SHRI SHAMINDER SINGH , MUKTSAR V. INCOME TAX OFFICER WARD- II ( 2 ) , MUKTSAR

ITA 427/ASR/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 8163 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 09-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Wrong claim; Revised return
• Section: 147; 271(1)(c); 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No. 427/Asr/2019 Assessment Year: 2015-16 Shri Shaminder Singh, H.No. 5039, Bhai Kartar Singh, Muktar Singh, Muktsar. [PAN:-AJKPS2890P] (Appellant) Vs. ITO Ward-II(2), Muktsar. (Respondent) Appellant by None. Respondent by Sh.S. M. Surendranath, Sr. DR. Date of Hearing 23.08.2022 Date of Pronouncement 12.09.2022 ORDER Per:Anikesh Banerjee, JM: The instant appeal was filed by the assessee against the order of the ld. Commissioner of Income Tax(Appeals), Bathinda, [in brevity the CIT(A)] bearing appeal nos. 275,276 & 277-IT/18-19, A.Y. 2015-16, date of order 15.03.2019, the order passed u/s 250(6) of the Income Tax Act, 1961, [in brevity the Act] for A.Y.2015-16. I.T.A. No. 427/Asr/2019 2 The impugned order was originated from the order of the ld. Income Tax Officer, Ward-II(2), Muktsar (in brevity the AO), order passed u/s 271(1)(c) of the Act date of order 27.02.2018. 2. Brief fact of the case is that the assessee claimed deduction in the return u/s 139(1) under Chapter VI-A of the Act. The claim of the deduction under VI-A was wrong as per the revenue and reopening assessment was made u/s 147 of the Act. The assessment was completed, and the addition was made related to wrong claim u/s 80DDB and 80E of the Act. The assessing authority levied penalty @ 200% sought to be evaded amount to Rs.55,420/-. Aggrieved assessee filed an appeal before the ld. CIT(A). The ld. CIT(A) considering the assessee’s submission and reduced the penalty @ 100% which is worked out amount to Rs.27,710/-. 3. Being aggrieved assessee filed an appeal before us. 4. During the appellate proceeding before us, no one was present on behalf of the assessee. The matter was taken up with the consent of the ld. Sr. DR for adjudication. 5. The ld. DR argued and relied, the order of the revenue authorities. 6. We consider the documents available in the records and the orders of the revenue authorities. The assessee filed return u/s 139(1) and wrong claim was made of deduction under Chapter VI-A. Accordingly, Rs.2,40,000/- was calculated I.T.A. No. 427/Asr/2019 3 as an escaped income and added to the assessee. The assessee filed a revised return against the rectification of the error, but the revised return filed after issuance of notice u/s 147/148. In the ground of the assessee, it is challenged that the penalty u/s 271(1)(c) amount of Rs.27,710/- is not sustainable. The observation of the ld. CIT(A) is that the assessee has intention to defraud the revenue by claim excess deduction and to get refund. Thus, in our considered view a wrong claim by the assessee cannot tantamount as inaccurate particulars of income. In holding so we find support and guidance from the judgment of Hon'ble Supreme Court in the case of CIT v. Reliance Petroproducts (P.) Ltd . [2010] 189 Taxman 322/322 ITR 158 wherein it was held as under: - "Therefore, it must be shown that the conditions under section 271(1)(c) exist before the penalty is imposed. There can be no dispute that everything would depend upon the return filed, because that is the only document, where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise. [Para 8] The word 'particulars' must mean the details supplied in the return, which are not accurate, not exact or correct, not according to truth or erroneous. In the instant case, there was no finding that any details supplied by the assessee in its return were 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). A mere making of the claim, which is not I.T.A. No. 427/Asr/2019 4 sustainable in law by itself will not amount to furnishing of inaccurate particulars regarding the income of the assessee. Such claim made in the return cannot amount to the inaccurate particulars. [Para 9] The revenue contended that since the assessee had claimed excessive deductions knowing that they were incorrect, it amounted to concealment of income. It was argued that the falsehood in accounts can take either of the two forms: (i) 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. Such contention could not be accepted 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 attract the penalty under section 271(1)(c). If the contention of the revenue was accepted, then in case of every return where the claim made was not accepted by the Assessing Officer for any reason, the assessee would invite penalty under section 271(1)(c). That is clearly not the intendment of the Legislature. [Para 10]" We find no merit in the order of ld. CIT(A). The penalty amount of Rs 27,710/- is deleted. I.T.A. No. 427/Asr/2019 5 7. In the result, the appeal of the assessee in ITA 427/Asr/2019 is allowed. Order pronounced in the open court on 12.09.2022 Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order