TMI Blog2016 (4) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... view adopted by the assessee is a plausible bona-fide view although the same did not found favour with the Revenue and the assessee chose not to file appeal against the said additions but that does not mean that every claim which is not sustained by the revenue will make the tax-payer liable to penalty u/s. 271(1)(c) of the Act. The claim of the assessee was plausible and bona-fide and we hold that no penalty can be imposed u/s 271(1)(c) of the Act on this count. With respect to the amount of ₹ 16,803/-, it was stated that inadvertently the assessee failed to declare the interest received on savings bank account amounting to ₹ 16,803/- and the omission was neither intentional nor willful.The amount involved is also trivial. Thus there is no deliberate attempt on the part of the assessee and it is not a fit case to impose penalty u/s 271(1)(c) of the Act on the assessee as the conduct of the assessee if seen in context of preceding and succeeding years as set-out above does not warrant imposition of the penalty u/s 271(1)(c) - Decided in favour of assessee. - I .T.A. No. 4887/Mum/2014 - - - Dated:- 20-4-2016 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAMIT KOCHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Revenue and the total salary has not been declared in the return of income filed with the Revenue, the amount of ₹ 19,13,676/- (Rs.21,48,558 ₹ 2,34,882) was added to the total income of the assessee as under-declaration of salary income vide assessment orders dated 30-08-2013 passed by the AO u/s 143(3) of the Act and penalty proceedings u/s.271(l)(c) of the Act was also initiated against the assessee for concealment of income and furnishing of inaccurate particulars of income. During the course of penalty proceedings u/s 271(1)(c) of the Act, it was submitted by the assessee that it is a clear cut case of negligence on the part of professional online tax return filing portal Taxspanner , who were engaged by the assessee for filing her return of income with the Revenue and who have submitted the wrong details of the assessee while filing the assessee s return of income with the Revenue for which the assessee should not be penalized and the assessee has not done anything wrong or incorrect as far as filing of return of income with the Revenue is concerned. The assessee submitted that she has provided her Form No. 16 received from her employer to the website of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment order u/s.143(3) dated 30/08/2013. During the course of penalty proceedings u/s 271(1)(c) of the Act, the assessee submitted that the assessee has purchased a flat from broker M/s Buniyad Retail Pvt. Ltd. in Kensington Park at Jaypee Greens Sector-133 and received commission income of ₹ 85,270/- from M/s Buniyad Retail Pvt. Ltd. The assessee submitted that the said commission received from broker M/s. Buniyad Retail Pvt. Ltd is capital receipt and the same was reduced by her from the cost of the flat purchased through broker M/s. Buniyad Retail Pvt. Ltd in Kensington Park at Jaypee Greens Sector-133. The assessee submitted that mere non-acceptance of submission/explanation given by the assessee to the AO does not tantamount to filing of in-accurate particulars or concealment of income as no material has been brought on record by the AO which confirms that the income has been concealed by the assessee. The A.O. also observed that the assessee has earned interest from savings bank account maintaining with ICICI Bank of ₹ 16,803/- which was not offered for taxation in the return of income filed with the Revenue. The amount of interest income from ICICI Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income with the Revenue for the assessment year 2011-12 on 26/06/2011, but the assessee did not offer the same for taxation. Such income came to the notice of the A.O. through AIR information data-base only wherein it is shown as commission income. Since Commission income cannot be a capital receipt, the contention of the assessee was rejected by the A.O. Thus , the AO held that the assessee willfully concealed the income from the Revenue. With respect to interest income of ₹ 16,803/- , it was held by the AO that the assessee is a habitual tax evader and even for assessment year 2010-11 in the scrutiny assessment, ₹ 8,947/- was added to the income of the assessee. There is no excuse of ignorance of law and it is a willful furnishing of in-accurate particulars of income. The A.O. held that the assessee also failed to avail the opportunity of filing revised return u/s. 139(5) of the Act. The assessee also did not prefer any appeal against the above assessment order dated 30-08-2013 passed u/s 143(3) of the Act which shows that assessee has no objection for additions made to her income and has accepted that she has filed in accurate particulars of income. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim which is not sustainable in law by itself will not amount to furnishing of inaccurate particulars of income. The explanations offered by the assessee is bona-fide and there is no mala-fide intention which attract huge penalty of 300% that is the maximum penalty u/s 271(1)(c) of the Act. Similarly, the assessee submitted that inadvertently, the assessee failed to declare the interest received on savings bank account amounting to ₹ 16,803/- and the omission was neither intentional nor willful hence the penalty levied should be deleted. The CIT(A) after considering the submission of the assessee observed that the return filed by the assessee contains number of inaccurate particulars and income has not been offered to tax fully in respect of salary income, interest income and commission income. The CIT(A) observed that the AO has clearly brought out that the explanation offered in respect of these defaults is neither substantiated nor the bona-fides of the assessee have been established. The online tax return filing portal Taxspanner had sent a summary of the return prepared by them to the assessee, along with the ITR-V which the assessee confirmed and signed, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty