2016 (5) TMI 763 - AT - Income Tax

Penalty U/s 271(1)(c) - Held that - The investment made in the house purchased was withdrawn from the bank account of the son as well as wife of the assessee, which has also not been controverted by the lower authorities. The daughter in law of assessee also made payment for the purchase of house from the sale proceeds of her car. These explanations were made before the ld Assessing Officer during the course of assessment proceedings, but had not been accepted by him. It is also undisputed fact that the various additions have been confirmed by the Coordinate Bench under various heads but in our view that the assessee has filed bonafide explanation, which was not found false to the lower authorities. Whatever income in the return cannot be assumed by the Assessing Officer as concealed income as the various Hon ble High Courts have decided this issue in favour of the assessee when financial year of relevant assessment year 2007-08 has not been ended i.e. survey was conducted on 21/3/2007, therefore, assessee for reason to file the return on or before 31st October, 2007, which has been filed on 31/10/2007 and disclosed the income at ₹ 15,19,443/- in it. The ld AR of the assessee also contended that there was no satisfaction of the Assessing Officer at the time of initiation of penalty proceedings of the Assessing Officer for specifically concealed the particulars of income or furnished inaccurate particulars of income. It is a fact that the ld Assessing Officer initiated the penalty proceedings penalty notice U/s 271(1)(c) is being issued separately but he has not mentioned whether this penalty is for concealment of income or furnishing inaccurate particulars of income. However, in the penalty order under the various heads, he held this penalty for concealed income. After considering the totality of all facts and legal position, we find that the ld CIT(A) was not right in confirming the penalty U/s 271(1)(c) of the Act even on remaining additions. Accordingly, we delete the penalty confirmed by the ld CIT(A) and dismiss the revenue s appeal against the order of the ld CIT(A). - Decided in favour of assessee.

Summary

Issues Involved:
1. Confirmation of penalty under Section 271(1)(c) of the Income Tax Act.
2. Deletion of income by way of excess cash, undisclosed stock, and investment in house property.

Detailed Analysis:

1. Confirmation of Penalty under Section 271(1)(c):

The assessee filed an appeal against the confirmation of penalty under Section 271(1)(c) by the CIT(A). The Assessing Officer (AO) initiated penalty proceedings for the following additions: excess cash, excess stock, and unexplained investment in house property. The AO did not specify whether the penalty was for concealing particulars of income or furnishing inaccurate particulars of income.

The AO observed that during a survey under Section 133A, the assessee was not maintaining any books of account. The discrepancies found during the survey were confirmed by the appellate authority, leading to the imposition of penalty. The AO noted that the assessee had surrendered certain amounts during the survey but did not disclose these in the return filed. The AO imposed a minimum penalty of 100% on the tax sought to be evaded, amounting to ?18,65,860.

The CIT(A) partly allowed the appeal, confirming the penalty on undisclosed cash of ?1,00,000 and unexplained investment in house property of ?22,23,200. The CIT(A) deleted the penalty on excess cash surrendered during the survey and on the amount of ?35,000 under the head of repair of property.

2. Deletion of Income by Way of Excess Cash, Undisclosed Stock, and Investment in House Property:

The revenue filed an appeal against the deletion of penalty by the CIT(A). The AO made the following additions during the assessment:

- Excess cash: ?1,76,604
- Excess stock: ?29,79,970
- House property: ?25,23,200
- Pawning: ?4,65,919

The AO initiated penalty proceedings separately for these additions. The assessee argued that the additions were based on estimation and that no books of account were maintained, but later prepared and audited books were submitted. The assessee contended that the stock found during the survey was valued at market price and that the investment in house property was made from withdrawals from family members' bank accounts.

The ITAT observed that the assessee was not maintaining regular books of account but was filing returns regularly. The discrepancies found during the survey were explained by the assessee with evidence, which was not controverted by the AO or CIT(A). The ITAT noted that the assessee's closing stock was consistently shown more or less equal to the sales of respective years, supporting the assessee's case that the stock found during the survey matched the sales shown during the year.

The ITAT found that the assessee had filed a bona fide explanation, which was not found false by the lower authorities. The ITAT held that the penalty under Section 271(1)(c) could not be imposed on the basis of estimation of income. The ITAT also noted that the AO had not recorded any satisfaction at the time of initiation of penalty proceedings, which is a condition precedent for imposing penalty.

Conclusion:

The ITAT deleted the penalty confirmed by the CIT(A) and dismissed the revenue's appeal. The ITAT held that the assessee had provided a bona fide explanation for the discrepancies found during the survey, and the penalty under Section 271(1)(c) could not be imposed on the basis of estimation of income. The ITAT emphasized the importance of recording satisfaction by the AO at the time of initiation of penalty proceedings.