IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI RAJENDRA (ACCOUNTANT MEMBER)

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1 IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI RAJENDRA (ACCOUNTANT MEMBER) Assessment Year: Bennett Coleman & Co.Ltd., The Times of India Building, Dr. D.N.Road, Fort, Mumbai. PA No.AAACB 4373 Q (Appellant) Vs. ACIT 1(1), Aayakar Bhavan, M.K. Road, Mumbai. (Respondent) ACIT 1(1), Aayakar Bhavan, M.K. Road, Mumbai. (Appellant) Vs. Bennett Coleman & Co.Ltd., The Times of India Building, Dr. D.N.Road, Fort, Mumbai. PA No.AAACB 4373 Q (Respondent) Date of hearing: Date of pronouncement: Assessee by : Shri S. Venkatraman Revenue by: Shri M. Murali Per Bench: ORDER These are cross appeals filed by assessee and department against order dated of ld CIT(A)-I, Mumbai for the assessment year disputing confirmation/deletion of penalty levied by the AO u./s.271(1)(c) of the Act.

2 2 2. The assessee is a Limited Company and is engaged in the business of printing & publishing of newspapers and periodicals, guaranteeing and exports. 3. Firstly, we take up appeal of assessee being I.T.A. No.3710/M/ In ground Nos.1 to 3 of appeal, assessee has disputed the order of ld CIT(A) in confirming the penalty levied by the AO u/s.271(1)(c) of the Act in respect of interest of Rs.75,00,000 received on 6% Government of India-Capital Index Bonds. 5. The relevant facts are that assessee during the relevant assessment year purchased 6% Government of India-Capital Index Bonds. The assessee received interest of Rs.75,00,000 during the year thereon. Assessee claimed deduction of interest on tax free bonds of Rs.5,60,11,644 in its return filed. During the course of assessment proceedings, assessee was asked to give details of interest on tax free bonds. While preparing the said details, it was noticed by assessee that 6% Government of India-Capital Index Bonds purchased during the year had inadvertently been categorized as tax free bonds and, therefore, interest of Rs.75,00,000 earned on such bonds had also inadvertently escaped tax. The assessee requested the AO to include Rs.75 lakhs as taxable interest and corrected the figure of interest of tax free bonds amounting to Rs.4,85,11,644. In view of above, AO initiated penalty proceedings u/s.271(1)(c) of the Act. 6. On behalf of assessee, it was contended that said interest income was voluntarily offered to tax and the claim had not been detected or unearthed during the course of assessment proceedings to say that there had been concealment or non disclosure of information since mistake was not discovered by the AO but the assessee on becoming aware of the mistake himself offered the same for tax. There was no intention of the assessee to conceal the facts or furnish inaccurate particulars of income for avoidance of tax and the mistake was due to only clerical error. The AO did not accept the said contention of the assessee and stated that assessee had deliberately claimed interest of Rs.75 lakhs as tax free interest and not offered the same for taxation by hiding the merits and the bonafides of the case. The AO stated that had the AO not asked the

3 3 details of interest on tax free bonds, the assessee would not have come forward to offer the sum of Rs.75 lakhs for taxation. The AO stated that the claim of the assessee was non-bonafide in the return of income in order to reduce its taxable income and thereby filing inaccurate particulars of income and also concealed particulars of income. Accordingly, AO levied penalty under section 100% of tax sought to be evaded on the above amount. Being aggrieved, assessee filed appeal before ld CIT(A). 7. Ld CIT(A)confirmed the action of AO. Hence, assessee is in appeal before us. 8. During the course of hearing, ld A.R. referred page 12 of PB, which is copy of computation of income for the financial year ending on relating to assessment year and submitted that assessee stated interest on tax free bonds of Rs.5,60,11,644 including interest of Rs.75 lakhs on 6% Government of India-Capital Index Bonds. He submitted that it was noticed during the course of assessment proceedings that interest on said bonds were not tax free and offered voluntarily said interest for taxation. He further submitted that in the balance sheet, investment was disclosed correctly and the mistake had occurred inadvertently in the computation of income. Ld A.R. submitted that no penalty can be imposed if there is inadvertent mistake and amount is offered voluntarily for taxation during the course of assessment proceedings because it does not amount to concealment of income or furnishing wrong particulars of income. He submitted that penalty levied is not justified. 9. On the other hand, ld D.R. supported the order of authorities below and submitted that said interest income was disclosed by the assessee only after a query was made by the AO during assessment proceedings. He submitted that assessee accepted the mistake and offered interest for taxation. Therefore, assessee filed wrong particulars of income. He submitted that investment made by the assessee on 6% Government of India-Capital Index Bonds is not disputed and only the income generated was claimed as tax free, which is inaccurate and, therefore, levy of penalty is in order. 10. We have carefully considered orders of authorities below and submissions of ld representatives of parties. We observe that assessee has disclosed in the balance sheet purchase of 6% Government of India-Capital Index Bonds in the assessment year under

