Asstt. CIT v. Gobind Ambady - Taxpublishers.in

SUBSCRIBE FOR FULL CONTENT


The Tax Publishers2012 TaxPub(DT) 0963 (Del-Trib) : (2012) 134 ITD 0576 : (2012) 148 TTJ 0356 : (2012) 075 DTR 0107 INCOME TAX ACT, 1961 --Penalty under section 271(1)(c)--LeviabilityErroneous deduction claim made by assessee--In the return filed for the relevant assessment year, assessee claimed deduction under section 80RRA. While framing assessment, assessing officer noted that the said deduction was admissible upto assessment year 2004-05 and not thereafter. He, accordingly, denied the deduction and also levied penalty under section 271(1)(c) for making false claim. Assessee contended that assessing officer did not detect the wrong claim till the case was discussed and closed on 29-5-2009 and the claim based on advice of CA was withdrawn by assessee himself after realising the mistake. Held: The proceedings were not closed on 28-5-2009 as the case was adjourned upto 1-6-2009. On this date, the claim was withdrawn after detection as mentioned in the order which had been duly signed by the representative of assessee. Further, assessee had not made such claim in preceding years. Therefore, it was concluded that claim was made after due deliberation and hence, penalty was rightly levied. Income Tax Act, 1961, Section 271(1)(c) IN THE ITAT DELHI 'C' BENCH C.L. SETHI, J.M. & K.G. BANSAL, A.M. Asstt. CIT v. Gobind Ambady ITA No. 3765 (Del) of 2011 A.Y. 2007-08 25 October, 2011 Appellant by : Salil Mishra, Respondent by : I.M. Sansi, ORDER *K.G. Bansal, A.M.* The only ground taken in this appeal filed by the revenue is that the learned Commissioner (Appeals) erred in deleting the penalty of Rs. 4,42,723 levied by the assessing officer under section 271(1)(c) of the Income Tax Act, 1961 (the Act for short). 2. The facts of the case are that the assessee had filed his return on 31-7-2007 declaring total income of Rs. 1,56,03,240. The assessment under section 143(3) was completed on 10-6-2009 at total income of Rs. 1,81,19,750. In this assessment, the claim of the assessee for deduction of Rs. 18,25,166 under section 80RRA of the Act was denied. It is mentioned that this deduction was claimed from consultancy fees of Rs. 1,21,67,777 received from Geneva. Such deduction is not admissible for this year as the provision was deleted with effect from 01-4-2005. In other words, the deduction was admissible for and up to assessment year 2004-05 and not thereafter. This part of the order has been accepted by the assessee. Penalty proceedings were also initiated under section 271(1)(c) of the Act. It was submitted that the assessment proceedings were completed on 29-5-2009 by the assessing officer without detecting that the claim was not admissible. The counsel of the assessee realized that the claim was erroneously made. Therefore, he returned to the office on that date, 29-5-2009, with the written submissions. However, he was asked to come to the office on 01-6-2009. The submissions were taken on record on this date. In other words, it was submitted that the claim had been withdrawn before the non-admissibility was detected by the assessing officer. These submissions were examined in the penalty order, it is mentioned that there is no dispute that the claim of the assessee is erroneous. The claim was not withdrawn by filing any revised return, which could have been filed up to 31-3-2009. It was also submitted that the claim was made under the wrong guidance of the tax advisor. However, reliance was placed on the decision in the case of CIT v. Escorts Finance Ltd. (2010)) 328 ITR 44 (Del) : 2010 TaxPub(DT) 733 (Del-HC) to come to the conclusion that the assessee cannot take shelter behind the guidance of the chartered accountant. Therefore, the penalty was levied. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2012 TaxPub(DT) 0963 (Del-Trib) : (2012) 134 ITD 0576 : (2012) 148 TTJ 0356 : (2012) 075 DTR 0107

INCOME TAX ACT, 1961

--Penalty under section 271(1)(c)--LeviabilityErroneous deduction claim made by assessee--In the return filed for the relevant assessment year, assessee claimed deduction under section 80RRA. While framing assessment, assessing officer noted that the said deduction was admissible upto assessment year 2004-05 and not thereafter. He, accordingly, denied the deduction and also levied penalty under section 271(1)(c) for making false claim. Assessee contended that assessing officer did not detect the wrong claim till the case was discussed and closed on 29-5-2009 and the claim based on advice of CA was withdrawn by assessee himself after realising the mistake. Held: The proceedings were not closed on 28-5-2009 as the case was adjourned upto 1-6-2009. On this date, the claim was withdrawn after detection as mentioned in the order which had been duly signed by the representative of assessee. Further, assessee had not made such claim in preceding years. Therefore, it was concluded that claim was made after due deliberation and hence, penalty was rightly levied.

Income Tax Act, 1961, Section 271(1)(c)

IN THE ITAT DELHI 'C' BENCH

C.L. SETHI, J.M. & K.G. BANSAL, A.M.

Asstt. CIT v. Gobind Ambady

ITA No. 3765 (Del) of 2011

A.Y. 2007-08

25 October, 2011

Appellant by : Salil Mishra,

Respondent by : I.M. Sansi,

ORDER

K.G. Bansal, A.M.

The only ground taken in this appeal filed by the revenue is that the learned Commissioner (Appeals) erred in deleting the penalty of Rs. 4,42,723 levied by the assessing officer under section 271(1)(c) of the Income Tax Act, 1961 (the Act for short).

2. The facts of the case are that the assessee had filed his return on 31-7-2007 declaring total income of Rs. 1,56,03,240. The assessment under section 143(3) was completed on 10-6-2009 at total income of Rs. 1,81,19,750. In this assessment, the claim of the assessee for deduction of Rs. 18,25,166 under section 80RRA of the Act was denied. It is mentioned that this deduction was claimed from consultancy fees of Rs. 1,21,67,777 received from Geneva. Such deduction is not admissible for this year as the provision was deleted with effect from 01-4-2005. In other words, the deduction was admissible for and up to assessment year 2004-05 and not thereafter. This part of the order has been accepted by the assessee. Penalty proceedings were also initiated under section 271(1)(c) of the Act. It was submitted that the assessment proceedings were completed on 29-5-2009 by the assessing officer without detecting that the claim was not admissible. The counsel of the assessee realized that the claim was erroneously made. Therefore, he returned to the office on that date, 29-5-2009, with the written submissions. However, he was asked to come to the office on 01-6-2009. The submissions were taken on record on this date. In other words, it was submitted that the claim had been withdrawn before the non-admissibility was detected by the assessing officer. These submissions were examined in the penalty order, it is mentioned that there is no dispute that the claim of the assessee is erroneous. The claim was not withdrawn by filing any revised return, which could have been filed up to 31-3-2009. It was also submitted that the claim was made under the wrong guidance of the tax advisor. However, reliance was placed on the decision in the case of CIT v. Escorts Finance Ltd. (2010)) 328 ITR 44 (Del) : 2010 TaxPub(DT) 733 (Del-HC) to come to the conclusion that the assessee cannot take shelter behind the guidance of the chartered accountant. Therefore, the penalty was levied.