JUDGMENT
1. The appeal was admitted on the following ground:
Whether, on the facts and circumstances of the case, the learned Tribunal was justified in law in holding that the mistake in computation was intentional concealment and wrong furnishing of particulars though the assessee pointed out that there is a mistake in indexation and paid the entire tax and interest immediately ?
2. Mr. Dipak Deb, learned senior counsel representing the Department, pointed out that this is a ground on fact, not a substantial question of law. In fact, as it appears from the ground, it seems to be misleading. The ground, if we read properly, may be coined as such:
Whether, on the facts and circumstances of the case, the wrong calculation on the basis of mistaken indexation could be treated to be furnishing of wrong particulars or concealment of income within the meaning of Section 271(1)(c) of the Income-tax Act, 1961 ?
The submission of the Department:
3. Mr. Deb next contended that so far as Section 271(1)(c) of the Income-tax Act, 1961, is concerned, originally the word “deliberately” was used in the section but it was omitted subsequently. This indicates that there is no question of voluntary or involuntary or bona fide or mala fide concealment of furnishing of income or wrong calculation. According to him, wrong calculation on the basis of mistaken indexation is also a furnishing of wrong information or an indirect concealment. According to him, since the section has used express words, the court cannot interpret it otherwise. He relied on a passage from the decision in CIT v. Capital Electronics (Gariahat) .
4. In the said decision, Mr. Deb had occasion to appear and make similar submission, viz., (p 7) “The statute has to be interpreted in the manner it has expressed its intention. Neither the Tribunal nor the court can interpret an enactment in a manner different from the way it is expressed by the Legislature through express language ’employed’ therein.” This submission was accepted in the said decision by the Division Bench in which one of us (D.K. Seth J.) was a party. He has also pointed out that the learned Tribunal and the Assessing Officer have come to a finding of fact that the assessee had furnished inaccurate particulars and therefore this Court should not interfere with such finding of facts.
Submission by the appellant/assessee:
5. Mr. Mitra, learned Counsel appearing for the assessee-appellant, on the other hand, contended that there is a distinction between the furnishing of wrong particulars and making a wrong calculation. According to him, a wrong calculation is also distinguished from concealment. He drew our attention to the relevant facts which are admitted and contended that all particulars were disclosed. On the basis of such particulars, the calculation could be made and it was so made by the Assessing Officer. Therefore, there is no scope for applying Section 271(1)(c).
Section 271(1)(c): Whether can be attracted:
6. We have heard the respective counsel for the parties. It appears that the provisions contained in Section 271(1)(c) are penal in nature. It visits the assessee with civil consequences. Therefore it has to be interpreted strictly. As rightly contended by Mr. Deb, the statute has to be interpreted in the manner it has expressed its intention. Neither the Tribunal nor the court can interpret an enactment in a manner different from the way it is expressed by the Legislature through express language employed therein. This is a well-settled principle of law.
7. If we go by Section 271(1)(c), then it appears that the said section will apply in a case where the assessee has concealed his income or has furnished wrong particulars. In this case, it appears that all the particulars were furnished and there is no finding that the particulars that were furnished were wrong in any respect.
8. There is nothing to indicate that there was any concealment. The only wrong information that was detected by the Assessing Officer and affirmed by the learned Tribunal disagreeing with the decision taken by the Commissioner of Income-tax (Appeals) was that the calculation made on the basis of the indexation was wrong and that indexation was not correct. Thus, the question boils down to the proposition that it was a wrong calculation on the basis of a mistaken indexation. Now, the question is whether the wrong calculation on the basis of the mistaken indexation could be treated to be an indirect concealment or a wrong furnishing of particulars.
Calculation on mistaken indexation : Whether a wrong information or concealment:
9. The particulars are already disclosed. On the basis of such particulars the conclusion has to be arrived at as to the exact amount to be taxed. This can be arrived at upon a calculation on the basis of the particulars furnished. Therefore, it is a mere calculation which was found to be wrong or mistaken. The basis of calculation was also found to be a mistaken indexation. This was sought to be explained by the assessee as a mistake and confusion and the fact remains that the assessee represented himself and not through a lawyer. Be that as it may, the representation by the assessee himself without the lawyer would not be a ground if it is found that there is a wrong furnishing of particulars or a concealment.
10. A calculation can never be a furnishing of wrong particulars, on the other hand/calculation is made on the basis of the particulars. If the particulars are furnished and the calculation is to be made on the basis of an indexation for which a formula exists and such formula can be worked out, then a mistake in indexation is detectable. In case of working out such indexation if a mistake is committed then the same can be corrected by the Assessing Officer on the basis of the particulars furnished. In this case, this is exactly what has happened. The mistake in the indexation has since been detected. There is nothing to show that the Assessing Officer was misled. On the other hand, on the basis of the particulars furnished the Assessing Officer has arrived at the correct indexation.
11. There is a distinction between furnishing of wrong particulars and making a wrong calculation on the basis of the particulars furnished. If the particulars are furnished then there cannot be any question of concealment. A mistaken calculation is distinct from concealment. A mistaken indexation would not amount to furnishing of wrong particulars nor concealment within the scope of Section 271(1)(c) a penal provision to be construed strictly.
Conclusion:
12. Thus, we do not find any substance in the submission of Mr. Deb to the extent that calculation would also amount to an indirect concealment or a wrong furnishing of particulars, as was held by the learned Tribunal. In our view, the wrong calculation on the basis of a mistaken indexation does not come within the purview of Section 271(1)(c).
Order:
13. In the circumstances, the appeal succeeds and is allowed. The question, as reframed in this order, is answered in the negative.
No order is passed as to costs.
14. All parties are to act on a xerox signed copy of this dictated order on the usual undertaking.