2013 (7) TMI 200 - HC - Income Tax

Penalty u/s 271(1)(c) - Tribunal held that mere concealment or furnishing of inaccurate particulars by itself would not justify the levy of penalty - Held that - evident that 43 vouchers created by the assessee were for a sum of Rs.21,01,500/-, whereas, the amount debited in the profit and loss account was to the extent of Rs.32,67,730/-, therefore, the entire claim made towards service charges had been proved to be false or bogus because those details were not even furnished in the new vouchers. It is no doubt true that confronted by above facts the assessee offered the said amount for assessment and paid tax thereon. This however does not absolve the assessee on the aspect of concealment attracting the penalty provisions. The assessee admitted that the amount, which was claimed to be the expenditure towards service charges were diverted for investment in various properties and gifting and advancing monies etc. They were reflected in the accounts of the assessee for the assessment years 2003-04 and 2004-05 - attempt to fabricate the evidence to make an illegal gain, by suppression of profits is clearly made out attracting penalty provisions. The view of the Income Tax Appellate Tribunal ignoring the law declared by this Court and Apex Court in the decision in the case of Union of India and others Vs. Dharamendra Textile Processors and others 2008 (9) TMI 52 - SUPREME COURT cannot be sustained. - Penalty confirmed - Decided in favour of Revenue.

Summary

Issues:
Appeal against order of Income Tax Appellate Tribunal regarding concealment of income and penalty for expenses claimed.

Analysis:
The case involved an individual acting as a Mediator between granite quarry owners and purchasers of granite, who filed a return of income for the assessment year 2004-05, offering total income of Rs.32,67,730. The assessee maintained two sets of vouchers, with doubts raised about their genuineness, leading to a survey under Section 133A of the Income Tax Act. It was revealed that the assessee had replaced original vouchers with newly printed forms, leading to discrepancies in the records. The Assessing Officer initiated penalty proceedings under Section 271(1)(c) of the Act, as he found manipulations in the vouchers and concluded that the claims were not genuine. The penalty was levied at 100% of the tax sought to be evaded, which the assessee appealed against.

The Commissioner of Income Tax noted that the assessee disclosed additional income of Rs.32,67,730 towards service charges and commission payments for different assessment years. The Commissioner found that the amounts claimed as service charges were invested in various assets, and there was a conscious attempt to make a false claim, resulting in suppression of facts. The Commissioner pointed out discrepancies in the vouchers and investments made by the assessee, leading to the confirmation of the penalty.

The Income Tax Appellate Tribunal, however, canceled the penalty under Section 271(1)(c), citing that failure to explain expenditure does not necessarily imply concealment. Referring to legal precedents, the Tribunal held that mere concealment or furnishing inaccurate particulars does not justify the levy of penalty. The Tribunal emphasized that unless there is deliberate defiance of law or dishonest conduct, penalty cannot be levied.

The High Court, in its judgment, agreed with the Revenue that the assessee had consciously created bogus records to claim deductions on expenditure, reducing tax liability. The Court found that the entire claim towards service charges was false and fabricated, as the vouchers did not support the claimed amount. The Court emphasized that the assessee diverted the claimed amount for investments and other purposes, reflecting a deliberate attempt to suppress profits. The Court set aside the Tribunal's order, stating that penalty provisions were applicable considering the deliberate fabrication of evidence.

In conclusion, the High Court allowed the Tax Case Appeal, emphasizing that the Tribunal should have considered the law declared by the Apex Court in the proper perspective to sustain the penalty. No costs were awarded in the judgment.