2022 (4) TMI 101 - AT - Income Tax

Levying penalty u/s.271(1)(c) - addition towards suppression of sale and addition u/s. 68 of bogus trading liability - HELD THAT - Addition initially made by the Assessing Officer, had pursuant to the matter being set-aside by the Tribunal to the file of the Assessing Officer for fresh adjudication 2018 (1) TMI 1678 - ITAT RAIPUR does no more survive, as the explanation of the assessee as regards both of the issues was accepted by the AO in the course of the set-aside proceedings, therefore, penalty that was imposed u/s. 271(1)(c) of the Act as regards the said issues have to meet the same fate and has to be knocked down. Penalty u/s.271(1)(c) on account of ad hoc disallowance out of manufacturing expenses for want of proper vouchers and necessary verification, we are of the considered view, that as the said disallowance was made on an estimate basis and not on the basis of any concrete evidence which would irrefutably prove to the hilt raising of a bogus claim of expenditure by the assessee, therefore, no penalty u/s. 271(1)(c) of the Act as regards the same can be sustained. We vacate the penalty imposed by the Assessing Officer u/s. 271(1)(c) of the Act. Appeal of assessee allowed.

Summary

Issues:
1. Confirmation of penalty under Sec. 271(1)(c) by CIT(Appeal)
2. Opportunity not provided to appellant by AO
3. Penalty on additions made by AO
4. Keeping penalty proceedings pending

Issue 1: Confirmation of penalty under Sec. 271(1)(c) by CIT(Appeal)
The appeal was against the order of the CIT(Appeal) confirming the penalty imposed by the Assessing Officer under Sec. 271(1)(c) of the Income-tax Act, 1961. The appellant challenged the confirmation of the penalty amounting to &8377; 11,15,482. The grounds of appeal included contentions that the CIT(Appeal) erred in confirming the penalty without providing an opportunity to the appellant and in treating certain amounts as suppressed sales and bogus trading liability. The appellant prayed for the deletion of the penalty.

Issue 2: Opportunity not provided to appellant by AO
The appellant argued that the penalty order passed by the AO did not specify the default, thus depriving the appellant of an opportunity to present their case effectively. This lack of clarity in the notice issued by the AO was highlighted as a procedural flaw in the penalty imposition process.

Issue 3: Penalty on additions made by AO
The AO had imposed a penalty of &8377; 11,15,482 based on additions and disallowances made during the original assessment, including amounts related to advances/liabilities, suppression of sales, and manufacturing expenses. The CIT(Appeal) upheld the AO's view, leading to the imposition of the penalty. However, subsequent developments in the quantum appeal resulted in the acceptance of the appellant's explanations regarding the suppressed sales and bogus trading liability. As a result, the Tribunal held that the penalty imposed on these issues could not be sustained.

Issue 4: Keeping penalty proceedings pending
The appellant raised concerns about the penalty proceedings being kept pending while the quantum appeal was being addressed. This situation was seen as promoting unnecessary litigation on the same issues. The appellant requested the setting aside of the CIT(Appeal) order in this regard.

In the judgment, the Tribunal reviewed the arguments presented by both parties and examined the orders of the lower authorities. The Tribunal noted that the additions initially made by the AO had been accepted by the appellant in subsequent proceedings, leading to the conclusion that the penalties imposed on those issues could not be upheld. Regarding the ad hoc disallowance of manufacturing expenses, the Tribunal found that as it was based on estimates and lacked concrete evidence of a bogus claim, no penalty could be sustained in this regard. Consequently, the Tribunal vacated the penalty of &8377; 11,15,482 imposed by the AO under Sec. 271(1)(c) of the Act. The appeal of the assessee was allowed based on these observations.