2019 (5) TMI 1325 - AT - Income Tax

Penalty u/s 271(1)(c) - AO make addition of payment made towards sub brokerage by treating it as bogus and not incurred for the purpose of business - Tribunal deleted 90% of addition and sustain 10 % on estimated basis - HELD THAT - It is relevant to observe, against the aforesaid decision of the Tribunal, the Revenue went in appeal before the Hon'ble Jurisdictional High Court u/s 260A. While deciding the appeal of the Revenue, the Hon'ble Jurisdictional High Court not only sustained the decision of the Tribunal in allowing 90% of the sub brokerage payment but has also observed that there is no dispute regarding the genuineness of expenditure and has held that disallowance was purely on estimate basis. Thus, when the genuineness of the payment is not doubted and 90% of the expenditure has been allowed, penalty cannot be imposed u/s 271(1)(c) on the disallowance of balance 10% made purely on estimate basis. - Decided against revenue.

Summary

Issues:
- Challenge to order dated 8th February 2017 by Revenue for assessment year 2009-10
- Disallowance of sub-brokerage payment and interest on brokerage
- Imposition of penalty under section 271(1)(c) of the Act
- Appeal against penalty order
- Deletion of penalty on sub-brokerage payment disallowance
- Confirmation of penalty on interest on brokerage

Analysis:
1. The appeal was filed by the Revenue against the order dated 8th February 2017 for the assessment year 2009-10. The Assessing Officer disallowed the sub-brokerage payment and interest on brokerage claimed by the assessee, treating it as not incurred for business purposes. The assessee appealed to the Commissioner (Appeals) and then to the Tribunal. During the appeal process, the Assessing Officer imposed a penalty under section 271(1)(c) of the Act amounting to &8377; 61,38,852, which the assessee challenged before the first appellate authority.

2. The Commissioner (Appeals) found that the Tribunal had allowed 90% of the sub-brokerage payment claimed by the assessee and sustained the disallowance of 10% on an estimate basis. The penalty on the disallowed sub-brokerage payment was deleted by the Commissioner (Appeals) as it was not on account of doubt over the genuineness of the payment. However, the penalty on interest on brokerage was confirmed.

3. The Departmental Representative argued that the penalty should have been sustained on the part of the sub-brokerage payment disallowed by the Tribunal, alleging inaccurate particulars of income and income concealment. On the other hand, the Authorized Representative contended that the disallowance was not due to doubts about the genuineness of the payment, and thus, penalty imposition was unwarranted.

4. The Tribunal noted that the disallowance of sub-brokerage payment was based on an estimate, with 90% of the expenditure being allowed. The Hon'ble Jurisdictional High Court upheld the Tribunal's decision, emphasizing the genuineness of the expenditure and the estimate basis of disallowance. As the genuineness of the payment was not in question, and 90% of the expenditure was allowed, the Tribunal upheld the Commissioner (Appeals) decision to delete the penalty on the balance 10% disallowed purely on an estimate basis.

5. Consequently, the Tribunal dismissed the Revenue's appeal, upholding the Commissioner (Appeals) decision regarding the penalty on the sub-brokerage payment disallowance. The order was pronounced in the open court on 22nd May 2019.