Under the existing provisions, penalty on account of concealment of particulars of income or furnishing inaccurate particulars of income is leviable under section 271(1)(c) of the Income-tax Act. In order to rationalize and bring objectivity, certainty and clarity in the penalty provisions, it is proposed that section 271 shall not apply to and in relation to any assessment for the assessment year commencing on or after the 1st day of April, 2017 and subsequent assessment years and penalty be levied under the newly inserted section 270A with effect from 1st April, 2017. The new section 270A provides for levy of penalty in cases of under reporting and misreporting of income.
Sub-section (1) of the proposed new section 270A seeks to provide that the Assessing Officer, Commissioner (Appeals) or the Principal Commissioner or Commissioner may levy penalty if a person has under reported his income.
It is proposed that a person shall be considered to have under reported his income if,-
(a) the income assessed is greater than the income determined in the return processed under clause (a) of sub-section (1) of section 143;
(b) the income assessed is greater than the maximum amount not chargeable to tax, where no return of income has been furnished;
(c) the income reassessed is greater than the income assessed or reassessed immediately before such re-assessment;
(d) the amount of deemed total income assessed or reassessed as per the provisions of section 115JB or 115JC, as the case may be, is greater than the deemed total income determined in the return processed under clause (a) of sub-section (1) of section 143;
(e) the amount of deemed total income assessed as per the provisions of section 115JB or 115JC is greater than the maximum amount not chargeable to tax, where no return of income has been filed;
(f) the income assessed or reassessed has the effect of reducing the loss or converting such loss into income.
The amount of under-reported income is proposed to be calculated in different scenarios as discussed herein. In a case where return is furnished and assessment is made for the first time the amount of under reported income in case of all persons shall be the difference between the assessed income and the income determined under section 143(1)(a). In a case where no return has been furnished and the return is furnished for the first time, the amount of under-reported income is proposed to be:
(i) for a company, firm or local authority, the assessed income;
(ii) for a person other than company, firm or local authority, the difference between the assessed income and the maximum amount not chargeable to tax.
In case of any person, where income is not assessed for the first time, the amount of under reported income shall be the difference between the income assessed or determined in such order and the income assessed or determined in the order immediately preceding such order.
It is further proposed that in a case where under reported income arises out of determination of deemed total income in accordance with the provisions of section 115JB or section 115JC, the amount of total under reported income shall be determined in accordance with the following formula-
(A - B) + (C - D)
where,
A = the total income assessed as per the provisions other than the provisions contained in section 115JB or section 115JC (herein called general provisions);
B = the total income that would have been chargeable had the total income assessed as per the general provisions been reduced by the amount of under reported income;
C = the total income assessed as per the provisions contained in section 115JB or section 115JC;
D = the total income that would have been chargeable had the total income assessed as per the provisions contained in section 115JB or section 115JC been reduced by the amount of under reported income.
However, where the amount of under reported income on any issue is considered both under the provisions contained in section 115JB or section 115JC and under general provisions, such amount shall not be reduced from total income assessed while determining the amount under item D.
It is clarified that in a case where an assessment or reassessment has the effect of reducing the loss declared in the return or converting that loss into income, the amount of under reported income shall be the difference between the loss claimed and the income or loss, as the case may be, assessed or reassessed.
Calculation of under-reported income in a case where the source of any receipt, deposit or investment is linked to earlier year is proposed to be provided based on
the existing Explanation 2 to sub-section (l) of section 271 (1).
It is also proposed that the under-reported income under this section shall not include the following cases:
(i) where the assessee offers an explanation and the income-tax authority is satisfied that the explanation is bonafide and all the material facts have been
disclosed;
(ii) where such under-reported income is determined on the basis of an estimate, if the accounts are correct and complete but the method employed is such
that the income cannot properly be deducted therefrom;
(iii) where the assessee has, on his own, estimated a lower amount of addition or disallowance on the issue and has included such amount in the computation
of his income and disclosed all the facts material to the addition or disallowance;
(iv) where the assessee had maintained information and documents as prescribed under section 92D, declared the international transaction under Chapter X
and disclosed all the material facts relating to the transaction;
(v) where the undisclosed income is on account of a search operation and penalty is leviable under section 271AAB.