to 100% of the tax sought to be evaded and allowed part relief to the assessee. The ld. Counsel submitted that the assessee filed return of income through online tax return filing portal Taxspanner . Apparently there was an error committed by the online tax return filing portal Taxspanner . There was calculation error in computing salary income . The assessee s counsel submitted that she is a salaried employee and received salary from M/s. AC Nielson Research Services Pvt. Ltd of ₹ 26,376/- and M/s. Hindustan Unilever Limited of ₹ 21,22,182/- totaling ₹ 21,48,558/- during the year. The said online tax return filing portal Taxspanner was duly furnished the copies of form no 16 / salary details received from the employers. The said tax filing online tax return filing portal Taxspanner punched salary received from Hindustan Lever Limited as Rs.2,09,614/- by mistake instead of correct salary of Rs.20,96,914/- and also the said online portal did not take into effect any other income of (-) ₹ 1,51,726/- reported by the assessee and hence the error in filing the return of income with the revenue. The details are placed in paper book filed with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 paper book filed with the Tribunal . The assessee submitted that the said discount as commission received from broker M/s. Buniyad Retail Pvt. Ltd is capital receipt and the same was reduced by the assessee from the cost of the flat purchased through broker M/s. Buniyad Retail Pvt. Ltd in Kensington Park at Jaypee Greens Sector- 133. The assessee submitted that the above receipt of ₹ 85,270/- is a discount on its investment in the house property which amounts to recovery of capital cost and the assessee has rightly reduced the same from the cost of acquisition of the property. A mere making of the claim which is not sustainable in law by itself will not amount to furnishing of inaccurate particulars of income or concealment of particulars of income. The explanations offered by the assessee is bona-fide and there is no mala-fide intention which attract huge penalty of 300% of tax sought to be evaded that is the maximum penalty u/s 271(1)(c) of the Act. Similarly, the assessee submitted that inadvertently, the assessee failed to declare the interest received on savings bank account with ICICI Bank amounting to ₹ 16,803/- and the omission was neither intentional nor wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are placed in paper book filed with the Tribunal. The assessee had submitted that she engaged the services of online tax return filing portal Taxspanner whom the assessee gave all the details of her income and the said online tax return filing portal Taxspanner committed above mistake s due to their negligence while filing return of income of the assessee with the Revenue. We have observed that it is stated by the assessee that she has provided her Form No. 16 received from her employer to the website of online tax return filing portal Taxspanner and received the confirmation from the said Taxspanner on 25/06/2011 stating that ITR-V is filed and assessee will get ITR-V (acknowledgement) copy from them in 24 hrs. It is stated that the assessee received the ITR-V from the said Taxspanner and sent it to the CPC Bangalore , Income Tax Department. The assessee submitted that at that time she was having pregnancy of 5 months and due to immense work pressure in the office she could not devote time to see the content of ITR filed by the said Taxspanner as she did not understand the form also, hence she just signed the ITR-V and sent it to the Bangalore CPC of Income Tax Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake in the assessment year 2011- 12 as contended by the assessee , return of income was wrongly filed .As soon as the assessee came to know about the error/mistake , she immediately took steps to deposit back the refund of taxes so received with the Government Treasury on 14-08-2013 and intimated the AO also vide letter dated 19-08- 2013. We find that the conduct of the assessee is bona-fide and there is no mala-fide intention on the part of the assessee although error/mistake took place in filing return of income for assessment year 2011-12 under appeal. If the assessee would have been habitual tax evader as contended by the Revenue , then her conduct would have shown that she is regularly seeking refund of taxes by filing erroneous return of income by concealing her income or furnishing inaccurate particulars of income which the above chart clearly shows otherwise , whereas the return of income till assessment year 2012-13 were all filed as set out above before the issuance of notice u/s 143(2) of the Act by the Revenue for the assessment year 2011-12 on 31.08.2012. Further, the assessee salary income was subjected to deduction of tax at source by her employers and the emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour with the Revenue and the assessee chose not to file appeal against the said additions but that does not mean that every claim which is not sustained by the revenue will make the tax-payer liable to penalty u/s. 271(1)(c) of the Act. The claim of the assessee was plausible and bona-fide and we hold that no penalty can be imposed u/s 271(1)(c) of the Act on this count. With respect to the amount of ₹ 16,803/-, it was stated that inadvertently the assessee failed to declare the interest received on savings bank account amounting to ₹ 16,803/- and the omission was neither intentional nor willful.The amount involved is also trivial. In our considered view, there is no deliberate attempt on the part of the assessee and it is not a fit case to impose penalty u/s 271(1)(c) of the Act on the assessee as the conduct of the assessee if seen in context of preceding and succeeding years as set-out above does not warrant imposition of the penalty u/s 271(1)(c) of the Act keeping in view peculiar facts and circumstances of the case as set out above as we find that no attempt has been made by the assessee in the preceding and succeeding years as set out above to file incorre ..... 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