TMI Blog2019 (9) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... ed view, the assessee's case is not a case where the provisions of Section 271(1)(c) could have been invoked, as there has been no finding recorded by the AO that they have furnished inaccurate particulars or for concealing particulars. Order passed by the AO imposing penalty is perverse. Orders passed by the CIT(A) and the Tribunal confirming such orders are liable to be interfered with. Appeal filed by the assessee is allowed - Tax Case Appeal No.618 of 2019 - - - Dated:- 22-8-2019 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Subbaroyan For the Appellant : Mr.V.S.Jayakumar For the Respondent : Mr.M.Swaminathan, Senior Standing Counsel assisted by Ms.S.Premalatha, Standing Counsel JUDGMENT T.S.SIVAGNANAM, J. This appeal, filed by the appellant/assessee under Section 260A of the Income-tax Act, 1961 (hereinafter referred to as the Act ), is directed against the order dated 10.05.2019, passed by the Incometax Appellate Tribunal 'C' Bench, Chennai (for brevity, the Tribunal ), in I.T.A.No.2384/Chny/2018 for the assessment year 2009-10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quested that the penalty proceedings be dropped. However, the Assessing Officer did not agree with the assessee and passed the order under Section 271(1)(c) dated 27.06.2012 and imposed minimum penalty of ₹ 2,95,589/-. 6.Aggrieved by such order, the assessee preferred appeal before the Commissioner of Income-tax (Appeals)-11, Chennai (for brevity, the CIT(A) ). In the appeal petition, apart from the grounds canvassed before the Assessing Officer, it was contended that penalty ought not to have been imposed without taking note of the representation given by the assessee that they were improperly advised. Further, it was contended that the tax paid under Section 115JB of the Act is only a presumptive tax and claimed credit in the subsequent assessment years as and when liability arises to the assessee. 7.Before the CIT(A), the Assessing Officer stated that the assessee had furnished inaccurate particulars in the return of income and hence, penalty under Section 271(1)(c) of the Act will be attracted. On the other hand, the assessee contended that the Assessing Officer has observed that the assessee has rightly claimed deduction under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee holding that the explanation offered by the assessee, in response to the show cause notice issued under Section 271(1)(c) of the Act, is not a plausible explanation and there is no material on record to establish as to why the assessee had entertained the belief that profit is exempt from tax under the provision of Section 10B of the Act and not liable to tax under Section 115JB of the Act. 13.Further, the Tribunal pointed out that the explanation offered by the assessee was a bald explanation and cannot be a plausible explanation and levy of penalty was justified. The decision in the case of Nalwa Sons Investments Ltd. (supra) relied on by the assessee was held to be not applicable to the facts of the case. This is how the assessee is before us by way of this tax case appeal. 14.We have elaborately heard Mr.V.S.Jayakumar, learned counsel for the appellant/assessee; and Mr.M.Swaminathan, learned Senior Standing Counsel assisted by Ms.S.Premalatha, learned Standing Counsel appearing for the respondent/Revenue. 15.In order to levy penalty under Section 271(1)(c) of the Act, the Assessing Officer should be satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the e-return, but subsequently during the assessment proceedings. 19.The objection of Mr.M.Swaminathan, is that when the assessee has shown Rs. zero in the column tax under Section 115JB of the Act in the assessment year 2008-09, it definitely amounts to furnishing inaccurate particulars or concealing the particulars of the assessee's income. Further, Mr.M.Swaminathan, would contend that the assessee is not an individual, but a private limited company and the plea raised by them is absolutely far fetched and the Assessing Officer and the CIT(A) and the Tribunal have concurrently held against the assessee and the finding of the Tribunal should not be disturbed. 20.It is true that when there are concurrent findings of fact, this Court exercising power under Section 260A of the Act will not interfere unless and until a case of perversity is established. It is a settled legal principle that merely because the assessee has accepted the quantum assessment as assessed by the Assessing Officer, based on the return of income and paid taxes, it will not automatically lead to levy of penalty and the assessee is entitled to contest the levy of penalty an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, we are of the considered view that it is not a case where penalty could have been imposed on the assessee. 24.In Reliance Petroproducts Pvt. Ltd., (supra) the Hon'ble Supreme Court pointed out that for Section 271(1)(c) to be attracted, there has to be concealment of particulars of income of the assessee and secondly, the assessee must have furnished inaccurate particulars of his income. Admittedly, there is no allegation against the assessee before us that they had concealed particulars of their income. However, the allegation is inaccurate particulars have been furnished. The Assessing Officer while completing the assessment vide order dated 01.12.2011, does not record any finding that the particulars given by the assessee in the return of income is incorrect or inaccurate, but the conclusion of the Assessing Officer is based upon an interpretation of the legal position and held that tax is payable under Section 115JB. 25.The assessee's specific case was that they were advised to file the return of income in a particular fashion and prior to the assessment proceedings, their Chartered Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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