RAJU BHAUSAHEB ANAP, NASHIK V. INCOME TAX OFFICER, NASHIK

ITA 467/PUN/2023

AI Insights

The case involves Raju Bhausaheb Anap, a salaried employee of BSNL, Nashik, who appealed against a penalty imposed by the Income Tax Officer under section 270A for misreporting income in the assessment year 2018-19. The penalty was based on claims of bogus deductions and losses reported in his tax returns, which were initially filed by a tax consultant. Following a survey revealing fraudulent claims by the consultant, the AO reopened the assessment and imposed a penalty, which was upheld by the CIT(A). However, the ITAT found that the AO did not specify how Anap's actions fell under the misreporting clauses of section 270A(9), leading to the decision to allow Anap's appeal and delete the penalty.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 134464 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-05-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 20-04-2023
• Other Referred Cases: Kishor Digambar Patil, Saltwater Studio LLP
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing; Principle of natural justice; International transaction
• Section: 147; 148; 143(3); 133A

Judgement Text

आयकर अपीलीय अिधकरण ”बी” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “B” :: PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.467/PUN/2023 िनधाᭅरण वषᭅ / Assessment Year : 2018-19 Raju Bhausaheb Anap, 01 Rajshree Samartha Sankul, Near Kalawati Mata Mandi, Kalanagar, Indira Nagar, Nashik – 422009. PAN: ANRPA 7092 E V s The Income Tax Officer, Nashik. Appellant / Assessee Respondent / Revenue Assessee by None. Revenue by Shri M.G.Jasnani – DR Date of hearing 17/05/2023 Date of pronouncement 26/07/2023 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This appeal filed by the Assessee is directed against the order of ld.Commissioner of Income Tax (Appeal)National Faceless Appeal Centre, Delhi dated 20.02.2023 emanating from the penalty order dated 11.01.2022 under section 270A of the Income Tax Act, 1961 for the A.Y.2018-19. The Assessee has raised the following grounds of appeal : ITA No.467/PUN/2023 Raju Bhausaheb Anap [A] 2 “1. The learned CIT is not justified in raising penalty u/s 270A of Rs.80,494/- on the ground that the assesses has furnish inaccurate particulars of Income without appreciating that the said levy of penalty was not justified in law. 2. The learned CIT failed to appreciate that before the CIT, the assesses had duly explained that reporting of income in his case was attributable to wrong action of tax consultant and all the material facts relating thereto along with substantiating evidences in form of complaint filed against Tax Consultant before Economic Wing of Police Department etc. were also furnished by the assesses and therefore, the raised penalty u/s 270A without rebutting the explanation offered by the assesses was not justified in view of provisions of the said Act. 3. The learned CIT ought to have appreciated that the bona fides of the explanation offered by assesses were established from the fact that the assesses, being salaried employee from technical background, was totally dependent upon the tax consultant for filing income tax return and no such incorrect claim was ever made by the assesses either in past years or in subsequent years and therefore, the levy of penalty u/s 270A was not justified in view of the explanation offered by the assesses.” Brief facts of the case : 2. In this case, assessee is an individual salaried employee of BSNL, Nashik and earning income assessable to tax under the head Salaries. He filed Original Return of Income for A.Y.2018- 19 on 03.07.2018 declaring total income of Rs.4,76,110/- after claiming set off of loss under the head House Property of Rs.2,00,000/- and claimed deduction under Chapter VI-A of Rs.3,82,120/-; and refund of Rs.38,960/-. ITA No.467/PUN/2023 Raju Bhausaheb Anap [A] 3 2.1 A survey action under section 133A of the Act was conducted in the premises of Kishore Patial who e-filed ITR’s of various persons wherein bogus deduction under Chapter VIA was claimed and the assessee was one among such cases. Kishor Patil, who files IT returns of the salaried employees of various companies and PSUs. That survey collectively revealed calming of bogus deductions under Chapter Vl-A, i.e. deductions under section 80D, 80DDE, 80G, 80GG, 80E and 80EE and also claiming of bogus house property loss i.e. payments towards interest for borrowing loan by Mr. Patil in the IT Returns filed. The ITO (Inv.), along with his report also submitted a list of cases in which Mr. Patil admittedly filed IT returns making bogus claims. In that list, the name of the assessee was also mentioned. 2.2 The Assessing Officer(AO) came to know that the assessee had indulged in obtaining fraudulent refund from the Department by claiming bogus/excess loss under the head House Property and deduction under Chapter VIA apart from suppression of salary income. Therefore, the case was reopened and issued notice under section 148 of the Act dated 25.02.2020. ITA No.467/PUN/2023 Raju Bhausaheb Anap [A] 4 2.3 The assessee filed return in response to notice under section 148 of the Act on 19.03.2020, wherein Assessee disclosing his total income of Rs.6,89,400/- i.e. the claim of deduction under Chapter-VIA to Rs.1,68,000/- in place of Rs.3,82,120/- claimed in original return and further claimed loss under the head House Property to the extent of (-) Rs.1,79,783/-. Also, the assessee disclosed income under the head Salaries of Rs.6,89,400/- as against Rs.4,76,110/- disclosed in the Original Return of Income. 