4 4 consideration. There is no dispute that assessee received interest of Rs.75 lakhs included the said interest under the heading interest on tax free bonds in computation of income. We observe on perusal of computation of income placed at page 12 of PB that assessee has stated interest on tax free bonds Rs.5,60,11,644 and breakup of is given by way of a Note at Sl.No.-15 forming part of computation of income alongwith Annexure- P at page 15 of PB. In the said Annexure-P, assessee at Sl.No.34 thereof mentioned 6% Government of India-Capital Index Bond -2002, interest of Rs.75 lakhs. In Annexure-P, assessee has given heading statement of interest on tax free bonds. During the course of assessment proceedings, when AO raised a query, assessee stated that in the said statement of interest on tax free bonds, it included interest of Rs.75 lakhs inadvertently and interest was not on tax free bonds and offered the said amount to tax. Accordingly, assessment was completed by the AO The penalty u/s.271(1)(c) is only a civil liability to compensate for loss of revenue as held by Hon ble Supreme Court in the case of Dharmendra Textiles Processors & Ors, vs Union of India, 306 ITR 277(SC). Hon ble apex Court in the said case have held that nexus of willful concealment is not required to be proved by the revenue. Thus, the case of penalty is to be evaluated under the provisions of Explanation 1 to Section 271(1)(c) of the Act, as per which, in case, in respect of additions, the assessee offers explanation, which he is able to substantiate and is also able to prove that the explanation is bonafide and all necessary details in relation to the claim have been given, penalty is not leviable. In the case before us, we observe that assessee has not concealed any facts of making the investment in purchase of 6% Govt. of India-Capital Index Bonds nor there is any concealment of receipt of interest thereon of Rs.75 lakhs. There is also no dispute to the fact that assessee is holding tax free bonds and received interest in the assessment year under consideration thereon which are not chargeable to tax. We find justifiably explanation on the part of the assessee that while computing the total income on the bonds received, the assessee included the interest received of 6% Govt. of India-Capital Index Bonds in the statement of the interest received on tax free bonds. We find that when a query was raised by the AO during the course of assessment proceedings, assessee offered the said amount of Rs.75 lakhs to tax and stated that there was an inadvertent mistake while considering the interest on bonds and the said interest was included in the statement of tax free

5 5 bonds. We agree that there were no facts which the assessee hide or omitted to mention in respect of investment as well as receipt of interest. Therefore, on consideration of the facts of the case, we are of the considered view that it could not be said that there was a desire on the part of the assessee to hide or conceal the income so as to avoid to pay tax of interest on the bonds and considering the decision of Hon ble apex Court in the case of K.C. Builders vs. ACIT, 265 ITR562, we cancel penalty levied by authorities below on the said amount of Rs.75 lakhs by allowing ground No.1 to 3 of appeal taken by assesee. 11. In Ground Nos.4 to 8, assessee has disputed the order of ld CIT(A) in confirming penalty elvied u/s.271(1)(c) on receipt of premium on redemption of debentures of Rs.2,37,60, The relevant facts in this regard are that assessee claimed premium on redemption of debentures of Rs.2,37,60,000 as income from capital gain. During the course of assessment proceedings, AO held that the premium received by the assessee on redemption of debentures is nothing but an addition to the rate of interest or is a payment in lieu of the rate of interest being received on the investment made in the debentures. Accordingly, said premium was held to be revenue receipt and assessed to tax under the head income from other sources. The assessee agitated the said assessment order before ld CIT(A)and action of AO was confirmed. No further appeal was filed before the Tribunal on said issue. In view thereof, the AO initiated penalty proceedings u/s.271(1)(c) of the Act. The AO stated that assessee has made the claim of premium on redemption of debentures as income from capital gain by hiding the merits and the bonafides of the case. The claim of the assessee was non-bonafide in order to reduce its taxable income thereby assessee filed inaccurate particulars of income and also concealed the particulars of its income. The AO levied 100% of tax sought to be evaded thereon, which works out to Rs.35,64,000. Being aggrieved, assessee filed appeal before ld CIT(A). 13. Ld CIT(A) confirmed the action of AO. He has stated that the tax rate chargeable under the head LTCG is lower than the tax rate applicable in the case of income tax under the head income from other sources. Therefore, AO was justified in

