2016 (11) TMI 1061 - AT - Income Tax

Penalty u/s 271(1)(c) - income estimation - addition made after estimating the income of the assessee by way of net commission @ 6% to 7%. Held that - Once it is a matter of estimation and the final income sustained after estimation of net profit is very near to the estimate of commission income shown by the assessee, then under these facts and circumstances, it cannot be held that any penalty can be levied under section 271(1)(c) either for concealment of income or for furnishing of inaccurate particulars. Once it is a case of pure estimation which has been varied by various authorities at different stages, then on such difference of opinion that to be in the matter of estimation, it cannot lead to any inference of levy of penalty. Accordingly, penalty levied by the Assessing Officer and sustained by the CIT(A) is hereby directed to be deleted in all the years. - Decided in favour of assessee.

Issues Involved:
1. Levy of penalty under section 271(1)(c) for assessment years 2002-03, 2003-04, 2004-05, and 2008-09.
2. Estimation of net profit rate of commission income.
3. Determination of whether the penalty for concealment of income or furnishing inaccurate particulars is justified.

Detailed Analysis:

1. Levy of Penalty under Section 271(1)(c):
The appeals were filed against the common order dated 22.01.2015, passed by CIT(A)-29, Mumbai, concerning penalty proceedings under section 271(1)(c) for the assessment years 2002-03, 2003-04, 2004-05, and 2008-09. The penalties levied for these years were Rs. 6,91,449, Rs. 7,03,687, Rs. 12,20,646, and Rs. 11,34,086, respectively.

2. Estimation of Net Profit Rate of Commission Income:
The assessee, a trader in fabrics, was found during a survey under section 133A to be issuing accommodation sales bills. The Assessing Officer (AO) estimated the commission income for various assessment years based on the product value and different percentages of sales and purchases. The assessee contended that the net profit from such commission income was around 0.42%, whereas the AO estimated it at 7%, later adjusted to approximately 6.35% after accounting for expenses.

In the first appeal, the CIT(A) confirmed the AO's estimation, but the Tribunal later reduced the net profit rate of commission to 0.6% of the turnover while retaining 5% of net expenditure allowed by the AO.

3. Justification of Penalty for Concealment of Income or Furnishing Inaccurate Particulars:
The Tribunal observed that the substantial relief granted in the net profit rate meant that the difference between the net profit shown by the assessee and the estimated profit was minimal. The Tribunal referenced several decisions, including Sanjay Kumar Garg vs. ACIT and Gold Star Finvest (P.) Ltd. vs. ITO, which supported a lower commission rate for accommodation entries, typically around 0.15% to 0.2%.

The Tribunal concluded that since the income estimation had been scaled down significantly and the differential tax amount was minimal, it could not be said that there was concealment of income or furnishing of inaccurate particulars. The Tribunal held that penalty under section 271(1)(c) could not be levied in a case of pure estimation, especially when the final income sustained was close to the commission income shown by the assessee.

Conclusion:
The Tribunal directed the deletion of the penalties levied by the AO and sustained by the CIT(A) for all the assessment years involved. The appeals of the assessee were allowed, and the order was pronounced in open court on 29th September 2016.

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