2.4 After considering the submissions of the assessee, the Assessing Officer(AO) completed the re-opened assessment proceedings by passing an order under section 147 r.w.s 144B of the Act, 1961 on 16.09.2021, accepting the revised income disclosed by the assessee of Rs.6,89,400/-. 3. The Assessing Officer(AO) initiated penalty proceeding u/s.270A of the I.T. Act for misreporting of gross total income. Accordingly, AO levied penalty u/s.270A at Rs.80,494/- (being 200% of concealed tax). Aggrieved by the penalty order, the ITA No.467/PUN/2023 Raju Bhausaheb Anap [A] 5 assessee filed appeal before the ld.CIT(A). The ld.CIT(A) upheld the penalty order. 4. At the outset of hearing, none appeared on behalf of the assessee. Submission ld.DR : 5. The ld.DR relied on the order of the Lower Authorities. The ld.DR submitted that assessee consciously filed Return of Income claiming deduction under Chapter-VIA fraudulently. It was only because of the survey, the fraudulent act was detected. Findings &Analysis : 6. In this case, in the assessment order under section 143(3) r.w.s 144B of the Act, 1961 on 16.09.2021, the AO has accepted Return of Income shown in the Return filed in response to notice under section 148. Nowhere in the assessment order, the AO has discussed how the assessee has mis-reported the income. The AO has not identified the specific limb of section 270A(9) of the Act, either in the penalty order or in the assessment order which is applicable in the case of assessee. We find that ITAT Pune in the case of Kishor Digambar Patil(supra) has held that failure on ITA No.467/PUN/2023 Raju Bhausaheb Anap [A] 6 the part of the AO to showcase which of the specific action of the assessee from Clause(a-f) of section 270A(9) was determinant before imposing the impugned penalty under section 270A of the Act has rendered the entire proceedings invalid and untenable. Similarly, ITAT Mumbai in the case of Saltwater Studio LLP(supra) has held as under : “The question is whether the AO’s action to levy penalty u/s 270A(9) of the Act is sustainable in the given facts of the case. In order to examine that let us have a look at relevant provisions of Section 270(8) &(9) of the Act which reads as under: - “Penalty for under-reporting and misreporting of income. 270A. (1) ........................ (8) Notwithstanding anything contained in sub-section (6) or sub- section (7), where under-reported income is in consequence of any misreporting thereof by any person, the penalty referred to in sub- section (1) shall be equal to two hundred per cent of the amount of tax payable on under-reported income. (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 ITA No.467/PUN/2023 Raju Bhausaheb Anap [A] 7 (f)failure to report any international transaction or any transaction deemed to be an international transaction or any specified domestic transaction, to which the provisions of Chapter X apply.” 13. The AO has levied the higher penalty of 200% of tax payable of misreporting income. Then in such a scenario, the AO has to bring the action/omission on the part of the assessee in the ken of sub- section (9) of section 270A of the Act which are given (supra), viz (a) to (f) of section 270A(9) of the Act. However, a reading of the reasons given by the AO to levy penalty for misreporting (supra) it is discerned that he has failed to spell out as to how the assessee’s case/additions falls within the ken of instances given in clause (a) to (f) of sub-section (9) of section 270A of the Act. Since AO failed to bring the addition/disallowance he made in quantum assessment, under the ken of (a) to (f) of the sub-section(9) of section 270A of the Act, the penalty levied for misreporting @ 200% cannot be sustained because it is trite law that penalty provisions have to be strictly interpreted. And therefore, taking into consideration, the facts and circumstances of the case, we find that the levy of penalty by the AO u/s 270A of the Act suffers from the vice of non- application of mind as well as violates principles of natural justice. And therefore, the penalty levied on addition of sustained quantum addition of Rs.67,970/- cannot survive. And therefore, it is directed to be deleted.” 7. In the case under consideration, the AO has failed to identify the specific Clauses from Clause (a-f) of section 270A(9) of the Act. Therefore, respectfully following ITAT Pune and ITAT Mumbai decisions the AO is directed to delete ITA No.467/PUN/2023 Raju Bhausaheb Anap [A] 8 the penalty under section 270A of the Act. Accordingly, grounds of appeal raised by the assessee are allowed. 8. In the result, appeal of the assessee is allowed. Order pronounced in the open Court on 26 th July, 2023. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 26 th July, 2023/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “बी” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.