6 6 his action to levy penalty u/s.271(1)(c) of the Act. Hence, assessee is in appeal before the Tribunal. 14. During the course of hearing, ld A.R. referred pages 11 & 12 of PB, which is copy of computation of income and submitted that assessee reduced the premium received on debentures from business income and included it as capital gain with a Note in the computation of income, which is placed at page 16 of PB. He submitted that the claim of the assessee is bonafide and all the relevant facts were disclosed by the assessee in its computation. However, AO took a view that the said receipt of premium on redemption of debentures is not capital gain but taxable under the head income from other sources. He submitted that it is only a legal contention as to whether the said amount is taxable as capital gain or income from other sources. Ld A.R. relying on the decisions of Hon ble Delhi High Court in the case of CIT vs. Auric Investment and Securities Ltd,310 ITR 121 and CIT vs. Commissioner of Income-tax v. Bhartesh Jain, 323 ITR 358 submitted that if the addition is made by change of head, it does not amount to concealment of income and, accordingly, it could not be the basis for imposition of penalty u/s.271(1) of the Act. 15. On the other hand, ld D.R. supported the orders of authorities below and submitted that assessee wrongly claimed that premium received on redemption of debentures is capital gain. He submitted that the rate of tax payable on capital gain is less as compared to rate of tax if the income is assessed as income from other sources. Therefore, assessee has furnished wrong particulars of facts with an intention to pay lower tax. Hence, levy of penalty is justified. 16. We have considered submissions of ld representatives of parties and orders of authorities below. We have also perused the relevant pages i.e. pages 11 & 12 of PB, which is computation of income of the assessee alongwith Note-11 at page 16 forming part of computation of income and also considered the cases cited before us (supra). There is no dispute to the fact that assessee has duly disclosed the amount of premium received on redemption of debentures in the computation of income. The assessee has reduced premium from the business income in the computation of income and

7 7 considered it as capital gain alongwith Note which is forming part of computation of income. The said note No.11 at page 16 reads as under: The company received premium of Rs.2,37,60,000 on redemption of debentures of Times Guarantee Ltd during the year. This has been shown as long term capital gains because these were received for the transfer of the asset. It is therefore the Company s claim that this is taxable as capital gain. 17. However, the authorities below in the assessment proceedings held that the receipt is income from other sources. Therefore, the dispute was only in respect of head under which the said amount is to be assessed. It is not the case where the assessee has omitted to state the relevant facts or furnished wrong particulars of facts. No facts have also been brought on record by the department that the claim of the assessee was not bonafide. Similar issue has been considered by Hon ble Delhi High Court in the case of CIT vs. Auric Investment and Securities Ltd (supra), wherein, assessee filed return and adjusted loss of share trading against normal income. During the course of assessment proceedings, the Assessing Officer found that the loss claimed by the assessee was speculative in nature to be adjusted against speculative income only and as the income was assessed at a loss, the loss shown by the assessee could not be adjusted. In view of above, AO initiated penalty proceedings u/s.271(1)(c) of the Act. Ld CIT(A) canceled the penalty which was upheld by the Tribunal. The department filed appeal before Hon ble Delhi High Court. The Hon ble High Court dismissed the appeal of the department and held that there was nothing on record to show that in furnishing return of income, assessee has concealed its income or has furnished inaccurate particulars of income. The mere treatment of the business loss as speculation loss by the Assessing Officer did not automatically warrant the inference of concealment of income. It was held that the cancellation of penalty was valid. Similarly, in the case of Bhartesh Jain (supra), it was also held that deletion of the penalty by the Tribunal on the ground of mere change of treatment of loss does not amount to concealment of income and penalty u/s. 271(1)(c) is not warranted. In the case before us also, it is not the case of the department that assessee has concealed any particulars of income or furnished wrong particulars of income by stating incorrect fact. The AO on the basis of facts only changed the head of income under which the receipt of premium on redemption of debentures is to be assessed. The assessee considered the said premium

