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TMI Blog2019 (9) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... me for the assessment year 2009-10, on 28.09.2010, admitting total income as Rs.NIL. The assessment was completed under Section 143(3) of the Act, vide order dated 01.12.2011, determining the loss at Rs. 9,18,109/- and book profits as determined under Section 115JB of the Act at Rs. 28,69,799/-. The assessment order had become final, as the assessee accepted the assessment and paid taxes. 4.The Assessing Officer initiated penalty proceedings by issuing notice dated 01.12.2011. Though in the notice the exact allegations as regards furnishing inaccurate particulars or regarding concealment of particulars were not specifically mentioned, in the penalty order dated 27.06.2012, under Section 271(1)(c) of the Act, the reason has been set out. The reason assigned by the Assessing Officer is that the assessee is liable for payment of Minimum Alternate Tax (MAT) under Section 115JB of the Act. However, the assessee had neither filed Form 29B, nor paid taxes as required to be paid under Section 115JB of the Act. Therefore, the Assessing Officer opined that penalty has to be imposed. 5.In reply to the show cause notice, the assessee stated that penalty can be imposed only when there is a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, the question of levying penalty will not arise. Further, it was pointed out that the assessee has not provided any inaccurate particulars neither in the return of income, nor to the Assessing Officer while submitting the books of accounts. 9.The assessee placed reliance on the decision of the Hon'ble Supreme Court in CIT vs. Reliance Petroproducts Pvt. Ltd., (2010) 322 ITR 158. The CIT(A) held that the assessee was bound to have declared income under both the provisions as well as under Section 115JB of the Act and there can be no exception or lenience. 10.Referring to the decisions in the case of Sri Golulam Hotels India (P) Ltd. vs. ACIT, (2014) 49 taxmann.com 543 (Madras HC) and Terra Energy Ltd., 12 taxmann.com 405 (Chennai ITAT), the CIT(A) upheld the order of the Assessing Officer. 11.The assessee carried the matter by way of appeal to the Tribunal. Before the Tribunal, it was contended that the income was assessed under Section 115JB of the Act and not under normal provision and it is not denied that there is a concealment of income, but that had its repercussions only when the assessment was done under the normal procedure. Further, it was argued that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the penalty notice have not been deleted and the space have been left blank except for the hearing date, which has been mentioned in the notice. However, the assessee has not raised such a plea before the Assessing Officer and therefore, at this juncture, we do not propose to invalidate the penalty proceedings on the ground that the penalty notice dated 01.12.2011 is devoid of material. The reason for imposition of penalty is on the ground that the assessee is liable for payment of MAT under Section 115JB of the Act and that the assessee had neither filed Form 29B, nor paid taxes as required to be paid under Section 115JB of the Act. 17.The explanation given by the assessee is that, at the time of filing the e-return, they were advised by a Chartered Accountant, who had helped them to file the necessary details. Copy of the return of income dated 28.09.2009 has been filed by the assessee in the form of an additional paper book. From the return of income, we find that so far as the deduction under Section 10B of the Act is concerned, the assessee has mentioned the figure as Rs. 3979312/-. With regard to the Minimum Alternate Tax, in column 5(b), relating to "deductions", t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for details and the Assessing Officer accepts that those details were furnished by the assessee and the books of account and bank statement were produced and examined by the Assessing Officer. 22.At the time when the assessment proceedings were going on, it was pointed out by the Assessing Officer that the assessee had not filed Form 29B, nor paid taxes as required to be paid under Section 115JB of the Act. The assessee's case was that the Chartered Accountant, whom they have engaged, had prepared form 29B on 01.09.2009, but the same was not filed along with the return, but subsequently, the Chartered Accountant passed away and they were advised in a particular manner to file the return of income and there is no intention to conceal particulars or furnish inaccurate particulars. The Assessing Officer notes that the authorised representative of the assessee during the assessment proceedings, when the Assessing Officer pointed out the omission, filed Form 29B. This was examined and tax was computed and the same has been remitted by the assessee along with interest levied under Section 234B and 243C of the Act. 23.The allegation against the assessee is that they had furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X
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