It is proposed that the rate of penalty shall be fifty per cent of the tax payable on under-reported income. However in a case where under reporting of income results
from misreporting of income by the assessee, the person shall be liable for penalty at the rate of two hundred per cent of the tax payable on such misreported income.
The cases of misreporting of income have been specified as under:
(i) misrepresentation or suppression of facts;
(ii) non-recording of investments in books of account;
(iii) claiming of expenditure not substantiated by evidence;
(iv) recording of false entry in books of account;
(v) failure to record any receipt in books of account having a bearing on total income;
(vi) failure to report any international transaction or deemed international transaction under Chapter X.
It is also proposed that in case of company, firm or local authority, the tax payable on under reported income shall be calculated as if the under-reported income is the total income. In any other case the tax payable shall be thirty per cent of the under-reported income.
It is also proposed that no addition or disallowance of an amount shall form the basis for imposition of penalty, if such addition or disallowance has formed the basis of imposition of penalty in the case of the person for the same or any other assessment year.
These amendments will take effect from 1st day of April, 2017 and will, accordingly apply in relation to assessment year2017-2018 and subsequent years.
Consequential amendments have been proposed in sections 119, 253, 271A, 271AA, 271AAB, 273A and 279 to providereference to newly inserted section 270A.
The provisions of section 270A are illustrated through examples as below:
Example 1. Case is of a firm liable to tax at the rate of 30 per cent.:
| (Figures in Rs lakh) |
Returned total Income | 100 |
Total Income determined under section 143(1)(a) | 110 |
Total Income assessed under section 143(3) | 150 |
Total Income reassessed under section 147 | 180 |
Considering that none of the additions or disallowances made in assessment or reassessment as above qualifies under sub-section (6) of section 270A, the penalty would be calculated as under:
| Assessment under section 143 (3) | Re-assessment under section 147 |
Under-reported Income | (150-110) = 40 | (180-150) = 30 |
Tax Payable on under-reported Income | 30 % of 40 = 12 | 30 % of 30 = 9 |
Penalty Leviable* | 50 % of 12 = 6 | 50 % of 9 = 4.5 |
* Considering under-reported income is not on account of misreporting
Example 2. Case is of an individual below 60 years of age and no return of income has been furnished:
| (Figures in Rs) |
Total Income assessed under section 143(3) | 10,00,000 |
Under-reported Income | 10,00,000-2,50,000* =7,50,000 |
Tax Payable on under-reported Income | 30 % of 7,50,000 = 2,25,000 |
Penalty Leviable** | 50 % of 2,25,000 = 1,12,500 |
* Being maximum amount not chargeable to tax
** Considering under-reported income is not on account of misreporting
Example 3. Case is of a company liable to tax at the rate of 30 per cent.:
| (Figures in Rs lakh) |
Returned total Income (loss) | (-)100 |
Total Income (loss) determined under section 143(1)(a) | (-)90 |
Total Income (loss) assessed under section 143(3) | (-)40 |
Total Income reassessed under section 147 | 20 |
Considering that none of the additions or disallowances made in assessment or reassessment as above qualifies under sub-section (6) of section 270A, the penalty would be calculated as under:
| Assessment under section 143 (3) | Re-assessment under section 147 |
Under-reported Income | (-)40 minus (-)90 = 50 | 20 minus (-)40 = 60 |
Tax Payable on under-reported Income | 30 % of 50 = 15 | 30 % of 60 = 18 |
Penalty Leviable* | 50 % of 15 = 7.5 | 50 % of 18 = 9 |
* Considering under-reported income is not on account of misreporting
Existing provision of clause (c) of sub-section (1) of section 271AAB provides that in a case not covered under the provisions of clauses (a) and (b) of the said subsection of section 271 AAB, a penalty of a sum which shall not be less than thirty per cent but which shall not exceed ninety per cent of the undisclosed income of the specified previous year shall be levied in case where search has been initiated under section 132 on or after the 1st day of July, 2012.
In order to rationalise the rate of penalty and to reduce discretion it is proposed to amend that clause (c) of sub-section (1) of section 271AAB to provide for levy of penalty on such undisclosed income at a fl at rate of sixty per cent of such income.
