Allahabad H.C : Whether the Tribunal was justified in confirming the view taken by the CIT(A) holding that sub-cl. (a) of Expln. 4 appended to s. 271(1)(c) of the IT Act, 1961, was applicable only if there was a positive income of an assessee and not applicable where even as a result of the detection of concealment or furnishing of inaccurate particulars of income, loss shown by such assessee got reduced or waived off ?

High Court Of Allahabad

CIT vs. Zam Zam Tanners

Section 271(1)(c), Expln. 4

Asst. Year 1985-86

R.K. Agrawal & Rajes Kumar, JJ.

IT Ref. No. 24 of 1995

11th July, 2005

Counsel Appeared :

R.K. Upadhyaya, for the Applicant : S.D. Singh, for the Respondent

JUDGMENT

Rajes Kumar, J. :

The Tribunal has referred the following question under s. 256(2) of the IT Act (hereinafter referred to as “Act”) relating to the asst. yr. 1985-86 for opinion to this Court : “Whether the Tribunal was justified in confirming the view taken by the CIT(A) holding that sub-cl. (a) of Expln. 4 appended to s. 271(1)(c) of the IT Act, 1961, was applicable only if there was a positive income of an assessee and not applicable where even as a result of the detection of concealment or furnishing of inaccurate particulars of income, loss shown by such assessee got reduced or waived off ?”

2. The brief facts of the case are as follows. The assessee-opposite party (hereinafter referred to as the “assessee”) is a registered firm deriving income from business of tanning raw hides. The assessee had filed a return of income showing a profit of Rs. 3,57,454 but subsequently the same had been revised to Rs. 5,01,579. After allowing deductions under s. 80HHC, even the revised return filed was at nil income. The assessing authority has also assessed the assessee at a nil income. Despite that the AO initiated penalty proceedings, on the difference of income shown in the original return and in the subsequent revised return, the explanation of the assessee that there was no positive income even after the revised income and, thus, no penalty provisions were attracted, was not accepted and a penalty under s. 271(1)(c) was imposed. Against the penalty order, the assessee filed appeal before CIT (A), which was allowed, and the penalty was deleted. Revenue filed appeal before the Tribunal, which was rejected. The Tribunal held as follows : “We have heard the parties at length and we are of the opinion that there is no infirmity in the order of the learned CIT(A), Bombay Bench of the Tribunal in the case of 5 Star Galvanizers vs. Asstt. CIT (1990) 38 TTJ (Bom) 12 held that where the assessee was assessed at a loss even often the addition of concealed income provisions of s. 271(1)(c) were not attracted. Likewise again the Bombay Bench in the case of Mutual Plastics vs. ITO (1989) 35 TTJ (Bom) 467 : (1989) 80 CTR (Trib) 45 had held that the Expln. 4 (a) to s. 271(1)(c) deals with cases of positive income only and it does not specifically provide for levy of any penalty in case of assessed loss. Accordingly, in the said case, penalty imposed was deleted. Again Ahmedabad Bench in the case of H.T. Power Structures (P) Ltd. vs. Asstt. CIT (1993) 47 TTJ (Ahd) 146 : (1993) 45 ITD 571 (Ahd) had held that where the assessment had resulted in a loss, penalty under s. 271(1)(c) would not be leviable even on the basis of Expln. 4 to s. 271(1)(c) as inserted w.e.f. 1st April, 1976. Even Jaipur Bench in the case of Indo German Electricals vs. ITO (copy filed in the compilation) had held that where total income is assessed at a loss, no penalty under s. 271(1)(c) is leviable. Even the Hon’ble Allahabad High Court in the case of Indo-Gulf Fertilizers & Chemicals Corporation Ltd. vs. Union of India & Anr. (1992) 103 CTR (All) 25 had laid down a ratio that income means positive income and it does not mean a case of overall loss. No doubt it was a question of levy of additional income-tax under s. 143(1A), yet the point involved was the same as to whether even after certain additions the overall result was loss.

