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TMI Blog2014 (11) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. CIT (A) cancelling the penalty of Rs. 4,95,410/- levied u/s.271(1)(c) of the I.T. Act holding that since no return of income had been filed by the assessee, the assessee could not be penalized for concealment of income or furnishing of inaccurate particulars of income in terms of section 271(1)(c) of the I.T. Act and further holding that since the income is assessed on estimate basis penalty for concealment of income is not leviable, ignoring the fact that the inaction of not filing return of income itself can be considered as act of concealment of particulars of income, thus, provisions of section 27(1)(c) is attracted on the facts of the case. It is submitted that the decision of the Hon'ble ITAT is against the objectives of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, the inaction of not filing return of income itself can be considered as act of concealment of particulars of income. Thus, provision of section 271(1)(c) is attracted on the facts of the case. It is also pertinent to mention here that an assessee not filing the return of income and not showing the income therein cannot be better off or in advantageous position than the person filing the return of income and not showing the correct income in the return. Both the persons are equally responsible for concealment of particulars of income. Thus, even though Explanation 3 to section 271(1)(c) is not attracted, the provision of section itself, irrespective of any explanation, is attracted." 2. While admitting the matter on 19.09.2005, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The concealment of income can be only with reference to return of income filed. In absence of any return filed, it cannot be held that assessee has concealed the particulars of income. It also held that since the income is assessed on estimate basis penalty for concealment of income is not leviable and hence, this Appeal. 4. The question of law, i.e. 'Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in law in holding that since no return of income had been filed by the assessee, no penalty could be levied under Section 271(1)(c) of the Income Tax, 1961 for concealment of income', is answered against the revenue for the following reasons, which has been elaborately discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of estimates, the penalty for concealment is not leviable. Moreover the decision relied upon by the assessing officer was in respect of the purchase of property and not stocks and therefore ratio laid down in that case is not applicable to the facts of the appellant's case. For all these reasons therefore in my opinion, there is no reason to levy a penalty u/s 271(1)(c) of the I.T. Act." 6. The penalties were upheld as it was only estimated value on which estimates of income tax was made and the books of accounts were rejected. There was no scope to levy the penalty under Section 271(1)(c), the appellant had been assessed by the Income Tax. The Tribunal has very rightly considered that both the additions are on an estimated basis. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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