Mihir Naniwadekar Advocate. Penalties: S. 271(1)(c), S. 271AAA, s. 271AAB

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1 Mihir Naniwadekar Advocate Penalties: S. 271(1)(c), S. 271AAA, s. 271AAB

2 Nature of Penalty Proceedings Relationship with Assessment Proceedings: Not a continuation of assessment proceedings Jain Bros v. CIT 77 ITR 107 (SC) Findings in Assessment Proceedings are not conclusive Bhagirath Bilgaiya v. CIT 139 ITR 902; CIT v. Anwar Ali 76 ITR 696 (SC). Penalty cannot be levied solely on the basis of reasons given in assessment order. It may be possible to rely on the findings in the assessment order, but assessee must be given a reasonable opportunity to show that the finding in the assessment is erroneous. Assessee is entitled to place reliance on additional/fresh materials CIT v. Khoday Eswarsa 83 ITR 369.

3 Nature of Penalty Proceedings Penalty & Tax : Conceptual Difference - Tax, penalty and interest are different concepts. The definition of tax u/s 2(43) does not include penalty Harshad Mehta v. Custodian 231 ITR Some exceptions where penalty treated as tax : s. 179 makes directors, in certain cases, jointly and severally liable for payment of tax. The Bombay High Court held in Dinesh T. Tailor 326 ITR 85 that directors cannot be made liable in respect of penalty. Explanation to s. 179 inserted to nullify this ruling by Finance Act, 2013.

4 Concealment and Inaccurate Particulars From Dharmendra to Reliance Petro and beyond Wrong claims versus false claims Retrospective Amendments No Ground for Penalty No Penalty if Appeal Admitted by High Court? Different test for claims which are not even prima facie arguable? Scope of the Explanation

5 Effect of Dharmendra Textile Processors 306 ITR 277: Dilip Shroff s case (291 ITR 519) not fully overruled Kanbay Software 122 TTJ (Pune) 721: 3 types of situations; result would be same in two of those whether before or after Dharmendra; only in one situation would the result change

6 The judgement in UOI vs. Dharmendra Textile Processors has to be understood in the correct perspective. It does not make a radical change in the law nor does it affect the basic scheme of s. 271 (1) (c). Even in K P Madhusudanan vs. CIT 251 ITR 99, the assessee s plea to the effect that revenue was required to prove mens rea of a criminal offence before penalty u/s 271(1)(c) can be imposed was rejected. Penalty u/s 271 (1) (c) has been held to be civil liability in contradistinction to prosecution u/s 276C. It is wrong to infer that because the liability is a civil liability, it ceases to be penal in character

7 There can be three distinct mutually exclusive situations in case of an addition to income: (a) Where the addition is on account of contumacious conduct of the assessee and mens rea is established; (b) Where it can neither be established that the addition is on account of contumacious conduct of the assessee nor is it established that the assessee s conduct and explanation is bonafide; (c) Where it is established that the assessee s conduct and explanation is bonafide. In situation (a), penalty was always leviable. In situation (c), penalty was never leviable. In situation (b), under Dilip Shroff, penalty would not have been leviable since the onus of establishing mens rea could not have been discharged by the AO. However, pursuant to Dharmendra Textile penalty in such a case will be leviable since it is not necessary for the AO to establish mens rea.that is the area in which legal position has changed

8 The expression concealment of income implies that an income is being hidden, camouflaged or covered up so as it cannot be seen, found, observed or discovered. The expression furnishing of inaccurate particulars of income implies furnishing of details or information about income which are not in conformity with the facts or truth. It does not extend to subjective areas such as the taxability of income, admissibility of a deduction and interpretation of law. The making of an incorrect claim does not amount to furnishing inaccurate particulars

9 The deeming fiction of Expl. 1 to s. 271 (1) (c) applies only with respect to facts material to the computation of income and not with the computation per se. The fiction does not apply where the controversy is regarding the legality of the claim made by the assessee. Further, when the assessee offers an explanation in discharge of the onus cast upon him by Expl. 1 to s. 271(1)(c), the AO must consider the explanation objectively and unless he finds the same against the human probabilities or unless there are any real inconsistencies or factual errors in such an explanation, the AO ought to accept the same. The assessee cannot be expected to prove the claim of bona fides to the hilt

