2021 (5) TMI 764 - AT - Income Tax

Penalty u/s 271(1)(c) - addition of commission - HELD THAT - From the perusal of the assessment order, it is clear that the addition was made merely because the assessee was unable to substantiate the rendition services by the commission agent in connection with the purchase of Tobacco from Shri Narayan Tobacco, Gopalpura, Dist. Anand, Gujarat. There is no positive evidence on record to say that the commission agent had not rendered any service, there is no the requirement under law that the name of the commission agent should be mentioned in the purchase bills. Mere inability to substantiate the claim does not entail the levy of penalty. It is settled proposition of law that the penalty cannot be levied for mere inability to substantiate the claim in the absence of any positive evidence to the contrary. Reliance in this regard can be placed on the decision of Hon ble Supreme Court in the case of CIT vs. Reliance Petroproducts Pvt. Ltd., 2010 (3) TMI 80 - SUPREME COURT We are of the considered opinion that the impugned order of penalty cannot be sustained in the eyes of law. Accordingly, the orders of the lower authorities are set-aside and we direct the Assessing Officer to delete the penalty levied u/s 271(1)(c) - Decided in favour of assessee.

Summary

Issues:
Appeal against penalty for disallowance of commission

Analysis:
The appeal was filed against the order of the Commissioner of Income Tax (Appeals) for the assessment year 2010-11. The appellant raised several grounds of appeal related to the disallowance of commission. The Assessing Officer had disallowed a commission amount paid to an individual on the grounds that it was on the higher side, not a common trade practice, and lacked confirmation from the supplier. The Commissioner partly allowed the appeal, deleting some additions but confirming the disallowance of commission and excessive salary. Subsequently, penalty proceedings were initiated under section 271(1)(c) for furnishing inaccurate income particulars. The appellant provided explanations, but the penalty was levied for alleged concealment of income. On appeal, the Commissioner deleted the penalty for excessive salary but confirmed it for the commission. The appellant then appealed to the Tribunal.

The Tribunal noted that the Assessing Officer disallowed the commission as the appellant could not prove the services rendered by the commission agent. The Commissioner confirmed the penalty based on lack of proof of services. However, the Tribunal found that mere inability to substantiate a claim does not warrant a penalty without positive evidence to the contrary. Citing the decision in CIT vs. Reliance Petroproducts Pvt. Ltd., the Tribunal concluded that penalty cannot be imposed solely for inability to substantiate a claim. Therefore, the Tribunal set aside the penalty order and directed the Assessing Officer to delete the penalty under section 271(1)(c) of the Act. As a result, the grounds raised by the appellant were allowed, and the appeal was granted in favor of the assessee.

In summary, the Tribunal overturned the penalty imposed on the appellant for the disallowance of commission, emphasizing that mere inability to substantiate a claim does not justify a penalty without positive evidence to the contrary. The Tribunal's decision was based on legal principles and the lack of requirement to mention the commission agent's name in purchase bills. The Tribunal's analysis focused on the lack of concrete evidence to support the penalty, leading to the decision to set aside the penalty order and direct the deletion of the penalty under section 271(1)(c) of the Act.