TMI Blog2012 (9) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... oncealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. Absence of due care, in a case such as the present does not mean that the assessed is guilty of either furnishing inaccurate particulars or attempting to conceal its income. Imposition of penalty on the assessee is not justified - Decided in favor of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( d ) ** ** ** ** ** ** ( e ) ** ** ** ** ** ** ( f ) ** ** ** ** ** ** ( g ) ** ** ** ** ** ** ( h ) ** ** ** ** ** ** (i) provision for payment of gratuity not allowable under section 40A(7); Rs.23,70,306/-(Liability provided for payment of gratuity) (i) provision for payment of gratuity not allowable under section 40A(7); Rs.23,70,306/-(Liability provided for payment of gratuity) 5. Even though the Statement indicated that the provision towards payment of gratuity was not allowable, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee was communicated the reasons for reopening the assessment, it realized that a mistake had been committed and accordingly by a letter dated 20-1-2005 the Assessing Officer was informed that there was no wilful suppression of facts by the assessee but that a genuine mistake or omission had been committed which also appears to have been overlooked by the Assessing Officer before whom the Tax Audit Report was placed. Accordingly, the assessee filed a revised return on the same day. A reassessment was passed on the same day and the assessee then paid the tax due as well as the interest thereon. 10. Unfortunately for the assessee, the Assessing Officer thereafter initiated penalty proceedings under section 271(1)(c) of the Act. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 271(1)(c) of the Act has specifically stated about the concealment of the particulars of income or furnishing of inaccurate particulars of such income which has to be read "either" - "or" and on the given facts of this case would automatically come within the four corners of section 271(1)(c) of the Act and we come to the conclusion that the appellant have failed to discharge their strict liability to furnish their true and correct particulars of accounts while filing the return. We are also of the opinion that the penalty under that provision is a civil liability and wilful concealment is not an essential ingredient for attracting civil liability as in the mailer of prosecution under section 276C, as has been held by the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard learned counsel for the parties, we are of the view that the facts of the case are rather peculiar and somewhat unique. The assessee is undoubtedly a reputed firm and has great expertise available with it. Notwithstanding this, it is possible that even the assessee could make a "silly" mistake and, indeed this has been acknowledged both by the Tribunal as well as by the High Court 18. The fact that the Tax Audit Report was filed along with the return and that it unequivocally stated that the provision for payment was not allowable under section 40A(7) of the Act indicates that the assessee made a computation error in its return of income. Apart from the fact that the assessee did not notice the error, it was not even noticed even by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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