Surya Sriharsha , Madanapalle V. Asst. Commissioner of Income Tax, Circle-1(1), Hyderabad

ITA 55/Hyd/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9302 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 17-02-2021
• Assessment Year: 2015-2016
• Appeal Filed On: 15-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Wrong claim
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO. 55/HYD/2019 ASSESSMENT YEAR: 2015-16 SURAY SRIHARSHA, MADANAPALLE [PAN: AERPS2718C] VS THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE-1(1), TIRUPATI (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S.RAMA RAO, AR FOR REVENUE : SHRI ROHIT MUJUMDAR, DR DATE OF HEARING : 17-02-2021 DATE OF PRONOUNCEMENT : 17-03-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2015-16 ARISES FROM TH E CIT(A)-TIRUPATIS ORDER DATED 19-11-2018 PASSED IN A PPEAL NO.10014/2018-19/CIT(A)/TPT IN PROCEEDINGS U/S.271( 1)(C) OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]. HEARD BOTH PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES SOLE SUBSTANTIVE GRIEVANCE CANVASS ED IN THE INSTANT APPEAL SEEKS TO REVERSE BOTH THE LOWER AUTHORI TIES ACTION IMPOSING SECTION 271(1)(C) PENALTY OF RS.19,15 ,424/- ON ACCOUNT OF ALLEGED FURNISHING OF INACCURATE PARTICULAR S OF ITA NO. 55/HYD/2019 :- 2 -: INCOME. THE CIT(A)S DETAILED DISCUSSION TO THIS EFFEC T READS AS UNDER: 4. THE APPEAL IS FILED AGAINST LEVY OF PENALTY OF RS.19,15,424/- U/S.271(1)(C) OF THE I.T. ACT, FOR CONCEALING PARTI CULARS OF INCOME OF RS.63,84,746/-. THE FACTS OF THE CASE THAT THE APPE LLANT, IN THE COMPUTATION OF INCOME, HAD SET OFF OF LOSS ON SHARE S OF AY 2013-14 OF RS.63,84,746/- AGAINST THE CURRENT INCOME FROM SALE OF SHARES AND SECURITIES AMOUNT TO RS.69,07,287/-. HOWEVER, THE R ETURN OF INCOME FOR AY 2013-14 HAS BEEN FILED ON 10.2.2014 AS AGAIN ST DUE DATE FOR SUCH FILING ON 31.10.2013. AS PER THE PROVISIONS OF SEC.139(3) OF THE I.T. ACT, 1961, NO LOSS OR ANY PART THEREOF IS ALLO WED TO BE CARRIED FORWARD, IF THE RETURN OF INCOME OR LOSS IS NOT FUR NISHED BEFORE THE DUE DATE FOR FILING SUCH RETURN. ACCORDINGLY, AN AMOUN T OF RS.63,84,746/- WHICH IS BROUGHT FORWARD OF AY 2013-14, AND SET OFF AGAINST THE CURRENT YEARS INCOME IS DISALLOWED IN THE ORDER OF ASSESSMENT FOR AY 2015-16, VIDE ORDER DATED 14.12.2017. PENALTY PROCE EDINGS WERE INITIATED U/S.271(1)(C) FOR FURNISHING INACCURATE P ARTICULARS OF INCOME OF RS.63,84,746/-. THUS, THE PENALTY WAS LEVIED O F RS.19,15,424/- U/S.271(1)( C) FOR FURNISHING INACCURATE PARTICULAR S OF INCOME. THE CONTENTION OF THE AR OF THE APPELLANT DURING THE CO URSE OF APPELLATE PROCEEDINGS WAS THAT THE CLAIM OF LOSS OF SET OFF W AS NOT INTENTIONAL AND IT WAS A ROUTINE CLAIM FROM THE PREVIOUS RECORD S. THE CONTENTION RAISED BY AR OF THE APPELLANT IS NOT ACCEPTABLE. TH E SET OFF OF LOSS WHICH WAS NOT ALLOWABLE AS PER THE LAW AGAINST THE CURRENT INCOME CANNOT BE TREATED AS UNINTENTIONAL ACT. AGAINST THE EARNING OF HUGE INCOME, THE APPELLANT SOUGHT TO CLAIM FOR SET OFF L OSS WHICH IS NOT ALLOWABLE AS PER LAW. HAD THERE BEEN NO SCRUTINY AS SESSMENT, THE APPELLANT COULD HAVE GOT AWAY FROM PAYMENT OF LAXES . THE APPELLANT WAS FORCED TO ACCEPT THE FALSE CLAIM IN THE RETURN OF INCOME ONLY WHEN THE ISSUE WAS CONFRONTED WITH THE ASSESSEE DURING T HE COURSE OF ASSESSMENT PROCEEDINGS COMPLETED VIDE ORDER DATED 1 4.12.2017. HENCE, IT IS A CLEAR CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME WITH A DELIBERATE ATTEMPT TO CONCEAL THE INCOME AND EVADE THE APPROPRIATE TAXES. HENCE, I CONFIRM THE LEVY OF PE NALTY. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL PLEADINGS AGAINST AND IN SUPPORT OF THE IMPUGNED PENAL TY. THE REVENUES ONLY CASE BEFORE US; IN TUNE WITH THE CIT(A)S ABOVE DETAILED DISCUSSION, IS THAT THE ASSESSEE HAD CL AIMED BROUGHT FORWARD LOSS OF RS.63,84,746/- BY FILING ITS RETURN OF INCOME BEYOND THE DUE DATE PRESCRIBED UNDER THE ACT. W E FIND ITA NO. 55/HYD/2019 :- 3 -: NO REASON TO CONCUR WITH THE SAME. THE FACT REMAINS THA T THE DEPARTMENT IS VERY FAIR IN NOT DISPUTING THE ACTUAL FIGU RES OF ASSESSEES BROUGHT FORWARD LOSS OF RS.63,84,746/- W HICH HAS BEEN DISALLOWED ONLY FOR THE REASON OF BELATED FILING OF RETURN. HON'BLE APEX COURTS LANDMARK DECISION IN CIT VS. R ELIANCE PETROPRODUCTS P. LTD., [322 ITR 158] (SC) HAS SETTLED TH E LAW THAT QUANTUM AND PENALTY ARE PARALLEL PROCEEDINGS WHE REIN EACH AND EVERY DISALLOWANCE / ADDITION MADE IN CASE OF THE FORMER DOES NOT IPSO FACTO ATTRACT THE LATTER PENAL PROVISION. WE THUS REITERATE THE ASSESSEES FACT OF ITS FIRST BROUGH T FORWARD LOSS FIGURES NOT INCORRECT TO HOLD THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN IMPOSIN G THE IMPUGNED PENALTY OF RS.19,15,424/-. THE SAME IS DI RECTED TO BE DELETED. 4. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH MARCH, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 17-03-2021 TNMM ITA NO. 55/HYD/2019 :- 4 -: COPY TO : 1.SURAY SRIHARSHA, H.NO.14-484-A, GANDHI ROAD, MADANAPALLE, CHITTOOR DIST., A.P. 2.THE ASST.COMMISSIONER OF INCOME TAX, CIRCLE-1(1), TIRUPATI. 3.CIT(APPEALS)-TIRUPATI. 4.PR.CIT-TIRUPATI. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.