-section (9) of the said section 270A. (4) The Assessing Officer shall, within a period of one month from the end of the month in which the application under sub-section (1) is received, pass an order accepting or rejecting such application: Provided that no order rejecting the application shall be passed unless the assessee has been given an opportunity of being heard. (5) The order made under sub-section (4) shall be final. (6) No appeal under section 246A or an application for revision under section 264 shall be admissible against the order of assessment or reassessment, referred to in clause (a) of sub-section (1), in a case where an order under sub-section (4) has been made accepting the application.” 4. Thus, the assessing officer has to process the application under Section 270AA of the Act seeking immunity from imposition of penalty, inter WP(C) NO. 42692 OF 2022 5 alia, only if the case does not fall on any of the circumstances mentioned in sub-Section (9) of Section 270A of the Act. 5. Sub-Section (9) of Section 270A of the Act reads as under: “270A. Penalty for under-reporting and misreporting of income.- xxx xxx xxx (9) The cases of misreporting of income referred to in sub-section (8) shall be the following, namely:— (a) misrepresentation or suppression of facts; (b) failure to record investments in the books of account; (c) claim of expenditure not substantiated by any evidence; (d) recording of any false entry in the books of account; (e) failure to record any receipt in books of account having a bearing on total income; and (f) failure to report any international transaction or any transaction deemed to be an international transaction or any specified domestic WP(C) NO. 42692 OF 2022 6 transaction, to which the provisions of Chapter X apply.” 6. On a perusal of sub-Section (9) of Section 270A of the Act, it is seen that if there has been misrepresentation or suppression of facts by the assessee, then the application seeking immunity from imposition/payment of penalty under Section 270AA of the Act shall not be maintainable. 7. In paragraph No.3.10 of the assessment order dated 24.9.2022 in Ext.P1, the assessing authority has specifically recorded that while computing the income of the assessee and its return of income, it was not just under-reported the income, but also misrepresented the facts claiming deduction of expenses, which were already self disallowed, and therefore, it was a fit case for penalty proceedings under Section 270A of the Act. It was also stated that penalty proceedings should be initiated separately under sub-Section (9) of Section 270A of the Act. Paragraph No.3.10 of the WP(C) NO. 42692 OF 2022 7 assessment order dated 24.9.2022 in Ext.P1 is reproduced hereunder: “3.10 Accordingly, the facts and representation of the assessee in computation of income and its Return of income is not just under-reporting of income, but under reporting of income on account of specific misrepresentation of facts and claiming the deduction of expenses which are already self-disallowed, is fit case for initiation of Penalty proceedings u/s 270A of the I.T. Act for mis-reporting of income under sub-section (9) of section 270A of the Income Tax Act, 1961. Thus, penalty proceedings under sub- section (9) of Section 270A are initiated separately.” 8. The assessing authority while examining the application under Section 270AA of the Act cannot sit in appeal against its own assessment order to record a different finding than what was recorded in the assessment order. The assessing officer cannot examine the correctness or otherwise of the assessment order while examining the WP(C) NO. 42692 OF 2022 8 application under Section 270AA of the Act seeking immunity from imposition/payment of penalty, etc. If there is a specific finding recorded in the assessment order that the assessee had under- reported the income by misrepresenting the facts in the return of its income, then the application under Section 270AA of the Act would not be maintainable, in view of the express bar under Section 270A of the Act. I do not find that the impugned order, Ext.P11, rejecting the application of the petitioner under Section 270AA of the Act suffers from any illegality on facts or law. Therefore, the present writ petition is hereby dismissed. Pending interlocutory application, if any, in the writ petition stands dismissed. Sd/- DINESH KUMAR SINGH JUDGE jg WP(C) NO. 42692 OF 2022 9 APPENDIX OF WP(C) 42692/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE ORDER OF ASSESSMENT DATED 24.09.2022 ISSUED BY THE 3RD RESPONDENT FOR A.Y. 2020-21 Exhibit P2 THE TRUE COPY OF THE NOTICE OF PENALTY DATED 24.09.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P3 THE TRUE COPY OF THE APPLICATION DATED 21.10.2022 IN FORM NO. 68 FILED ELECTRONICALLY BY THE PETITIONER Exhibit P4 THE TRUE COPY OF THE REPLY LETTER (WITHOUT ANNEXURES) DATED 21.10.2022 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT Exhibit P5 THE TRUE COPY OF THE E-ACKNOWLEDGMENT DATED NIL, EVIDENCING THE FILING OF EXT. P3 AND P4 Exhibit P6 THE TRUE COPY OF LETTER (WITHOUT ANNEXURES) DATED 26.10.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P7 THE TRUE COPY OF THE NOTICE DATED 22.11.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P8 THE TRUE COPY OF THE NOTICE DATED 23.11.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P9 THE TRUE COPY OF THE REPLY LETTER (WITHOUT ANNEXURES) DATED 25.11.2022 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P10 THE TRUE COPY OF THE E-ACKNOWLEDGMENT DATED NIL, EVIDENCING THE FILING OF EXT. P9 REPLY WP(C) NO. 42692 OF 2022 10 LETTER Exhibit P11 THE TRUE COPY OF THE ORDER DATED 30.11.2022 PASSED BY THE 2ND RESPONDENT UNDER SECTION 270AA OF THE ACT, FOR A.Y 2020-21 Exhibit P12 THE TRUE COPY OF THE EXTRACT OF SECTION 270A OF THE ACT Exhibit P13 THE TRUE COPY OF THE EXTRACT OF SECTION 270AA OF THE ACT Exhibit P14 THE TRUE COPY OF THE CIRCULAR NO. 5/2018 DATED 16.08.2018 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, NEW DELHI Exhibit-P15 THE TRUE COPY OF THE NOTICE DATED 17.02.2023 ISSUED BY THE 3RD RESPONDENT Exhibit P16 THE TRUE COPY OF THE LETTER (WITHOUT ANNEXURES) DATED 22.02.2023 SUBMITTED BY THE PETITIONER IN RESPONSE TO EXHIBIT-P15 NOTICE Exhibit P16(a) THE TRUE COPY OF THE ELECTRONIC ACKNOWLEDGEMENT DATED NIL, EVIDENCING THE FILING OF EXHIBIT-P16 LETTER Exhibit P17 THE TRUE COPY OF THE LETTER DATED 06.03.2023 ISSUED BY THE 3RD RESPONDENT Exhibit P18 THE TRUE COPY OF THE LETTER (WITHOUT ANNEXURE) DATED 06.03.2023 SUBMITTED BY THE PETITIONER IN RESPONSE TO EXHIBIT-P15 NOTICE Exhibit P18(a) THE TRUE COPY OF THE ELECTRONIC ACKNOWLEDGEMENT DATED NIL, EVIDENCING THE FILING OF EXHIBIT-P18 LETTER "