Heranba Industries Ltd vs. DCIT (ITAT Mumbai)

DATE: April 8, 2015 (Date of pronouncement)
DATE: April 24, 2015 (Date of publication)
AY: 2009-10
FILE: Click here to download the file in pdf format
S. 271(1)(c): Surrender of income after questionnaire does not mean it is not voluntary. If surrender is on condition of no penalty and assessment is based only on surrender and not on evidence, penalty cannot be levied

From the record we found that at the very first instance share application money was surrendered by assessee with a request not to initiate any penalty proceedings. The AO passed order u/s.143(3) adding surrendered amount u/s.69A on the plea that assessee has surrendered amount only after issue of notice. It is not disputed by the department that sum which was added u/s.69A was one which was surrendered by the assessee itself. Neither there was any detection nor there was any information in the possession of the department except for the amount surrendered by the assessee and in these circumstances it cannot be said that there was any concealment. In case of CIT vs. Suresh Chandra Mittal 251 ITR 9 (SC), Hon’ble Supreme Court observed that if the assessee has offered the additional income to buy peace of mind and to avoid litigation penalty u/s.271(1)(c) of the Act cannot be levied. In the instant case, there was no malafide intention on the part of the assessee and the AO had not brought any evidence on record to prove that there was concealment of income. At the time of surrender itself contention of not initiating any penalty proceedings was there. No additional matter was discovered to prove that there was concealment of income. The AO has included the amount of share capital in the total income of assessee merely on the basis of assessee’s declaration/surrender. The AO did not point out or refer any evidence or material to show that the amount of share capital received by the assessee was bogus. It is also not the case of the revenue that material was found at the assessee’s premises to indicate that share application money received was an arranged affair to accommodate assessee’s unaccounted money. Thus there was no detection by the AO that share capital was not genuine. The surrender of share capital after issue of the notice u/s.143(2) could not lead to any inference that it was not voluntary. Admittedly the assessee has offered the amount of share capital for taxation voluntarily and it was not the case of revenue that the same was done after its detection by the department. It is quite clear from the record that this entire transaction was not detection of the AO that the share capital was not genuine and that the assessee had offered the amount without any specific query. Even surrender of amount by the assessee after receipt of questionnaire could not be lead to any inference that it was not voluntary, in the absence of any material on record to suggest that it was bogus or untrue. The contention that in every case where surrender is made inference of concealment of income must be drawn under S.58 of Evidence Act, cannot be accepted in view of the decision of Punjan & Haryana High Court in the case of Careers Education & Infotech (P) Ltd., (2011) 336 ITR 257 (P&H). Not an iota of evidence was narrated to support the addition made except the surrender made by the assessee itself. When no concealment was ever detected by the AO, no penalty was impossible. Recently, Hon’ble Punjab & Haryana High Court in the case of Siddharth Enterprises vide order dt. 14th July, 2009 held after considering the decision of Hon’ble Supreme Court in the case of Union of India & Ors. vs. Dharamendra Textile Processors & Ors. (2008) 306 ITR (SC) 277 that the judgment of Hon’ble Supreme Court in the case of Dharmendra Textiles (supra) cannot be read as laying down that in every case where particulars of income are inaccurate, penalty must follow. What has been laid down is that qualitative difference between criminal liability under s. 276C and penalty under s. 271(1)(c) had to be kept in mind and approach adopted to the trial of a criminal case need not be adopted while considering the levy of penalty. Even so, concept of penalty has not undergone change by virtue of the said judgment. It was categorically observed that penalty should be imposed only when there is some element of deliberate default and not a mere mistake. This being the position, the furnishing of inaccurate particulars was simply a mistake and not a deliberate attempt to evade tax. Hon’ble Supreme Court in the case of CIT vs. Suresh Chandra Mittal 251 ITR 9 (SC) observed that where assessee has surrendered the income after persistence queries by the AO and where revised return has been regularized by the Revenue, explanation of the assessee that he has declared additional income to buy peach of mind and to come out of waxed litigation could be treated as bona fide, accordingly levy of penalty under s. 271(1)(c) was held to be not justified.

One comment on “Heranba Industries Ltd vs. DCIT (ITAT Mumbai)
  1. find hon tribunal members again mostly good , some errors happen just because Revenue is woefully incompetent, might be due to the problem that recruitment authorities perhaps equally incompetent perhaps or the policy of government is to recruit only incompetent educated persons due to governments bad education policy, as yesterday an MP in Satpathy highlighted how bad is the education policy that is in fact promoting students that led most bihar schools examinations or the university examination suffer from all methods of copying.

    fact remains education minister really smiled helplessly.

    when so, why so high salaries are paid per 6th pay commission that drains tax payers money illegally but legalized by the law makers today.

    naturally hon tribunals/courts need to be very very careful to handle the matters else peoples trust would go down the drains.

    so indeed hon tribunal rightly have decided this case.

    why tax payers need to suffer by such incompetent governments in place today is the burning question, that need to be answered.

    what is the great idea of national judicial commission Act to be made is to be duly questioned by very taxpayers, when collegium system is tested over decades, how we can trust the untested idea promoted by the great bill.

    indeed hon SC rightly raised questions with attorney general, if we allow the bill to be made an Act, what would be the position of all the judges hitherto appointed under collegium system, in fact said in uncertain terms that what would happen to constitutional provision of ‘impeachment of judges’ provision, if per se the so called new proposed Act if judges selected would it mean no more ‘impeachments of judges, at all’ as we all know even lok sabha could not muster 50 MP members to sign the petition to be presented, when so what is the veracity of this great new bill needing a constitutional amendment, clearly shows how wise are the governments promoting the bill…indeed, it is clear our great MPs are indeed so men of great Wisdom!

    hen govt itself so wise what could one expect when it could not recruit a meaningful revenue officers how they could recruit very competent judges is the another burning question before indian citizens, as tax payers both direct and indirect taxes every indian is indeed taxed by one way or other.

    indian citizens need to ponder over what kind of democratic governments they get for it would be sure to surface some seriously arbitrary governments which might sooner or later could turn into some dictatorships what Lord Macaulay said!. see how great is Lord Macaulay was!

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