2018 (11) TMI 1254 - HC - Income Tax

Block assessment - Levy of income tax only on 15% of the total receipts disclosed in proceedings under Section 158BC - Held that - Sub-section (2) of Section 158B which defines undisclosed income as including inter alia any income based on an entry in the books of accounts or other documents or transactions representing whole or part of the income, which has not been or would not have been disclosed for the purposes of this Act. The provision does not permit tax to be levied on the entire receipt of money by an assessee and also does not deem undisclosed income to be the entire undisclosed receipts, revealed on search or otherwise. Here, the sale consideration, which was detected on search and seizure, was not reflected in the books of accounts nor the profit returned as income for the subject years. The sale consideration was also for the purchase of apartments in different complexes, the development of which was promoted by the respondent/assessee. The income of the assessee, which stood undisclosed, has to be determined for the purpose of levying income tax. The Tribunal, after looking into the net profit of the assessee in the different projects, directed 15% of the total undisclosed receipts to be taken as the undisclosed income. We are of the opinion that the said direction was perfectly in tune with the provision under Section 150BB and Section 158BH, which specifies that unless otherwise provided all the provisions of the Act, applicable to assessments under Chapter XIVB. - Decided in favour of the assessee Levy of penalty under Section 158BFA - Held that - What is to be looked at is whether the returns filed under Section 158BC, for each of the assessment years, in the block period conceded income less than that determined finally in the block assessment. As of now the Tribunal had set aside the determination in assessment, levying tax on the entire undisclosed receipts in the respective years and directed determination of income at 15% of the undisclosed receipts. We have upheld the order of the Tribunal and rejected the appeal of the Revenue. Hence a re-computation of the undisclosed income is warranted. Penalty can be imposed only on the excess amounts determined @ 15% of the undisclosed receipts, from that conceded in the returns filed under Section 158BC. We hence answer the question of law in favour of the Revenue and against the assessee

Summary

Issues:
1. Assessment proceedings: Whether the Tribunal correctly directed the levy of income tax on only 15% of the total receipts disclosed under Section 158BC of the Income Tax Act?
2. Penalty proceedings: Has the Tribunal erred in setting aside the penalty under Section 158BFA of the Act, considering it a quasi-criminal proceeding?

Assessment Proceedings Analysis:
In the assessment proceedings, the undisclosed receipts recovered from an architect and builder were the focus. The Assessing Officer treated the entire sale consideration received as undisclosed income and levied tax on it. The Tribunal, however, directed that only 15% of the total sales receipts be considered for tax purposes based on the net profit from projects. This decision was upheld citing Section 158B of the Act, which defines undisclosed income. The Court agreed that the direction was in line with the Act and rejected the Revenue's appeal.

Penalty Proceedings Analysis:
Regarding penalty proceedings, the Court analyzed the penalty provision under Section 158BFA of the Act. It was noted that the penalty provision is not a quasi-criminal proceeding, as established in previous legal cases. The Court emphasized that penalty could only be imposed on income not disclosed in returns. The Court found that penalty could be imposed only on the excess amounts determined at 15% of undisclosed receipts, beyond what was conceded in the returns filed under Section 158BC. The Court answered the question of law in favor of the Revenue and allowed a remand for computation and determination of income as directed by the Tribunal, along with the imposition of penalty under specific circumstances outlined in the statutory provision.

In conclusion, the Court upheld the Tribunal's decision on assessment proceedings and allowed a remand for computation and imposition of penalty in the penalty proceedings, answering the issues in favor of the assessee and the Revenue, respectively.