2012 (3) TMI 648 - AT - Income Tax

Summary

Issues Involved:
1. Validity of penalty u/s 158BFA(2) of the Income-tax Act.
2. Determination of undisclosed income based on breakage of bottles.
3. Determination of undisclosed income based on the cost of bottles.

Summary:

1. Validity of penalty u/s 158BFA(2) of the Income-tax Act:
The assessee contended that the entire addition was based on estimates and no concrete evidence was provided to establish concealment of income. The ITAT agreed, noting that the assessment was based on an undated and unsigned cost sheet, and that the books of accounts were not rejected. The Tribunal held that penalty cannot be imposed when undisclosed income is determined purely on an estimate basis, referencing the ITAT Jaipur Bench decision in ACIT vs. Shanti Kumar Chabara and the High Court rulings in CIT Vs. Satyendrakumar Dosi and CIT vs. Dodsal Limited.

2. Determination of undisclosed income based on breakage of bottles:
The assessing officer found discrepancies between the number of bottles issued and sold, attributing the difference to breakage. The breakage percentage recorded ranged from 6.92% to 54%, but the assessing officer adopted a 6% breakage rate based on a seized cost sheet, resulting in an addition of Rs. 4,35,60,320/-. The CIT (A) justified the 6% rate but restricted the disallowance to Rs. 3,84,09,408/-. The ITAT, however, directed the assessing officer to adopt a 15% breakage rate, considering the various sizes of bottles and the lack of concrete evidence for the higher breakage claimed by the assessee.

3. Determination of undisclosed income based on the cost of bottles:
The assessing officer observed that the assessee inflated the cost of bottles purchased from connected concerns, adopting a cost of Rs. 1.50 per bottle against the assessee's Rs. 1.90 per bottle, resulting in an addition of Rs. 3,22,29,886/-. For other suppliers, the cost was also restricted to Rs. 1.50 per bottle, adding Rs. 2,62,61,621/-. The CIT (A) upheld the addition for connected concerns but deleted the addition for other suppliers. The ITAT directed the assessing officer to adopt a rate of Rs. 1.80 per bottle, noting the lack of concrete evidence for inflated purchases and the absence of any fault in the books of accounts or purchase vouchers.

Conclusion:
The ITAT concluded that the undisclosed income was determined on an estimate basis and thus, no penalty u/s 158BFA(2) could be imposed. The appeal filed by the assessee was allowed, and the penalty imposed was deleted.