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Sec. 271(1)(c) of Income Tax Act, 1961— Penalty — No penalty is leviable in such case where there is no even an iota of evidence to suggest that mistake was with the consent and knowledge would be treated as a deliberate act.
Facts: Ground raised by assessee is that CIT(A) erred in upholding the order of AO passed under section 271 (1)(c). ESOP income of Rs. 9, 48, 230 /- is a non-cash income, which has been depicted in 26 AS and was not mentioned in salary certificate issued by the employer. However, TDS @ 30% were deducted on that ESOP. Assessee has not concealed any income as it has been depicted in 26 AS bearing a TDS at higher rate of 30 % and hence no question of concealment prevails. Assessee has declared all incomes which come to our knowledge. Assessee has changed three jobs during the job period, all tax has been deducted at source. Assessee continuously used to reside outside during the course of job. Assessee filed his return of income through consultants on the basis of Form 16 and TDS and without the knowledge of ESOP and some differences of salary in reconciliation of salary slips on which TDS already deducted because he was on outstation job. Assessee has no intension of concealment of tax and has paid all the tax dues suo- moto as a responsible citizen.
Held, that assessee has been out of India and has been receiving salary from three different employers and the returns have been prepared by a consultant. TDS on the salary has been already deducted and deposited to the department. Further, the ESOP amount is a non-cash transaction and on which the TDS has also been deducted and the Form 26 AS has clearly shown the TDS deducted. Keeping in view, the facts of the case that the assessee has been in different jobs and out of India, the returns have been prepared by a consultant, the explanation of the assessee could fairly substantiate that such explanation is bonafide and material relevant to the computation of the total income have been disclosed by him. The Hon’ble Madras High Court in the case of Pitambar Das Dulichand 273 ITR 271 held that no penalty is leviable in such case where there is no even an iota of evidence to suggest that the mistake was with the consent and knowledge would be treated as a deliberate act. We find that the Hon’ ble High Court has held that in the absence of any such deliberate act on the part of the assessee, no penalty u/s 271(1)(c) is leviable. Similarly, the Hon’ ble High Curt of Andhra Pradesh in the case of CIT Vs Sania Mirza in ITA No. 526 /2011 held that an error committed by the assessee does not necessarily attract the penalty proceedings if that error was accepted and the amount was surrendered to tax. Since, there was no intention of the assessee to conceal the income, respectfully following the judgments of the Hon’ ble High Courts mentioned , we hereby direct that penalty levied be deleted. In the result, the appeal of the assessee is allowed. - SUSHIL KUMAR BHATI V/s ITO -  81 ITR (TRIB) 218 (ITAT-DELHI)