2017 (2) TMI 651 - AT - Income Tax

Penalty u/s 271(1)(c) calculation - addition made on the basis of estimation of gross profit based on average of last four years - Held that - As per the observations of the this Tribunal made in quantum appeal order, Ld.CIT(A) has calculated the understated income of the assessee on the basis of average GP rate worked out and the declared GP rate. Accordingly, the Ld. CIT(A) has directed the AO to calculate the penalty u/s 271(1)(c) of the Act on the difference between average GP and the GP declared by the assessee. Hence, we do not find any inference in the order of the Ld. CIT(A) so as to interfere with the same. We, therefore, uphold the findings of the Ld. CIT(A) and dismissed the appeal filed by the assessee. - Decided against assessee

Summary

Issues:
- Appeal against penalty order u/s 271(1)(c) of the Income Tax Act, 1961.
- Assessment u/s 143(3) r.w.s. 147, additions made, and penalty levied.
- Disallowance of expenses u/s 40(a)(ia) and addition on account of unaccounted sales.
- Quantum appeal order directions on penalty levy and computation.
- Calculation of understated income based on average GP rate and declared GP rate.

Analysis:
1. The appeal was filed against the penalty order u/s 271(1)(c) of the Income Tax Act, 1961, for the assessment year 2006-07. The Ld. CIT(A) partly allowed the appeal filed by the assessee against the penalty order dated 27/03/2012. The AO had completed the assessment u/s 143(3) r.w.s. 147, making various additions to the total income, including disallowance of expenses u/s 40(a)(ia) and addition on account of unaccounted sales. The Ld. CIT(A) confirmed certain additions, leading to the issuance of a show cause notice for penalty u/s 271(1)(c).

2. The appellant did not appear for the hearing, indicating a lack of interest in pursuing the appeal. The Tribunal proceeded ex parte against the appellant based on the material on record. The AO had levied a penalty u/s 271(1)(c) for deliberate wrong deductions by the assessee. The Ld. CIT(A) directed the AO to recompute the penalty based on the understated income, as per the quantum appeal order directions.

3. The Tribunal noted the observations in the quantum appeal order regarding unaccounted sales and the estimation of gross profit. The ITAT directed a reexamination of the GP rate and the need for a complete reconciliation between purchases and sales. The Ld. CIT(A) passed an order based on the ITAT directions, estimating the gross profit and calculating the understated income for penalty computation.

4. The Ld. CIT(A) calculated the understated income by considering the average GP rate of specific assessment years and comparing it with the declared GP rate of the appellant. The difference in GP rates was added to the appellant's income as additional income understated. The Tribunal upheld the findings of the Ld. CIT(A) and dismissed the appeal filed by the assessee for the assessment year 2006-07.

5. In conclusion, the Tribunal upheld the penalty levy based on the calculation of understated income using average GP rates and declared GP rates. The appeal against the penalty order u/s 271(1)(c) for the assessment year 2006-07 was dismissed by the Tribunal, affirming the Ld. CIT(A)'s order.