All the decisions mentioned above clearly lay down that the word “income” as defined in s. 2(24) means a positive income and it does not mean a loss. Hence, in a case where even after certain additions the overall picture is either nil income or of loss, it cannot be said that there was any mens rea on the part of the assessee to conceal any income and thereby no penalty provisions could be attracted. We, therefore, hold that the order passed by the learned CIT(A) was perfectly correct and justified and does not call for any interference.” Heard Shri R.K. Upadhyaya, learned standing counsel for the Revenue, and Sri S.D. Singh, learned counsel for the respondent- assessee.

Learned standing counsel submitted that in view of the Expln. 4 to s. 271(1)(c), it is the concealed income which is relevant for the purpose of levy of penalty and merely because, returned income was loss or of nil and the assessee was subjected to assessment at nil income, the assessee is not absolved from the penalty. In support of his contention, he relied upon the decision of the Karnataka High Court in the case of P.R. Basavappa & Sons vs. CIT (2000) 159 CTR (Kar) 198 : (2000) 243 ITR 776 (Kar).

5. Learned counsel for the assessee submitted that the word “income” in Expln. 4 to s. 271(1)(c) refers positive income and unless actual tax is found to be evaded, penalty should not be levied. In support of his contention, he relied upon the following decisions : CIT vs. Harprasad & Co. (P) Ltd. 1975 CTR (SC) 65 : (1975) 99 ITR 118 (SC) CIT vs. India Sea Foods (1976) 105 ITR 708 (Ker) CIT vs. Rowther Brothers (1979) 8 CTR (Ker) 68 : (1979) 119 ITR 353 (Ker) Samunder Bhan Sadh vs. CIT (1991) 98 CTR (All) 32 : (1991) 188 ITR 638 (All) CIT vs. Prithipal Singh & Co. (2001) 166 CTR (SC) 187 : (2001) 249 ITR 670 (SC) Henri Isidore vs. CIT (2001) 166 CTR (Mad) 161 : (1999) 240 ITR 247 (Mad).

6. We have heard the learned counsel for the parties and perused the order of the Tribunal. Sec. 271(1)(c) of the Act immediately prior to amendment by Taxation Laws (Amendment) Act, 1975, reads as follows : “(1) If the ITO or the AAC in the course of any proceedings under this Act, is satisfied that any person— (a) ……….. (b) …………. (c) has concealed the particulars of his income or furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty.— (i) ……….. (ii ……….. (iii) in the cases referred to in cl. (c) in addition to any tax payable by him, a sum which shall not exceed twice the amount of the income in respect of which the particulars have been concealed or inaccurate particulars have been furnished. Explanation : Where the total income returned by any person is less than eighty per cent of the total income (hereinafter in this Explanation referred to as the correct income) as assessed under s. 143 or s. 144 or s. 147 (reduced by the expenditure incurred bona fide by him for the purpose of making or earning any income included in the total income but which has been disallowed as a deduction), such person shall, unless he proves that the failure to return the correct income did not arise from any fraud or any gross or wilful neglect on his part, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income for the purposes of cl. (c) of this sub-section.”Sec. 271(1)(c) of the Act after the amendment by Taxation Laws (Amendment) Act, 1975, w.e.f. 1st April, 1976 reads as follows : “Sec. 271—Failure to furnish returns, comply with notices, concealment of income, etc.—(1) If the ITO or the AAC or the CIT(A) in the course of any proceedings under the Act is satisfied that any person— (c) has concealed the particulars of his income or furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty : (i) …….. (ii) ………. (iii) in the cases referred to in cl. (c) in addition to any tax payable by him, a sum which shall not be less than, but which shall not exceed (three times), the amount of tax sought to be evaded by reason of the concealment of particulars of his income or the furnishing of inaccurate particulars of such income. Explanation 4 : For the purposes of cl. (iii) of this sub-section, the expression “the amount of tax sought to be evaded”,— (a) in any case where the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished exceeds the total income assessed, means the tax that would have been chargeable on the income in respect of which particulars have been concealed or inaccurate particulars have been furnished had such income been the total income; (b) in any case to which Expln. 3 applies, means the tax on the total income assessed; (c) in any other case, means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished.” Sec. 271(1)(c) of the Act has been further amended by Finance Act, 2002, by which cl. (iii) and Expln. 4 has been modified. After the amendment section reads as follows : “(iii) in the cases referred to in cl. (c) in addition to any tax payable by him, a sum which shall not be less than, but which shall not exceed (three times), the amount of tax sought to be evaded by reason of the concealment of particulars of his income or the furnishing of inaccurate particulars of such income.

