Pankaj Kumar Gupta vs. ITO (ITAT Lucknow)

DATE: January 16, 2018 (Date of pronouncement)
DATE: January 24, 2018 (Date of publication)
AY: 2012-13
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S. 271(1)(c) penalty: Though capital gains was not disclosed in the return, if tax on the same is paid after the s. 147 assessment order is passed, there is no loss to the Revenue and it also shows the bona fides of the assessee and penalty cannot be levied. The fact that if the s. 148 notice was not issued, the assessee would have got away with tax evasion does not mean that his action was not bona fide

At the very outset, we observe that as appearing on record, in the return filed by the assessee the tax on sale of immoveable property was not paid or entered into. However, when notice under section 148 of the Act was issued, assessee himself attended the proceedings and thereafter paid the entire tax on the same date when the assessment order was finalized. This element of behaviour on the part of the assessee shows that when he had filed the return, there was some omission on the part of the assessee to include the tax on the sale of property. However, when he received notice under section 148 of the Act, he was very eager to know what mistake has been committed by him and, therefore, he himself attended the hearing before the Assessing Officer and on coming to know about the amount of tax payable, has immediately paid tax on the same date. He has not even challenged the assessment order and has accepted the assessment as passed by the Assessing Officer and paid due tax. Therefore, there is no loss to the Revenue. The Assessing Officer as well as the ld. CIT(A) were of the opinion that if the notice under section 148 of the Act was not issued, then assessee would have got away with the tax evasion and, therefore, penalty was levied. The spirit of section 271(1)(c) of the Act says “concealment of income or furnishing of inaccurate particulars of income”. Now the judicial pronouncements are absolutely clear that if in the return of income certain mistake is there, which is bona-fide and there is also no loss to the Revenue, then in the absence of any material on record, we cannot come to the conclusion that assessee has deliberately concealed the income or has furnished inaccurate particulars of income. In the instant case, nothing is on record to show that there was any malafide intention on the part of the assessee to conceal the income or furnish inaccurate particulars of income and there was an omission while filing the return of income which was rectified through challan on the very date of passing the assessment order. But the entire exercise cannot be brought to the ambit of penalty under section 271(1)(c) of the Act. We are, therefore, of the considered view that this penalty should be cancelled and we order cancellation of penalty.

One comment on “Pankaj Kumar Gupta vs. ITO (ITAT Lucknow)
  1. better sever sec 148. No point in giving sections in tax Act that vitally affects the assessee.

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