Black Money (Undisclosed Foreign Income and Assets ) and Imposition of Act , 2015 .
S. 43 : Penalty for failure to furnish return of income an information or furnish inaugurate particulars of an asset (Including financial interest in any entity) outside India- Asset was not disclosed in Schedule FA-Disclosed in Schedule Part A-85-Bonafide mistake-When there is no defiance of law or malafide or dishonest breach-Levy of penalty was not justified-Penalty was cancelled.
Assessee is a domestic resident Co. It had invested in foreign entities in Panama. It disclosed the assets in its balance sheet and also in another schedule in the IT return. AO levied penalty u/s 43 of Black money Act as the asset was not disclosed in schedule FA which is for foreign assets. In appeal the Mumbai ITAT held that asset has been disclosed in balance sheet as well as schedule part A-85 of IT return but not in schedule FA. Under sec 43 of BMA act though the AO has discretion to levy penalty , but it should be done at the wisdom of authority Discretion should be judicious and should be reasonable and justifiable and be made to impart justice and if discretion against assessee then it has to be used cautiously and consciously . On facts of the assessee has disclosed the same in balance sheet as well as IT return and thus has indirectly complied with the law. Tribunal held that no doubt Schedule FA is for foreign assets to check economic offenders but it is specifically applicable whose accounts are not audited and if Audited, such books are not disclosed in IT return. In this case, there is no defiance of law or malafide or dishonest breach and thus rigour of sec 43 cannot be applied to it.
Held penalty u/s 43 not was held to be justifiable and cancelled (BMA 22/ M/23, dt. 30-8-2023)

Ocean Diving Centre Ltd. v. CIT(A) (Mum.)(Trib.) www.itatonline.Org
[Coram : Hon’ble Shri B R Baskaran, AM & Hon’ble Shri N. K. Choudhry, JM]