Explanation 4 : For the purpose of cl. (iii) of this sub-section, the expression “the amount of tax sought to be evaded”— (a) in any case where the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished has the effect of reducing the loss declared in the return or converting that loss into income, means the tax that would have been concealed or inaccurate particulars have been furnished had such income been the total income; (b) in any case to which Expln. 3 applies, means the tax on the total income assessed. (c) In any other case, means the difference between the tax on the total income assessed and the tax that would have been chargeable, had such total income been reduced by the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished.” Sec. 2(24) “Income” includes : (i) profits and gains; (ii) dividend; (iia) voluntary contributions received by a trust created wholly or partly for charitable or religious purposes or by an institution established wholly or partly for such purposes, not being contributions made with a specific direction that they shall form part of the corpus of the trust or institution. Explanation—For the purposes of this sub-clause, “trust” includes any other legal obligation; (iii) the value of any perquisite or profit in lieu of salary taxable under cls. (2) and (3) of s. 17; (iv) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by a person who has a substantial interest in the company, or by a relative of the director or such person, and any sum paid by any such company in respect of any obligation which, but for such payment, would have been payable by the director or other person aforesaid; (iva) the value of any benefit or perquisite, whether convertible into money or not, obtained by any representative assessee mentioned in cl. (iii) or cl. (iv) of sub-s. (1) of s. 160 or by any person on whose behalf or for whose benefit any income is receivable by the representative-assessee (such person being hereafter in this sub- clause referred to as the “beneficiary”) and any sum paid by the representative assessee in respect of anyobligation which, but for such payment, would have been payable by the beneficiary. (v) any sum chargeable to income tax under cls. (ii) and (iii) of s. 28 or s. 41 or s. 59; (va) the value of any benefit or perquisite taxable under cl. (iv) of s. 28; (vi) any capital gains chargeable under s. 45; (vii) the profits and gains of any business of insurance carried on by a mutual insurance company or by a co-operative society, computed in accordance with s. 44 or any surplus taken to be such profits and gains by virtue of provisions contained in the First Schedule;(viii) any annuity due, or commuted value of any annuity paid, under the provisions of s. 280D; (ix) any winnings from lotteries, crossword puzzles, races including horse races, card games and other games of any sort or from gambling or betting of any form or nature whatsoever;”

7. In the case of CIT vs. India Sea Foods (supra), the Division Bench of Kerala High Court held that the penalty under s. 271(1)(c) of the Act is leviable with reference to the amount of income in respect of which concealment of particulars or furnishing of false particulars had actually taken place, even if the total income assessed at Rs. 18,640 as against the concealment of income at Rs. 2,84,727. The Court has justified the levy of penalty on the concealed income of Rs. 2,84,727. Similar view has also been taken by the Kerala High Court in the case of CIT vs. Rowther Brothers (supra).

8. In the case of P.R. Basavappa & Sons vs. CIT (supra) the Division Bench of the Karnataka High Court on consideration of Expln. 4 to s. 271(1)(c) of the Act held that the income includes loss and since loss declared had been reduced, penalty under s. 271(1)(c) of the Act is imposable. The Division Bench of Karnataka High Court has distinguished the decision of Punjab & Haryana High Court in the case of CIT vs. Prithipal Singh & Co. (1990) 85 CTR (P&H) 26 : (1990) 183 ITR 69 (P&H) on the ground that the year involved in the said case was 1970-71, i.e., before the insertion of Expln. 4 to s. 271(1)(c) of the Act. The Karnataka High Court has also relied upon the decision of the Calcutta High Court in the case of Atul Kumar Deovrat & Co. vs. CIT (1987) 60 CTR (Cal) 131 : (1987) 168 ITR 286 (Cal) in which the Calcutta High Court has upheld the levy of penalty under s. 271(1)(c) of the Act in respect of the claim for loss on purchase and sale of shares which was not allowed in the assessment proceedings.

