2023 (8) TMI 824 - AT - Income Tax

Penalty u/s. 271(1)(c) - amount received from Hindustan Unilever Ltd. which as per the AO has not been included in the return of income filed by the assessee and second being admittedly is an estimated addition - HELD THAT - It is an accepted fact that on an estimated addition, no penalty is leviable. It must also be mentioned here that the estimated disallowance as made by the AO is not on account of non-availability of evidences but because the expenses appear to be excessive. Clearly, the addition is nothing but an addition on presumption. Thus, no penalty in respect of addition is leviable and penalty as levied and confirmed by the ld CIT(A) in respect of above addition stands deleted. Coming to addition, a perusal of order of the AO in the penalty proceedings shows that the assessee has categorically made the submission that this amount has been reflected in the profit and loss account and TDS has been given effect in the return of income. Admittedly, penalty proceedings are separate and independent proceedings. AO had a duty to examine the same. AO has not dislodged the submission of the assessee. This being so, on this ground itself, the penalty as levied in respect of addition is liable to be cancelled and I do so. Further coming to the arguments of ld Sr DR that there has been concealment in respect of immovable property sold at Jeypore, it must be mentioned that there is no mention of such an addition in the assessment order. Next, coming to the submission of AR that show cause notice it has not been struck off, the relevant portion, whether it is for concealment of income or furnishing of inaccurate particulars - The penalty as levied by the AO and confirmed by the ld CIT(A) stands deleted. Decided in favour of assessee.

Summary

Issues:
The appeal challenges the levy of penalty under section 271(1)(c) of the Act for the assessment year 2015-16 based on additions made during the original assessment.

Addition of Rs. 97,961/-:
The penalty was confirmed for this amount, representing an estimated disallowance of expenses in the profit and loss account. However, as the addition was based on presumption and not lack of evidence, no penalty is leviable. Therefore, the penalty for this addition is deleted.

Addition of Rs. 1,04,912/-:
The penalty for this amount, received from Hindustan Unilever Ltd., was contested by the assessee, stating it was reflected in the profit and loss account with TDS effects. As penalty proceedings are separate, the Assessing Officer failed to disprove this submission. Consequently, the penalty for this addition is also cancelled.

Concealment of Income from Property Sale:
The revenue argued that there was concealment of income from the sale of immovable property at Jeypore. However, as this addition was not mentioned in the assessment order, the penalty cannot be upheld based on this ground.

Show Cause Notice Issue:
The Co-ordinate Bench emphasized the necessity of striking off inappropriate clauses in the show cause notice, citing relevant legal precedents. As the AO did not strike off inappropriate clauses in the notice, the penalty as levied and confirmed is deleted, following the principles laid down by the Hon'ble Supreme Court and the principle of consistency.

Decision:
The penalty levied under section 271(1)(c) for both additions is deleted, and the appeal of the assessee is allowed.