2011 (6) TMI 786 - AT - Income Tax

Summary

Issues Involved:
1. Confirmation of penalty levied under Section 158BFA(2) of the Income Tax Act.
2. Validity of the penalty in the context of the block assessment.
3. Consideration of client ID mismatches and their implications.
4. Relevance of evidence found during the search.
5. The approach of the Assessing Officer in different assessment years.
6. The impact of pending appeals before higher courts on the penalty.

Issue-wise Detailed Analysis:

1. Confirmation of Penalty Levied under Section 158BFA(2):
The CIT(A) confirmed the penalty of Rs. 672,45,00,000 levied by the Assessing Officer under Section 158BFA(2) of the Income Tax Act. The assessee contended that the CIT(A) erred in upholding the penalty without reference to corroborative evidence and circumstantial evidence filed before the Assessing Officer.

2. Validity of the Penalty in the Context of the Block Assessment:
The assessee argued that the penalty could not be sustained as the issue of addition made by the Assessing Officer as undisclosed income was debatable and pending adjudication before the jurisdictional High Court. The Tribunal noted that the levy of penalty under Section 158BFA(2) is not automatic and mandatory; the Assessing Officer must consider all relevant facts and circumstances.

3. Consideration of Client ID Mismatches and Their Implications:
During the search, 12 CDs containing accounting and trading data revealed discrepancies in client codes between the Stock Exchange records and the assessee's books of account. The Special Auditor observed that approximately 50% to 55% of transactions had mismatched client IDs. The Tribunal upheld the view that the real nature of these transactions was discovered through the search and follow-up inquiries, leading to the determination of undisclosed income.

4. Relevance of Evidence Found During the Search:
The Tribunal emphasized that the undisclosed income must be based on evidence found during the search or information related to such evidence. The data in the CDs and further evidence gathered post-search indicated client ID mismatches, forming the basis for the addition of undisclosed income. The Tribunal held that the transactions recorded in the books of account did not disclose the assessee's true income, and the material found during the search led to the determination of undisclosed income.

5. The Approach of the Assessing Officer in Different Assessment Years:
The assessee highlighted the inconsistency in the Assessing Officer's approach, as similar additions were made in regular assessments for AYs 1998-99 and 1999-00 but in block assessments for AYs 2000-01 and 2001-02. The Tribunal noted that the punching of client IDs was not compulsory during the relevant years, and the addition was based on assumptions and presumptions without proving the transactions were of the assessee.

6. The Impact of Pending Appeals Before Higher Courts on the Penalty:
The assessee's appeal against the Tribunal's order was admitted by the Hon'ble Bombay High Court, making the addition a debatable issue. However, the Tribunal held that mere admission of the appeal does not automatically negate the penalty. The penalty order can be passed within six months from the end of the month in which the order of the CIT(A) or the Tribunal is received, and there is no provision to extend this period for the outcome of appeals before the High Court.

Conclusion:
The Tribunal dismissed the appeal filed by the assessee, upholding the penalty levied under Section 158BFA(2) of the Income Tax Act. The Tribunal found no error or illegality in the lower authorities' orders, emphasizing that the undisclosed income was determined based on evidence found during the search and subsequent inquiries. The Tribunal also clarified that the filing of an appeal before the High Court does not automatically negate the penalty unless the circumstances warrant it.