9. Similar view has also been taken by the Bombay High Court in the case of CIT vs. Chemiequip Ltd. vs. CIT (2003) 182 CTR (Bom) 144 : (2004) 265 ITR 265 (Bom), in which the decision of Punjab & Haryana High Court in the case of CIT vs. Prithipal Singh & Co. (supra) has been distinguished on the ground that it relates to the asst. yr. 1970-71, when the Expln. 4 was not there and the amendment made by the Finance Act, 2002, in cl. (iii) and Expln. 4 has been held clarificatory in nature. Bombay High Court has not, however, considered the decision of the apex Court in the case of CIT vs. Prithipal Singh & Co. (supra).

In the case of CIT vs. Prithipal Singh & Co. (supra), the Division Bench of Punjab & Haryana High Court on a consideration of the entire provisions of s. 271(1)(c) of the Act as it stood in the year 1970-71, held as follows : “Penalty is always imposed and paid in addition to the tax payable. When there is no tax payable, the question of any penalty does not arise. In fact, evasion of tax is the sine qua non for imposition of penalty. Clause (iii) deals with cases referred to in cl. (c) under sub-s. (1) of s. 271 of the Act and it clearly provides therein that the penalty or further sum payable by a person would be in addition to any tax payable by him. Explanations 3 and 4 annexed to the said provision of law also presuppose taxable income with regard to the assessment year in question. If there is no taxable income or tax assessed for payment during a particular year, the question of evasion and consequently penalty do not arise. As is obvious from Annex. “B”, the assessee was assessed finally to a loss figure amounting to Rs. 34,164 as pointed out at p. 33 of the record. Thus, there was no income and so the motive to avoid tax during the year in question is completely missing. May be, it may give a benefit to the assessee in the coming year as the loss could be carried forward but, by no stretch of imagination, can it be said that, during the assessment year in question, the assessee had concealed its income. “Income” has been defined in s. 2(24) of the Act, which clearly includes profits, gains, dividends or other benefits derived only. Loss cannot possibly be termed as income. Under s. 139(1) of the Act, a person is required to furnish a return only if his total income during the previous year exceeded the maximum amount, which is not chargeable to income-tax. If the same falls short of the maximum amount, which is not chargeable, which has been the case here as per final assessment, he need not file a return. A person who sustains a loss, however, may file a return in view of sub-s. (3) of s. 139 of the Act, if he wants to claim that the loss or any part thereof should be carried forward. “The penal provisions of s. 271(1)(c), therefore, are attracted only in the case of an assessee having positive income and not loss, as the question of concealment of income to avoid payment of tax would arise only in the former case.” Penalty is a different measure to prevent evasion of tax and when there was no tax payable, there could not be any such evasion so as to provide a scope for levying any penalty. In the present case, only the loss has been reduced and it cannot be said that the assessee had suppressed any income, which would have attracted liability to tax. The question of imposition of penalty, therefore, did not arise. Thus, on the facts and in the circumstances of the case, the Tribunal has acted rightly in law in holding that the provisions of the Explanation to s. 271(1)(c) will not be attracted to the present case. The word “income” occurring in cl. (c) and (iii) of s. 271(1) of the Act refers to positive income only, that no penalty could be levied against the assessee.” Special Leave Petition against the aforesaid decision of the Punjab & Haryana High Court has been dismissed by the apex Court on 20th July, 2000. The decision of the apex Court in CIT vs. Prithipal Singh & Co. (supra) is as follows :”We have heard learned counsel and find that, on the facts of this case, no interference is called for. Civil Appeal is dismissed. No order as to costs.”

