TMI Blog2016 (1) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Appellants : Shri K. R. Lakshminarayanan For the Respondent : Shri Sacchidanand Dubey ORDER Per I. P. Bansal, J. M These appeals are filed by the respective assessees and they are directed against four separate orders passed by Ld. CIT(A)-40 Mumbai dated 13/3/2013 in respect of each of the appeals. Grounds of appeal in all the appeals are identical except difference in figures. Grounds of appeal in WTA No.24/Mum/2013 read as under: 1. The Order passed by the learned CWT is bad in law. 2. The learned CWT erred in not deleting the penalty of ₹ 65,158/- levied by the A.O. u/s.18( 1 )( c) of the Act. 3. The learned CWT failed to note that Appellant had filed voluntarily the Return of Wealth, before issue of notice by the A.O. and that A.O. issued notice uls.17, two months later only to regularize to return and that assessment was completed by A.O. without making any addition to the wealth returned by the Appellant and therefore Appellant neither concealed particulars of any asset nor furnished inaccurate particulars of any asset / Debt. 4. The learned CWT failed to note that the one and only taxable wealth of Appellant was her jewelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 2008-09 in para-1 of the penalty order, however, while levying penalty in respect of assessment year 2007-08 the same has been levied on the basis of quantum of wealth assessed. Similar mistake is also done in penalty order passed for A.Y 2008-09 in the case of Shanti Bhagwandas Raheja. 4.2 Before AO, it was submitted that the only assessable items of the wealth are jewellery and motor cars. Due to lack of awareness of wealth tax provisions attributable to a women the assessee filed wealth tax return voluntarily on 19/1/2011 i.e. before receipt of any notice under section 17 of the Wealth Tax Act, which was issued on 15/3/2011. Wealth Tax return filed by the assessee has been accepted without any addition and thus, it was submitted that penalty should not be imposed. However, AO has imposed the penalty with the following observations. 3. I have considered the submission filed by the assessee and have given a careful: thought. However, it is pertinent to note that no return of net wealth has been furnished by the assessee within the time period specified under section 14 of Wealth Tax Act, 1957, while he was in possession of net wealth is above the limit prescribed for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the judgement in the case of Hindustan Steel Ltd. (supra). However, this judgement is quite old and in the recent judgment in the case of Dharmendra Textile Processors Ltd., 306 ITR 277, the Hon ble Supreme Court observed that in case of penalty u/s. 271(1)(c), the AO is not required to prove mensrea. Provision of Section 271(1) (c) of the I.T. Act and 18(1)(c) of Wealth tax Act are similar. Further, as per Explanation (3) to Section 18(1) (c), the penalty is imposable on the facts of this case. On identical facts, Hon ble ITAT, Delhi in case of ACIT vs. Sahara India Saving Investment Corporation Ltd., 2010-TOIL-DEL-WT have upheld penalty u/s. 18(1) (c) imposed. 3.4 In view of the facts and legal position as above, penalty imposed by AO u/s. 18(1)(c) is upheld. 4.4 The assessee is aggrieved with the aforementioned order of Ld. CIT(A) and has filed aforementioned grounds of appeal. 5. After narrating the facts, it was submitted by Ld. AR that Ld. CIT(A) has committed an error in confirming the levy of concealment penalty. He submitted that decision in the case of ACIT vs. M/s. Sahara India Saving Investment Corporation Ltd.(supra) has wrongly been relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . After filing of the wealth tax returns these have been regularized by issue of notice under section 17. Thus, According to the facts of the case it can be said that the action of the assessee regarding filing of wealth tax return was voluntary. According to the facts of the case, no addition whatsoever has been made to the wealth returned by the assessee. Under these facts and circumstances of the case we have to examine that whether or not levy of concealment penalty in the present case is justified. 7.1 The law relating to levy of concealment penalty has been considered by the Hon ble Apex Court in various decisions and reference can be made to the decision of Hon ble Supreme Court in the case of Dilip N. Shroff, 292 ITR 519, wherein their Lordships while examining the nature of concealment penalty have observed that imposition of penalty is not automatic. Levy of penalty is not only discretionary in nature but such discretion is required to be exercised on the part of the AO keeping the relevant factors in mind. Their Lordships further observed that penalty proceedings are not to be initiated, as has been noticed by the Wanchoo Committee, only to harass the assessee. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a case where the assessee has furnished his return in pursuance to notice under section 17 but the return has been furnished much before the issue of notice under section 17 and notice under section 17 has been issued only to regularize the return which was already filed by the assessee. The filing of return by the assessee on 19/1/2011 cannot be said to be a return filed in pursuance of a notice under section 17 as the notice was issued on 15/03/2011.. Therefore, also Explanation-3 would not be applicable to the facts of the present case. 7.4 In the facts and circumstances of the case we found that the return filed by the assessee was voluntary. After receipt of the return, notice under section 17 has been issued to regularize the said return. There is no material on record to show that any action under section Wealth Tax Act was contemplated against the assessee prior to filing of the return by the assessee, The returns filed by the assessees have been accepted without making any addition. Considering these facts and circumstances of the case, we are of the opinion that Ld. CIT(A) has committed an error in confirming levy of concealment penalty which according to the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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