TMI Blog2015 (10) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... and had number of businesses. Therefore, the assessee’s claim that he was ignorant about legal position of salary received in Bangkok and second house purchased during the year under consideration and claimed deduction U/s 54F by not disclosing the facts of the another house purchased in the return, proved that the assessee’s action was not bonafide. We have considered view that the assessee has concealed the particulars of income and furnished inaccurate particulars of income. The case law cited by the assessee are not squarely applicable on it. Action of the assessee was neither bonafide nor voluntary, therefore, penalty is liable. Voluntary disclosure does not release the assessee from the mischief of penal proceedings. The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he has to be absolved from penalty. Therefore, we have considered view that the ld CIT(A) was right to confirm the penalty on given circumstances. Accordingly, we uphold the order of the ld CIT(A) - Decided against assessee. - ITA No. 842/JP/2012 - - - Dated:- 7-9-2015 - SHRI R.P. TOLANI, JM SHRI T.R. MEENA, AM For The Assessee : Shri G.G. Mundra (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it and had claimed rebate U/s 90 of ₹ 47,456/-. The penalty proceedings U/s 271(1)(c) of the Act was initiated for furnishing wrong particulars and concealment of income in respect of income of ₹ 3,53,599/- by the Assessing Officer. The assessment for A.Y. 2006-07 was completed at assessed income of ₹ 41,33,070/- against the returned income of ₹ 23,68,116/-. During the previous year relevant to the assessment year, the assessee had sold three properties i.e. plot of Kalyan Colony on 12/01/2006 for ₹ 26,75,600/-, plot of Chitrakoot on 12/07/2005 for ₹ 8,50,000/- and agricultural land on 13/02/2006 at ₹ 1.5 crores. The long term capital gain was shown by the assessee at ₹ 34,74,458/- and claimed exemption U/s 54F for whole amount by investment in construction of house but on verification, the ld Assessing Officer found that the assessee had purchased another residential flat at 5-Kalyan Colony, Jaipur for ₹ 24,72,700/- on 11/05/2006 i.e. before the date of filing of return of income. No other deposits in capital gain account scheme had been made, therefore, ld Assessing Officer allowed proportionate exemption U/s 54F and calculat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means rea for fastening penalty. If the actus of assessee falls within the four corners of the provisions of the said Section, the imposition of the penalty is independent of any mental state of the assessee and as such a claim of bonafide mistake of law does not come to his rescue. The ld Assessing Officer further held that the assessee had also claimed exemption U/s 54F was claimed excess on the basis of advice of the counsel of the assessee. The assessee has disclosed long term capital gain amounting to ₹ 50,25,600/- and same had been claimed invested in a residential property. However, the assessee actually invested ₹ 24,74,700/- and claimed benefit for the whole amount. The excess claim of the assessee amounting to ₹ 17,64,954/-, which was disallowed by the Assessing Officer in quantum addition. Now the assessee s reply is perfunctory and do not carry any weight by saying that the tax was paid on amount added back does not absolve the assessee of the wrong committed by him. The ld Assessing Officer also considered the case law submitted before the Assessing Officer, which was found distinguishable from those of the said case laws and therefore, the ld Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income in India. Similarly regarding wrong and excess claim U/s 54F of IT Act it is stated that due to ignorance of law such claim was made and no malafide could be attributed. On careful consideration of the facts and circumstances of this case, it is noted that the submission of the appellant cannot be accepted and treated as genuine inasmuch as, the appellant is regularly assessed to tax, deriving income from business and profession, the accounts are audited by Chartered Accountants and the appellant is assisted by taxation experts on regular basis. In this background it cannot be believed that such wrong claim were made and salary income was not shown due to ignorance of law and in fact such omission cannot said to be unintentional or bonafide. Though it is correct that the basic facts relating to these two issues are shown by the appellant but the fact remained that income was evaded by way of wrong claim of deduction U/s 54F of IT Act and not shown the salary income in India whereas the same was taxable. The important issue to be noted is that such admission of income during the assessment proceedings and in the return filed subsequent to search in respect of salary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section 90 of I. T. Act, 1961 and same was also allowed in assessment made. Thus a nominal tax effect was there and, therefore, assessee could not be expected to suppress dishonestly the said salary income from his return. The inadvertent error of law was occurred due to not being aware of law and because of not getting proper advice from the counsel who filed the return. The Ld. A.O. also not held either in assessment proceedings nor in penalty proceedings that conduct of assessee in not doing so was contumacious or fraudulent. He further submitted that as regards to disallowance of deduction u/s 54F, it is submitted that assessee had capital gains during the year totaling to ₹ 34,74,458/- on net sales consideration of ₹ 50,25,600/- as per details given in assessment order. The sale consideration and capital gain was correctly disclosed in return filed giving full particulars and the same was accepted by A.O. in assessment. The assessee also made investment of ₹ 50,25,600/- i.e. total net sale consideration in construction of a new house during the year itself and the same has also been found correct by A.O. in assessment. The assessee on these facts c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance Petro Products P. Ltd. (2010) 322 ITR 158 wherein it was held. That mere making of claim which is not substantiable in law by itself will not amount to furnishing of inaccurate particulars of income. In this context it is contended that the claim of the appellant was neither bogus or fraudulent and even if such claim has been made which has not been allowed then keeping in view the ratio of judgment decide by the Hon'ble Supreme Court mentioned above, the case of the appellant cannot said to be furnishing of inaccurate particulars of income or concealment of income. The appellant has further placed reliance on the judgment of Hon'ble ITAT, Mumbai Bench in case of Narang International Hotels Pvt. Ltd. Vs. DCIT reported in (2012) 137 ITD 53. The Ld. CIT (A) gave finding (para 6 of appeal order last line) that Though it is correct that basic facts relating to these two issues are shown by appellant . In view of the above specific finding the said judgments are to be applied which has not been dealt by CIT (A) in his appeal order. As regards to finding that the submission of appellants cannot be accepted and treated as genuine in as much as the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived from RMC Gems Thai Co. Ltd., Bangkok voluntarily has not substantiated with any evidence. The Assessing Officer issued notice U/s 153A to file the return in response to survey proceedings. Thereafter, the assessee has disclosed the salary received in Thai Bhat in Bangkok in global income. Similarly the excess claim of exemption U/s 54F had also not been revised even notice U/s 153A was issued to the assessee. The assessee was availing expert opinion on taxation matter as he was filing return since long and had number of businesses. Therefore, the assessee s claim that he was ignorant about legal position of salary received in Bangkok and second house purchased during the year under consideration and claimed deduction U/s 54F by not disclosing the facts of the another house purchased in the return, proved that the assessee s action was not bonafide. We have considered view that the assessee has concealed the particulars of income and furnished inaccurate particulars of income. The case law cited by the assessee are not squarely applicable on it. The case laws relied by the ld CIT(A) CIT Vs. Rakesh Suri 331 ITR 458 (All) is squarely applicable wherein the Hon ble Court has he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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