10. In the case of CIT vs. N. Krishnan (1999) 153 CTR (Ker) 450 : (1999) 240 ITR 47 (Ker), the Division Bench of the Kerala High Court held as follows : “It is amply clear from perusal of s. 271(1)(c) that penalty could be determined with reference to the amount of tax and unless tax is determined penalty cannot be quantified. In the case of the assessee, the assessment having been made at loss, the question of determining the amount of tax did not arise and, therefore, no penalty could be determined. When the penalty cannot be quantified in absence of determination of tax, it goes without saying that no penalty can be imposed. Even if there were concealment, assessment having been made at loss, no penalty could be imposed.”

11. Punjab & Haryana High Court in the case of CIT vs. Varindra & Co. (2001) 171 CTR (P&H) 51, which related to the asst. yr. 1990-91 followed the earlier decision in the case of CIT vs. Prithipal Singh & Co. (supra) and has further held that the decision of the apex Court in the case of Prithipal Singh & Co. (supra) is also applicable to the asst. yr. 1990-91 and the penalty cannot be levied where the assessed income is loss.

12. It may be mentioned here that after the amendment in cl. (iii) and Expln. 4 to s. 271(1)(c) by the Finance Act, 2002, there is no manner of doubt that the penalty is leviable even in the cases where no tax is payable and income is assessed at a loss in respect of the concealed income. The question for consideration is whether by Expln. 4 to s. 271(1)(c) of the Act by the Taxation Laws (Amendment) Act, 1975, w.e.f. 1st April, 1976, there is any change in the position of law with regard to levy of penalty in case no tax was payable and the income assessed was loss and the decision of the Punjab & Haryana High Court in the case of CIT vs. Prithipal Singh & Co. (supra), which has been confirmed by the apex Court still hold good and the amendment by the Finance Act, 2002, w.e.f. 1st April, 2003 is only prospective and not retrospective and not applicable to the period prior to 1st April, 2003.

13. Clause (iii) as it existed prior to 1st April, 1976, says “he may direct that such person shall pay by way of penalty ‘in addition to any tax payable by him’, a sum which shall not exceed twice the amount of the income in respect of which the particulars have been concealed.”

14. We find that the words “in addition to any tax payable by him” in cl. (iii) also exist after the amendment by Taxation Laws (Amendment) Act, 1975. In the amended cl. (iii) further words “sum which shall not be less than but which shall not exceed three times the amount of tax sought to be evaded by reason of concealment of his income or furnishing of inaccurate particulars of such income” are added. Therefore, in cl. (iii) both prior to the amendment and after the amendment the words “in addition to any tax payable by him” are available. The word “income” used in cl. (iii) has been interpreted by the Punjab & Haryana High Court in the case of CIT vs. Prithipal Singh & Co. (supra) as the positive income and not loss, as the question of concealment of income to avoid payment of tax arise only in positive income. This view of the Punjab & Haryana High Court has been upheld by the apex Court in the case of Prithipal Singh & Co. (supra) and, therefore, the decision of Punjab & Haryana High Court and the decision of the apex Court is also applicable to the assessment year after 1st April, 1976 to which the amended s. 271(1)(c) by the Taxation Laws (Amendment) Act, 1975, is applicable. The decision of the apex Court is binding under Art. 141 of the Constitution of India.

