By C. N. Vaze
Shailesh Kamdar
Jagdish T. Punjabi
Bhadresh Doshi
Chartered Accountants
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Part A: Reported Decisions
13 (2010) 36 DTR (Agra) (Trib.) 453
ITO v. Chhail Behari
A.Y. : 2002-03 Dated : 15-10-2009
S. 271(1)(c) read with S. 271(1B) — The penalty was initiated
for filing inaccurate particulars of income, but it was levied for concealment
of income — If the satisfaction arrived at during the assessment proceedings was
for one reason, penalty cannot be levied for another reason — Even after
retrospective insertion of S. 271(1B), the difference between the two limbs of
S. 271(1)(c) is not erased and still remains.
Facts :
The Tribunal in appeal against the order levying penalty
u/s.271(1)(c) held that there was no proper satisfaction arrived at as required
u/s.271(1)(c) of the Act. It was held that the satisfaction was qua ‘furnishing
inaccurate particulars of income’ as recorded in the assessment order, but in
the order levying penalty u/s.271(1)(c), the same was qua ‘concealment of
particulars of income’. Hence, the penalty was
deleted.
The Revenue filed a miscellaneous application and contended
that by the Finance Act, 2008, an amendment has been made retrospectively w.e.f.
1st April, 1989 to provide that where an assessment order contains a direction
for initiation of penalty proceedings, such an order of assessment shall be
deemed to constitute satisfaction of the Assessing Officer for initiation of
penalty proceedings for concealment in respect of any amount added or disallowed
in computing the total income or loss of the assessee. Thus it can be said that
the mention by the Assessing Officer of direction for initiation of proceedings
u/s.271(1)(c) of the Act in the assessment order would cover both the actions of
the assessee i.e., ‘concealment of particulars of income’ as well as ‘furnishing
of inaccurate particulars of income.’
Held :
If the satisfaction arrived at during the assessment
proceedings was for one reason, penalty cannot be levied for another reason
relying upon the decision of the Supreme Court in the case of Dilip N. Shroff
(291 ITR 519) (SC). Thus the Tribunal had not cancelled the penalty on the
ground that there was no satisfaction recorded in the assessment order. Even
after retrospective amendment, since the difference between two limbs of S.
271(1)(c) is not erased or is considered as one, the distinction between
‘concealment of particulars of income’ and ‘furnishing of inaccurate particulars
of income’ is still maintained. Hence it cannot be said that there is any
mistake apparent on record.
