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2019 (6) TMI 1375 - MADRAS HIGH COURTPenalty u/s 271(1)(c) - furnishing of income under an incorrect head - assessee shown stock appreciation rights and gain as capital gain in place of perquisites under salary - whether short payment of taxes does not amount to concealment of income or furnishing of inaccurate particulars of income? - HELD THAT:- Assessee that there had been no deliberate concealment nor there had been deliberate non disclosure and that the assessee disclosed the amount, which, according to the Department, should have been shown as a perquisite because the employer had treated it as a perquisite and deducted tax at source. Though the assessee offered an explanation, it was not found to be acceptable by the AO. CIT(A), when he proposed to confirm the findings of the AO, should record his own independent reasons as to how the conduct of the assessee was deliberate in not disclosing the perquisites shown by the employer in Form 16 and as to how such a deliberate conduct would amount to concealment of income. CIT(A) did not give independent reasons in support of his conclusions except stating that the assessee's conduct was deliberate. This would be sufficient to set aside the orders passed by the CIT(A). The Tribunal, in our considered view, examined the conduct of the assessee. The assessee, who is a salaried employee, had disclosed the value of the stock appreciation rights and gain thereof and claimed the same as capital gain. AO treated the gain as a revenue receipt and levied tax. In such circumstances, whether it could have been stated that there was concealment of income or whether the assessee furnished inaccurate particulars of income. Tribunal rightly held that it is nobody's case that the assessee concealed the allotment of stock appreciation rights or gain arising out of such appreciation. In fact, there had been a difference of opinion or difference in interpretation of the manner, in which, the assessee interpreted the returns. Therefore, when there were two opinions possible, it cannot be stated that the conduct of the assessee amounted to deliberate concealment of income with certain mala fide intentions.
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