8 8 as capital gain. The department assessed the income under the head income from other sources. In view of the fact that there is only a change of head of income and in the absence of any facts that the claim of the assessee was not bonafide, we hold that levy of penalty u/s.271(1)(c) is not justified. Hence, we allow ground Nos.4 to 8 of appeal of the assessee. 18. Now we take up appeal by department being I.T.A. No.4979/M/ Ground raised by department reads as under: Whether on the facts and circumstances of the case and in law, ld CIT(A) erred in deleting the penalty levied u/s.271(1)(c) in respect of disallowance of repair expenses treated as capital expenditure amounting to Rs.15,80,169 in the light of decision of CIT(A) & ITAT in quantum appeal sustaining the additions. 20. The relevant facts are that during the course of assessment proceedings, AO disallowed a sum of Rs.33,25,336 out of building repairs and furniture and fixture repairs on the ground that these are capital expenditure. The assessee filed appeal before ld CIT(A) and ld CIT(A) confirmed the addition to the extent of Rs.15,80,169. The Tribunal also confirmed the action of AO. In view thereof, AO initiated penalty proceedings on account of addition of Rs.15,80,169 sustained finally in the assessment proceedings and stated that assessee furnished inaccurate particulars of income leading to concealment of income on this issue. The AO has stated that assessee made a nonboanfide claim in order to reduce its taxable income and, accordingly, levied 100% of tax sought to be evaded thereon. Being aggrieved, assessee filed appeal before ld CIT(A). Ld CIT(A) after considering submissions of assessee as well as assessment order held that there is a thin line of difference between revenue and the capital expenditure. He has further stated that after considering nature of expenditure detailed in the assessment order, two views are possible. He has stated that on going through the nature of expenditure incurred, it would also be revenue expenditure. Ld CIT(A) relying on the decision of Hon ble apex Court in the case of CIT vs.reliance

9 9 Petroproducts Pvt Ltd., 322 ITR 158 (SC) held that a bonafide claim even if disallowed cannot form the basis for levy of penalty and, accordingly, cancelled the penalty levied by AO u/s.271(1)(c) of the Act on the disallowance of repair expenditure of Rs.15,80,169 as capital expenditure. Hence, department is in appeal before the Tribunal. 21. During the course of hearing, ld D.R. relied on the order of AO and whereas ld A.R. relied on the order of ld CIT(A). 22. We have considered submissions of ld representatives of parties and orders of authorities below. We agree with ld CIT(A) that mere disallowance of claim of the assessee does not give a basis for levy of penalty u/s.271(1)(c) of the Act. It is not the case of the department that assessee has claimed the said expenditure only to avoid tax. We observe that assessee placed all relevant facts in the return filed and made its claim bonafide as revenue expenditure. Nothing is available on record to show that belief of the assessee and the explanations of the assessee were false and inherently impossible. Even an erroneous claim for deduction cannot warrant penalty unless and until it is proved that claim is made with dishonest intention as observed by the Tribunal in assessee s own case for A.Y vide order dated in I.T.A. No.1189/M/2009 and also by the Hob ble Apex Court in the case of Reliance Petroproducts Pvt Ltd. (supra). Therefore, we hold that ld CIT(A) has rightly deleted the penalty levied by AO u/s.271(1)(c) of the Act on the said amount of Rs.15,80,169 which was claimed by the assessee as revenue expenditure but held it to be a capital expenditure. In this regard, we are also supported by the orders of Hon ble Delhi High Court in the case of Auric Investment and Securities Ltd and Bhartesh Jain (supra) that mere change of head of income does not warrant levy of penalty u/s.271(1)(c) of the Act as discussed hereinabove in para 17. Hence, we uphold the order of ld CIT(A) by rejecting ground of appeal taken by department.

10 In the result, appeal filed by assessee is allowed and whereas appeal filed by revenue is dismissed. Pronounced in the open court on 27 th July, 2012 Sd/- (RAJENDRA) Accountant Member Sd/- (B.R. MITTAL) Judicial Member Mumbai, Dated 27 th July, 2012 Parida Copy to: 1. The appellant 2. The respondent 3. Commissioner of Income Tax (Appeals),1, Mumbai 4. Commissioner of Income Tax, 1, Mumbai 5. Departmental Representative, Bench B Mumbai //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI

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