S. 270A : Penalty for under-reporting and misreporting of income- Penalty notice was only regarding underreporting of income-Penalty levied u for misreporting of income and under reporting-Not specifying the specific charge-Salary received is shown in the return -Penalty of Rs. 44,90,048/- levied under section 270A(8) of the Act is deleted. [S. 139(9), 192, 270A(8), 270A(9)(e), 274, Form No. 26AS]
The assessee filed the return of income and claimed the refund of tax deducted at source, though the salary income was not offered to tax. The Assessing Officer issued notice under section 139(9) to rectify the mistake however the return was not rectified. In the course of assessment proceedings the Assessing Officer issued the notice u/s 143 (2) and made addition of Rs. 62 ,93, 742 to the total income of the assessee. In the course of penalty proceedings the assessee contended that by inadvertently gross salary was not shown in the return. The Assessing Officer levied the penalty of Rs.44,90,048/- under section 270A(8) of the Act. The penalty order is affirmed by the CIT(A). On appeal the assessee raised the additional grounds on jurisdictional issue. The Tribunal admitted the additional ground. After analysing the provisions the Tribunal held that in the assessment order, the Assessing Officer initiated the penalty under section 270A of the Act, without mentioning any sub -clause of the section 270A of the Act or specifying the any limb of the penalty proposed to be levied. In the penalty notice issued mentioned under reporting of income. Subsequently during penalty proceedings another notice without specifying any limb or sub clause of section270A of the Act. The penalty was levied for misreporting of the income as well as under reporting of the income as per section 270A(8) of the Act, with the aid of section 270A(9)(e) of the Act. The Tribunal held that there was no whisper at all in the notice issue under 270A read with section 274 of the Act, about misreporting of income, where as penalty has been levied for both under reporting of and misreporting of income @ 200 % in terms of section 270A(9 of the Act , for which show cause notice was never issued to the Assessee. Accordingly the penalty is deleted. Referred Saltwater Studio LLF v. NFAC (Delhi)(ITA No. 13/Mum/2023 dt. 22-5-2023, Jain Marketing & Associates v. DCIT (2024) 162 taxmann.com 439 (Delhi)(Trib.) (AY. 2019 -20)( ITA No. 4134/M/2023 dt 15-10-2024)
Manish Manohardas v. ITO (IT) (Mum.)(Trib.) www.itatonline.org
(Coram : Hon’ble Shri Narender Kumar Choudhry, JM and Hon’ble Shri Gagan Goyal, AM)