Income tax penalty

Penalty proceedings are seperate from assessment proceedings wherein more stringent test of mens rea for tax evasion or furnishing of inaccurate particulars of income has to be established. Each addition or disallowance in assessment does not automatically lead to penalty.

Yes agreed. Penalty u/s 271(1)(c) is not mandatory penalty its to be levied only when concealment of income and inaccurate furnishing of particulars are proved. I want to cite here a very important recent Judgement of the S.C wherein its been decided that  merely making a non sustainable claim in law doesnot lead to furnishing incorrect particulars.

 

The argument of the revenue that “submitting an incorrect claim for expenditure would amount to giving inaccurate particulars of such income” is not correct. 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. If the contention of the Revenue is accepted then in case of every Return where the claim made is not accepted by the AO for any reason, the assessee will invite penalty u/s 271(1)(c). That is clearly not the intendment of the Legislature.

Held in the latest case
CIT vs. Reliance Petroproducts (Supreme Court)

Mens Rea must be proved before leving penalty us 271(1)(c)

Just for information.

 

04/04/2010 TOI

Pay tax, convert black money into white

Pradeep Thakur | TNN 

New Delhi: An income-tax raid on a Delhi-based infrastructure and power major with a turnover of over $2.5 billion led to the disclosure of unaccounted income worth Rs 212 crore. Assuming a profit rate of 10%, the disclosure also amounted to an admission that the businessman had withheld disclosing a turnover worth Rs 2,000 crore which, had it been accounted for, would have spelt big gains for other tax departments such as service tax, central excise, VAT and others. 
    But with the departments failing to come together and with the income-tax department itself fighting shy of using stringent provisions in its armoury to deal with tax evaders, the businessman has got away simply by agreeing to pay income tax. 
    This is not an isolated instance. Last month, a steel manufacturer on the outskirts of Delhi made a bigger disclosure after an income-tax raid. 
    The reluctance of the I-T department to use provisions designed to deal with such cases and the lack of co-ordination among different tax departments is encouraging a new way of legalizing income kept hidden from the government. Under Section 271(1)C and 271 AAA of the I-T Act, the I-T department has powers to levy a penalty of 100%-300% on all such disclosures where the modus operandi is not revealed and the source of funds not fully explained. For every Rs 5 crore disclosed, I-T laws provide for a penalty of Rs 1.5 crore in addition to a tax of Rs 1.5 crore and an interest of Rs 50,000. System flaws make India a big tax haven 
New Delhi: Although the incometax department is empowered to slap a hefty penalty in tax evasion cases, rarely has any firm which makes “disclosures’’ after an I-T raid been subjected to such penalty. “If an entity can disclose unaccounted income of Rs 200 crore in one year, is it possible that the firm was fair in its dealings in all the previous years of its existence,’’ asked an official. 
    The laxity seems to have started a trend. According to the finance ministry, during the financial year 2009-2010, over 2,300 search and survey operations were conducted up to December 2009, leading to the seizure of cash and assets worth Rs 602 crore and a disclosure of Rs 1,832 crore of unaccounted income. 
    The I-T’s Gujarat unit recently claimed to have unearthed Rs 2,877 crore as undisclosed income in 25 raids on industrialists and businessmen across the state in the last one year. The figure for the previous year was Rs 1,000 crore. 
    Every year since 2005, incometax raids lead to disclosures of thousands of crores which are estimated to amount to less than 10% of the actual evasion. This makes the country one of the biggest tax havens, where a parallel unaccounted economy thrives. Why have enforcement agencies failed to plug loopholes that lead to corporates tricking the system even after a multitude of search and survey operations? 
    Sources said the accused firm or individuals always manage to get away by paying a tax of 30% and cess on the disclosure. Seldom have they revealed the mode and the manner in which such income has been earned or the entities where such unaccounted money has been reinvested, as mandated under the I-T Act. That ensures the unhindered run of the parallel economy. 
    The enormity of money laundering was revealed in a data compiled by the I-T department in 2005-06. The information was packed in a CD that contained a list of over 6,000 individuals, many of them among the who’s who of the country, and a copy was circulated among all chief commissioners for further action. The CD contained particulars of 20,000 bank accounts and details of transactions between hawala dealers and beneficiaries. Simultaneously, the department, in a crackdown on hawala dealers, had unearthed transactions worth over Rs 3,000 crore in Delhi alone. The entry operators had issued cheques against cash deposits in their accounts and raised bogus bills for a commission of 1% of the total transaction. 
    In one such case, I-T sleuths had unearthed transactions of Rs 1,540 crore at the Fatehpuri branch of Federal Bank in the capital in 2005. During investigation, it was found that only three individuals had transacted the entire amount of Rs 1,540 crore.

 

 

 

 

 

 

When ever Income tax evasion is established the authorities have to impose penalty between 100% to 300% of course if some undisclosed income pertaining to current year is found then no penalty

In the case I referred to, the investigation wing of the IT Department investigated the matter in 2008 and found concealment of income and tax evasion for the AY 2000-01, 2001-02 and 2002-03 and slapped demand notice for Rs.6.20 crores.

In this case also, no penalty is leviable or ITO has the discretion?

Penalty proceedings should have been initiated. The actual levy of penalty depends upon facts of the case as to whether it was concealment of income or difference opinion in interpretation of law or any other reason leading to demand.

Friends, I think without 'audi alteram ' principle how penalty can be imposed under any law. presumptions of 'mens rea' are just an accusation but penalty is a sentence or a conviction is it not.