15. It may also be useful to consider the provisions of s. 143(1A) before the amendment by Finance Act, 1993, which reads as follows : “Where, in the case of any person, the total income, as a result of the adjustments made under the first proviso to cl. (a) of sub-s. (1), exceeds the total income declared in the return by any amount, the AO shall,— (i) further increase the amount of tax payable under sub-s. (1) by an additional income-tax calculated at the rate of twenty per cent of the tax payable on such excess amount and specify the additional income-tax in the intimation to be sent under sub-cl. (1) of cl. (a) of sub-s. (1).” The issue whether the additional tax could be levied where the assessed income is loss as per the above provision of s. 143(1A), came up for consideration before this Court in the case of Indo-Gulf Fertilizers & Chemicals Corporation Ltd. vs. Union of India & Anr. (1992) 103 CTR (All) 25 : (1992) 195 ITR 485 (All). This Court relying upon the decision in the case of CIT vs. Prithipal Singh & Co. (supra) held that the same principle would apply in the case of an order imposing additional income-tax. This Court held as follows : “We feel that the same principle would apply in the case of an order imposing additional income-tax by way of penalty. According to Circular No. 549, referred to above, cl. (1) of the Explanation to s. 143(1A) of the Act, is on the same lines for the purpose of imposition of penalty as that of s. 271(1)(c) of the Act, for concealment of income in case of loss returns as contained in cl. (a) of Expln. 4 to s. 271(1). The circular, we find, does not contain correct directions, nor the directions issued by the Board for imposition of additional tax in case of reduced losses. For imposition of additional tax or penalty for concealment of income or for furnishing inaccurate returns to evade income-tax, there should be some concealment of positive income. We may clarify here that we are only considering the question of imposition of additional tax under s. 143(1A) of the Act. It does not cover cases of imposition of penalty or additional tax under any provision for any other act, omission or commission on the part of the assessee.” Similar view was taken by the Delhi High Court in the case of Modi Cement Ltd. vs. Union of India (1991) 100 CTR (Del) 48 : (1992) 193 ITR 91 (Del) and in the case of J.K. Synthetics Ltd. vs. Asstt. CIT (1993) 109 CTR (Del) 171 : (1993) 200 ITR 584 (Del). It may be mentioned here that in view of the aforesaid decision, s. 143(1A) of the Act has been amended by Finance Act, 1993, with retrospective effect from 1st April, 1989 specifically providing for the levy of additional tax where the loss declared by such persons in the return of income is reduced or is converted into income.

In the case of Indo-Gulf Fertilizers & Chemicals Corporation Ltd. vs. Union of India & Anr. (supra) this Court had clearly held that the principle for levy of penalty for concealment of income under s. 271(1)(c) of the Act and the levy of additional tax under s. 143(1A) of the Act would be applicable where the assessed income is loss. After the aforesaid decision, legislature amended the provisions of s. 143(1A) of the Act with retrospective effect but no retrospective amendment has been made under s. 271(1)(c) of the Act; legislature, vide Finance Act, 2002, amended s. 271(1) (c) of the Act w.e.f. 1st April, 2003 and it has not been made with retrospective effect.

18. In the case of CIT vs. Onkar Saran & Sons (1992) 103 CTR (SC) 293 : (1992) 195 ITR 1 (SC), apex Court held that the penalty for concealment would be governed by the law as it stood at the time when the original return was filed. Similar view has also been expressed by the apex Court in the case of Brij Mohan vs. CIT (1979) 12 CTR (SC) 198 : (1979) 120 ITR 1 (SC). It is settled principle of law that the amendment should be made applicable prospectively unless it is specifically made with retrospective effect. Apex Court in the case of K.M. Sharma vs. ITO (2002) 174 CTR (SC) 210 : (2002) 254 ITR 772 (SC) held as follows : “The taxing provision imposing a liability is governed by the normal presumption that it is not retrospective and the settled principle of law is that the law to be applied is that which is in force in the assessment year unless otherwise provided expressly or by necessary implication. Even a procedural provision cannot in the absence of clear contrary intendment expressed therein, be given greater retrospectivity than is expressly mentioned or to open up liabilities, which have become barred by lapse of time.”

19. In the case of Pyare Lal Sharma vs. J.K. Industries Ltd. AIR 1989 SC 1854, apex Court held that “it is basic principle of natural justice that no one can be penalised on a ground of fact, which was not on the day it was committed.’

20. For the reasons stated above, we respectfully do not agree with the view taken by Karnataka High Court and Bombay High Court and we agree with the view of Punjab & Haryana High Court and Kerala High Court. We are of the view that the decision of Punjab & Haryana High Court in the case of CIT vs. Prithipal Singh & Co. (supra), which has been confirmed by the apex Court in the appeal applies in the present case. Amended cl. (iii) and Expln. 4 by Finance Act, 2002, w.e.f. 1st April, 2003, is prospective in nature and does not apply to the year in consideration. The amendment does not speak that it is clarificatory in nature.

For the aforesaid reasons, we answer the question referred to us in affirmative, i.e., in favour of the assessee and against the Revenue.

[Citation : 279 ITR 197]

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