10 Subsequently, Supreme Court has clarified the position in Reliance Petroproducts 322 ITR 158 As regards the furnishing of inaccurate particulars, no information given in the Return was found to be incorrect or inaccurate. The words inaccurate particulars mean that the details supplied in the Return are not accurate, not exact or correct, not according to truth or erroneous. In the absence of a finding by the AO that any details supplied by the assessee in its Return were found to be incorrect or erroneous or false, there would be no question of inviting penalty u/s 271(1)(c) By no stretch of imagination can the making of an incorrect claim in law tantamount to furnishing inaccurate particulars. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee

11 Retrospective amendments are not a basis for imposing penalty: an assessee cannot be imputed with clairvoyance CIT v. Hindustan Electro Graphites 243 ITR 48 (SC); CIT v. Yahoo India (Bombay HC: No penalty on the basis of retrospective s. 9 amendments) No penalty where issue in quantum proceedings is admitted by High Court:CIT v. Nayan Builders (Mumbai ITAT: subsequently confirmed by Bombay High Court) No penalty where addition is on account of change in head: Bennett Coleman (Bombay High Court)

12 Whether penalty can be made for statutory disallowances? Disallowance u/s 40A(2): penalty cannot be imposed: Jhavar Properties 123 ITR 429 Disallowance u/s 40(a)(ia): section 40(a) is deeming provision which creates legal fiction and that legal fiction cannot be extended beyond the disallowance of expenditure. Thus, it cannot be applied for invoking the provisions of section 271(1)( c ) Interglobe Services v. DIT ITA 7801/Mum/2014 decided on In the context of s. 50C, the issue is left open by Bombay High Court. ITAT order cancelling penalty was confirmed on the facts of the case while leaving the larger question of law open: CIT v. Fortune Hotels ITXA 1164/2012

13 Aditya Birla Nova (Bombay High Court): Primary facts disclosed; penalty cannot be sustained (Court does not examine whether prima facie case in quantum is made out) HCIL Kalindee (Delhi High Court): Penalty can be imposed if claim is farcical, fanciful or far-fetched. Also see Zoom Communications 327 ITR 510. Assessees should not be encouraged to take a chance that return will escape scrutiny. Price Waterhouse Coopers case 348 ITR 308 (Supreme Court): Disclosure made in tax audit report; error termed as inadvertent error ; absence of due care does not mean that penalty is to be levied.

14 Buying Peace of Mind? Shadilal Sugar 168 ITR 705; expressly followed by Madhya Pradesh High Court in Suresh Chandra Mittal 241 ITR 124 MP decision in Mittal affirmed by SC by bench of 3 Judges 251 ITR 9. Substantive affirmation, and not merely an in limine dismissal of an SLP. However, same Bench of 3 Judges then proceeded only a short duration later to overrule Shadilal Sugar in K.P. Madhusudhanan 251 ITR 99. MAK Data (Supreme Court) on facts was not a voluntary disclosure. Held that buying peace of mind is not a formula to avoid penalty: each case must be tested on its facts, as to whether the disclosure is bona fide.

15 Penalty in Search Cases Explanation 5 / 5A The Abatement controversy: penalty with reference to which return?

16 s. 271AAA and s. 271AAB Applicability of Explanation 5/5A to s. 271(1)(c), s. 271AAA or s. 271AAB depends on date of search Consistent trend to strengthen penalty provision and narrow the immunity? Memorandum explaining provisions of Finance Act 2012: S. 271AAB inserted in order to strengthen the penalty provisions

17 s. 271AAA and s. 271AAB S. 271AAA(2) grants immunity from penalty if (i) in the s. 132(4) statement, the undisclosed income is admitted and the manner of deriving it is specified; (ii) the manner in which the undisclosed income was derived is substantiated; and (iii) the tax & interest on the undisclosed income is paid. While payment of taxes & interest is a condition precedent for availing immunity u/s 271AAA(2), there is no time limit for such payment though in the context of Explanation 5 to s. 271(1)(c) it has been held in Mahendra Shah 299 ITR 305 (Guj) that the conclusion of the assessment proceedings is the outer limit for making payment of tax & interest, that was in the context of s. 271(1)(c) As there is no such requirement in s. 271 AAA, there is no outer limit for payment of the due tax & interest. DCIT v. Pioneer Marbles (ITAT Kolkata) Changes are made in the scheme u/s 271AAB

18 THANK YOU Mihir Naniwadekar December 4, 2014