2018 (10) TMI 1222 - AT - Income Tax

Levy of penalty u/s 271(1)(c) - Concealment of income - disclosure of income in pursuance to the survey conducted u/s 133A - Held that - The assessee did not disclose the income voluntarily but it was disclosed in pursuance to the survey conducted u/s 133A of the Act. During the course of survey, certain documents were found and seized which were sufficient enough to make the addition in the hands of the assessee. Therefore the assessee has disclosed income of ₹ 53,09,666/-. Thus, in our considered view had there not been survey u/s 133A of the Act, the assessee would not have offered such undisclosed income. Therefore, in our considered view, the penalty u/s 271(1)(c) was correctly levied by the authorities below. - Decided against assessee.

Summary

Issues:
1. Confirmation of penalty u/s 271(1)(c) of the Act for ?55,53,360.

Analysis:
The appeal was filed by the assessee against the appellate order of the Learned Commissioner of Income-Tax (Appeals)-II, Rajkot regarding the penalty imposed under section 271(1)(c) of the Act for the Assessment Year 2009-10. The primary issue raised by the assessee was the confirmation of the penalty amounting to ?55,53,360. The facts revealed that the assessee, a partnership firm engaged in Civil Construction, had undergone a survey under section 133A of the Act, resulting in the discovery of certain transactions not recorded in the books of accounts. The Assessing Officer (AO) estimated the profit at 20% of gross receipts, adding ?6,39,990 to the total income. Consequently, penalty proceedings were initiated under section 271(1)(c) of the Act for concealment of income. The AO, after due process, levied a penalty of ?17,93,140, being 100% of the tax sought to be evaded.

Upon appeal to the Commissioner, the assessee contended that if any penalty was to be levied, it should have been on the additional income declared in response to the notice under section 148 of the Act. The assessee argued that since the addition was based on estimation, no penalty should be imposed. However, the Commissioner upheld the penalty, emphasizing that the income offered by the assessee was only after detection by the department, not voluntarily disclosed. The Commissioner cited relevant case laws to support the decision, emphasizing the lack of voluntary disclosure by the assessee.

The Tribunal considered the contentions of both parties and reviewed the facts of the case. It was observed that the income was not voluntarily disclosed by the assessee but was a result of the survey conducted under section 133A of the Act. The Tribunal noted that the assessee would not have disclosed the income if not for the survey proceedings. Relying on the judgment of the Hon'ble Jurisdictional High Court, the Tribunal upheld the penalty imposed by the authorities below. The Tribunal found no reason to disturb the decision of the Commissioner and dismissed the appeal of the assessee, confirming the penalty under section 271(1)(c) of the Act for ?55,53,360.

In conclusion, the Tribunal upheld the penalty imposed on the assessee under section 271(1)(c) of the Act, emphasizing that the income was not voluntarily disclosed but was a result of the survey proceedings. The decision was supported by relevant case laws and the judgment of the Jurisdictional High Court, leading to the dismissal of the assessee's appeal.