2016 (12) TMI 1825 - AT - Income Tax

Penalty u/s 271(1)(c) -Tribunal has held that the commission should be taken at 0.15% and the expenditure claimed should be restricted and allowed to the extent of 50% from such income - HELD THAT - We find that the co-ordinate Bench of the Tribunal has directed the AO to take commission at the rate of 0.15% and allow the expenses to the tune of 50% of the said commission and bring to tax the amount so worked out. Further we find that on the identical facts the penalty has been deleted by the co-ordinate Bench of the Tribunal in M/S. GOLDSTAR FINVEST PVT. LTD. VERSUS THE DCIT- CENTRAL CIRCLE -46 MUMBAI 2016 (8) TMI 1502 - ITAT MUMBAI . Accordingly we set aside the order of the ld.CIT(A) and direct the AO to delete the penalty. Appeal of the assessee is allowed.

Summary

Issues Involved:
1. Imposition of penalty under section 271(1)(c) of the Income Tax Act, 1961.
2. Determination of commission income or net profit for providing bogus share trading entries.
3. Allowance of business expenses against the net income.

Detailed Analysis:

1. Imposition of Penalty under Section 271(1)(c):
The primary issue in this appeal is the imposition of a penalty amounting to Rs. 65,09,000/- under section 271(1)(c) of the Income Tax Act, 1961. The assessee challenged this penalty, which was upheld by the CIT(A) but contested based on a favorable decision in a quantum appeal by the Co-ordinate Bench of the Tribunal. The Tribunal had previously deleted similar penalties in ITA No.7570/Mum/2014 (AY-2009-10) dated 24.8.2016, establishing a precedent for the deletion of penalties under similar circumstances.

2. Determination of Commission Income or Net Profit:
The Tribunal examined the determination of commission income or net profit from providing bogus share trading entries. The assessments were made following a search and seizure action under section 132(1) on 25.11.2009, involving several group companies managed by the same individual. The Tribunal consistently upheld a net profit rate of 0.15% in various cases, including the assessee's own case, rather than the 2% applied by the AO. The Tribunal's decision was based on the judicial precedence and the statements recorded during the search, which indicated commission rates ranging from 0.15% to 2%.

3. Allowance of Business Expenses:
Regarding the allowance of business expenses, the Tribunal directed that 50% of the claimed expenses should be allowed against the net income determined at 0.15%. This decision was consistent with previous Tribunal orders, which allowed 50% of business expenses in similar cases. The Tribunal reiterated this stance, ensuring that the AO allows business expenses to the extent of 50% from the income determined at the rate of 0.15%.

Conclusion:
The Tribunal concluded that the penalty under section 271(1)(c) should be deleted, following the judicial precedence set in similar cases. The Tribunal directed the AO to determine the commission income at 0.15% and allow 50% of the business expenses against this income. The appeal of the assessee was allowed, and the penalty was directed to be deleted.

Order Pronouncement:
The order was pronounced in the open court on 29th Dec, 2016, and the appeal of the assessee was allowed, setting aside the order of the CIT(A) and directing the AO to delete the penalty.