2017 (9) TMI 580 - AT - Income Tax

Penalty u/s 271(1)(c) - providing accommodation entries to tax evaders - Estimated Commission Income - Concealment of Income - CIT(A) confirmed penalty restricted to tax sought to be evaded - Held that - There is no ambiguity in the mind of the Assessing Officer as to whether he intends to impose the penalty for concealment of income or for furnishing inaccurate particulars. The conclusions are firm that the assessee has concealed particulars of income. - Levy of penalty confirmed. Also the appeal of the Revenue is not maintainable on account of low tax effect in view of CBDT Circular No.21 of 2015 dated 10.12.2015. Higher rate of penalty should not be imposed upon the assessee merely on account of assessee s non-appearance in the penalty proceedings. There should be some other strong logic. No merit in the appeal of the Revenue.

Summary

Issues Involved:
1. Imposition of penalty under Section 271(1)(c) of the Income-tax Act, 1961.
2. Estimation of income and its impact on penalty.
3. Procedural validity of the show-cause notice.
4. Determination of the correct amount of income for penalty calculation.

Issue-wise Detailed Analysis:

1. Imposition of Penalty under Section 271(1)(c) of the Income-tax Act, 1961:
The Assessing Officer (AO) imposed a penalty of ?15,00,000 on the assessee for concealing income under Section 271(1)(c) of the Income-tax Act, 1961. The penalty was based on the concealed commission income of ?26,35,726. The CIT(A) confirmed the penalty but reduced it to the minimum amount of tax sought to be evaded, i.e., ?11,11,087, instead of the higher penalty imposed by the AO.

2. Estimation of Income and Its Impact on Penalty:
The assessee argued that the income was determined on an estimate basis and, therefore, no penalty should be imposed. The CIT(A) concurred with the AO that the assessee deserved to be penalized but accepted the contention that the income was estimated and directed the AO to calculate the penalty based on the correct figure of estimated income. The CIT(A) noted that the income was estimated due to the non-cooperative attitude of the assessee and the nature of the business, which involved providing accommodation entries.

3. Procedural Validity of the Show-Cause Notice:
The assessee raised an additional ground, arguing that the show-cause notice did not specify whether the penalty was for furnishing inaccurate particulars or for concealing income. The Tribunal noted that the show-cause notice was not replied to by the assessee and that the penalty order clearly stated that the penalty was for concealment of income. The Tribunal referred to the Gujarat High Court decision in Snita Transport (P.) Ltd. vs. ACIT, which allowed the use of "and/or" in show-cause notices and concluded that there was no procedural irregularity that would invalidate the penalty proceedings.

4. Determination of the Correct Amount of Income for Penalty Calculation:
The AO initially computed the income based on bank withdrawals, which was later found to be incorrect. The CIT(A) directed the AO to recalculate the income correctly, which was determined to be ?19,85,089 instead of ?26,35,726. The penalty was then to be calculated at 100% of the tax sought to be evaded on this corrected income.

Conclusion:
The Tribunal upheld the CIT(A)'s decision to impose a penalty at the minimum amount of tax sought to be evaded, confirming that the penalty was justified due to the assessee's involvement in providing accommodation entries and causing substantial revenue loss. The Tribunal dismissed both the assessee's and the Revenue's appeals, noting that the Revenue's appeal was also not maintainable due to the low tax effect as per the CBDT Circular No.21 of 2015. The final order was pronounced on 08th September 2017 at Ahmedabad.