2012 (10) TMI 850 - AT - Income Tax

Penalty u/s 271(1)(c) - difference in original return and revised return - Held that - Penalty was imposed due to failure of the assessee to explain the difference in difference in profit figures in the two returns. The explanation before CIT(A) that revised return was without its consent is of no force also the assessee had filed original return and had revised it by lowering the profits and on explanation it could not explain the difference. Thus it can be opined that the assessee took this plea before CIT(A) as it was unable to explain the difference in expenses. Therefore, the assessee was liable to penalty. Though AO had imposed the penalty for a lump sum amount of Rs.5,00,000/-, CIT(A) modified it and directed the AO to calculate the penalty on the basis of tax ought to be evaded. No infirmity in the order of CIT(A) except regarding quantum of penalty which should be calculated on the basis of difference between figures of profits between two profits & loss accounts. Thus direction to AO to calculate penalty accordingly - partly in favour of assessee.

Summary

Issues:
Imposition of penalty under section 271(1)(c) for concealment of income based on revised return, failure to explain difference in profit figures, applicability of penalty when income is estimated, and calculation of penalty based on tax sought to be evaded.

Imposition of Penalty under Section 271(1)(c):
The case involved an appeal against the imposition of a penalty under section 271(1)(c) by the Assessing Officer, amounting to Rs. 5,00,000, due to concealment of income based on the revised return filed by the assessee. The Assessing Officer found discrepancies in the profit figures between the original and revised returns, leading to the imposition of the penalty. The assessee contended that the revised return was filed without its consent and pleaded no mala fide intention. However, the authorities upheld the penalty, emphasizing the failure of the assessee to explain the differences in the profit figures, leading to the confirmation of the penalty but with a direction to re-calculate it based on the tax sought to be evaded.

Estimation of Income and Penalty Imposition:
The appellant argued that as the addition was made based on the estimation of income, the penalty under section 271(1)(c) should not be imposed. The appellant relied on various judgments stating that where profits or income are estimated, the penalty cannot be levied. However, the authorities maintained that the penalty was justified due to the failure of the assessee to explain the discrepancies in the profit figures between the two returns. The Tribunal noted that the penalty was imposed not solely based on the revised return but also due to the lack of explanation for the differences in expenses, leading to the confirmation of the penalty albeit with a modification in the calculation methodology.

Judicial Precedents and Penalty Imposition:
The Tribunal considered judicial precedents where penalties were upheld in cases where income was estimated or where discrepancies existed between original and revised returns. The Tribunal differentiated the present case from those where income was estimated solely based on percentage calculations, emphasizing that in this case, the assessee failed to explain the differences in profit figures between the returns. Referring to cases where penalties were upheld for suppression of income or incorrect reporting, the Tribunal concluded that the penalty under section 271(1)(c) was justified in the present case due to the failure to provide a satisfactory explanation for the discrepancies.

Calculation of Penalty based on Tax Sought to be Evaded:
The Tribunal directed the Assessing Officer to recalculate the penalty based on the tax sought to be evaded, which was determined as the difference in profit figures between the two Profit & Loss Accounts that the assessee failed to explain. The Tribunal found no infirmity in the order of the CIT(A) except for the quantum of penalty, which was to be adjusted based on the tax evasion amount. Consequently, the appeal was partly allowed, with instructions for the penalty calculation adjustment.

This detailed analysis of the judgment highlights the key issues, arguments presented, legal principles applied, and the Tribunal's decision regarding the imposition of the penalty under section 271(1)(c) in the context of income concealment and estimation.