2020 (4) TMI 525 - AT - Income Tax

Penalty u/s 271(1)(c) - estimated income only due to proceeding u/s 132 - assessee has disclosed the commission income earned from accommodation entries provided by him which varies from transaction to transaction between @ 0.02% to 0.05% and assessee came forward voluntarily offered 0.02% as commission income - HELD THAT - Assessee has completely gave the information which is agreeable to the AO and cooperated to complete the assessment with real income. Accordingly, AO made reasonable estimation on the profit. Penalty cannot be imposed when the income of the assessee is estimated. Defective notice u/s 274 - as per assessee notice issued by the AO is defective since AO has not brought of record the reason for levy of penalty - HELD THAT - We notice that in the assessment order, AO has made it clear that penalty proceedings are initiated separately for furnishing inaccurate particulars of income, therefore the AO has already indicated that why the penalty proceedings are initiated. Therefore, we reject the contention of the assessee that notice is defective.

Summary

Issues Involved:
1. Voluntary disclosure of unaccounted income.
2. Estimation of commission income.
3. Levy of penalty under Section 271(1)(c) of the Income Tax Act.
4. Defective notice under Section 274 of the Income Tax Act.

Detailed Analysis:

Voluntary Disclosure of Unaccounted Income:
The assessee contended that the disclosure of unaccounted income was made voluntarily. The Tribunal, however, noted that the disclosure was made only after the assessee was confronted with incriminating evidence during search and survey actions. The Tribunal referenced several cases, including *K.L. Swamy Vs. CIT* and *P.C. Joseph & Bros. Vs. CIT*, to establish that disclosures made after detection by the department cannot be considered voluntary. Therefore, the claim of voluntary disclosure was rejected.

Estimation of Commission Income:
The assessee had admitted to earning commission income from accommodation entries at rates varying between 0.02% to 0.05%. The Assessing Officer (AO) estimated the commission income at 0.03%, which the assessee accepted. The Tribunal noted that the assessee had cooperated with the AO and provided all necessary information for a reasonable estimation. The Tribunal distinguished this case from *Kalindi Rail Nirman Engg. Ltd.*, where the assessee did not cooperate, and the books of accounts were unreliable.

Levy of Penalty under Section 271(1)(c):
The AO levied a penalty of ?2,30,930 under Section 271(1)(c) for concealment of income. The Tribunal examined whether penalty could be imposed on income estimated by the AO. The Tribunal referenced multiple case laws, including *Harigopal Singh vs. CIT* and *CIT vs. Smt. K. Meenakshi Kutty*, which held that penalty cannot be imposed on income estimated by the AO. The Tribunal concluded that since the income was estimated and the assessee had cooperated, the penalty was not justified and thus deleted it.

Defective Notice under Section 274:
The assessee argued that the notice issued under Section 274 was defective as it did not specify the grounds for the penalty. The Tribunal examined the notice and found that the AO had clearly indicated that the penalty proceedings were initiated for furnishing inaccurate particulars of income. Therefore, the Tribunal rejected the contention that the notice was defective.

Conclusion:
The Tribunal allowed the appeals filed by the assessee, deleting the penalty levied under Section 271(1)(c) on the grounds that the income was estimated and the assessee had cooperated with the AO. The issue of defective notice under Section 274 was also dismissed. Consequently, all the appeals were allowed in favor of the assessee.