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2006 (5) TMI 172 - AT - Income TaxPenalty levied u/s 271(1)(c) - For Concealment Of Income - Addition on account of GP - Unexplained investment in deposit - Disallowance of depreciation - Third Member Order - HELD THAT - ld. AM of the Bench came to the conclusion that the CIT(A) was justified in holding that no penalty is leviable in respect of the gross profit addition, disallowance of depreciation and as well with regard to the deposi ld. Judicial Member held otherwise that the CIT(A) was unjustified in deleting the penalty with respect to these amounts. Third Member, agreed with the view of the ld. AM on the issues referred to him. Thus, by majority view, we hold that the CIT(A) was not justified in confirming the penalty levied by the Assessing Officer u/s 271(1)(c) of the Act in respect of the amount on account of alleged undisclosed investment by the assessee in Balaji Apartments, and the CIT(A) was justified in deleting the penalty levied by the Assessing Officer u/s 271(1)(c) in respect of the addition on account of gross profit, unexplained investment in deposit and disallowance of depreciation. In the result, the appeal filed by the assessee is allowed and the appeal filed by the Revenue is dismissed.
Issues Involved:
1. Gross Profit (G.P.) Addition. 2. Unexplained Investment in Deposit. 3. Disallowance of Depreciation. 4. Penalty under Section 271(1)(c) of the Income-tax Act. Detailed Analysis: 1. Gross Profit (G.P.) Addition: The Assessing Officer (AO) made a G.P. addition of Rs. 7,36,323/- based on certain diaries found during a search, which indicated discrepancies in the assessee's proprietary business of M/s. Shree Balaji Traders. The AO initiated penalty proceedings for this addition. The CIT(A) held that no penalty was leviable in respect of the G.P. addition, as there was no evidence of suppression of sales or inflation of purchases. The CIT(A) relied on the Bombay High Court decision in CIT v. Devandas Perumal & Co. and the Punjab & Haryana High Court decision in CIT v. Metal Products of India, which held that no penalty is leviable merely on account of profit estimates where no suppression of sales or inflation of purchases is detected. The Tribunal concurred with the CIT(A) that penalty under section 271(1)(c) is not leviable in respect of estimated additions. 2. Unexplained Investment in Deposit: The AO added Rs. 40,000/- to the assessee's income, representing a cash deposit not reflected in the books of account. The CIT(A) observed that the deposit was made in November 1987 and should have been added in the assessment year 1988-89, not 1989-90. Therefore, the CIT(A) held that no penalty was leviable with reference to this sum. The Tribunal upheld the CIT(A)'s decision, agreeing that the addition did not pertain to the assessment year 1989-90. 3. Disallowance of Depreciation: The AO disallowed depreciation of Rs. 2,30,374/- on a truck, arguing that there was no evidence the truck was used for business purposes, despite being registered with the R.T. authorities. The CIT(A) noted that the penalty was imposed on the cost of the asset, not on depreciation, and held that the truck was ready for use once registered. The CIT(A) relied on the Madras High Court decision in CIT v. Vayithri Plantations Ltd. and the Delhi High Court decision in Capital Bus Service (P.) Ltd. v. CIT. The Tribunal agreed with the CIT(A) that no penalty was leviable for the disallowance of depreciation. 4. Penalty under Section 271(1)(c) of the Income-tax Act: The AO imposed a penalty of Rs. 10 lakhs, while the minimum penalty was Rs. 5,24,756/-. The CIT(A) confirmed the penalty only for the amount of Rs. 3,00,704/- claimed to be capitalized by the assessee with reference to his investment in Balaji Apartments. The CIT(A) directed that penalty should be calculated at the minimum level. The Tribunal, considering the rival submissions and the facts on record, held that the CIT(A) rightly deleted the penalty in respect of the G.P. addition and the unexplained investment in deposit. The Tribunal also upheld the CIT(A)'s decision to delete the penalty for the disallowance of depreciation. However, the Tribunal deleted the penalty sustained by the CIT(A) in respect of the amount of Rs. 3,00,704/-. Third Member Order: Due to a difference of opinion between the Accountant Member and the Judicial Member, the matter was referred to a Third Member. The Third Member agreed with the Accountant Member's view that no penalty under section 271(1)(c) is leviable for the G.P. addition, unexplained investment in deposit, and disallowance of depreciation. The Third Member also concurred that the penalty sustained by the CIT(A) in respect of the amount of Rs. 3,00,704/- should be deleted. Final Order: By majority view, the Tribunal held that the CIT(A) was not justified in confirming the penalty levied by the AO under section 271(1)(c) in respect of the amount of Rs. 3,00,704/- on account of alleged undisclosed investment by the assessee in Balaji Apartments. The Tribunal also held that the CIT(A) was justified in deleting the penalty levied by the AO under section 271(1)(c) in respect of the G.P. addition, unexplained investment in deposit, and disallowance of depreciation. The assessee's appeal was allowed, and the Revenue's appeal was dismissed.
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