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TMI Blog2022 (11) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of penalty proceedings, the assessee offered to pay tax on the sum without answering the question posed to him. Therefore, it is not a case wherein a disclosure was voluntarily made, indeed the assessee accepted the differential amount of business profit earned by him only after the same was brought to surface owing to survey action u/s 133A otherwise actual business profits would have remained un-assessed and untaxed, if survey action could not have taken place and in any case, so-called voluntary disclosure of business profit by furnishing re-computation cannot alter the consequences in the light of decision of the Hon ble Apex Court in the similar facts and circumstances in MAK Data Pvt Ltd Vs CIT [ 2013 (11) TMI 14 - SUPREME COURT] Section 274 provides that, no order imposing a penalty shall be made unless the assessee has been heard or has been given a reasonable opportunity of being heard. In the present case, a penalty SCN was issued u/s 274 r.w.s. 271 and upon failure to respond to first SCN, the appellant was put to further notice which remained unattended, ad-idem, it clearly indicates that, the due sufficient opportunity of being heard was provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short PO ] of Asstt. Commission of Income Tax, Circle-12 Pune [for short AO ] dt.28/06/2018 u/s 271(1)(c) of the Act for the assessment year [for short AY ] 2015-16. 2. The extant appeal is to address sole dispute over applicability of 271(1)(c) penal provision, where the income is assessed on the basis of material impounded in a survey action u/s 133A, in variation to original return filed. 3. Before proceeding for adjudication, it is apropos to reproduce the grounds raised by the appellant, such as; 1. The learned CIT(A) erred in upholding the levy of penalty u/s 271(1)(c) of Rs.77,00,000/- in respect of addition of Rs.2,55,12,629/- made by the A.O. towards undisclosed business income on the ground that the assessee had concealed the particulars of his income without appreciating that no such penalty was leviable on facts and in law. 2. The learned CIT(A) failed to appreciate that the addition of Rs.2,55,12,629/- made in respect of alleged undisclosed business income was based on estimation basis and in view of the settled law that penalty u/s 271(1)(c) is not leviable on additions made on estimation basis, the levy of penalty in the instant case was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and failing to which the Ld. AO, in the light of explanation 1 to section 271(1)(c), by an order imposed a penalty of ₹76,80,877/- (rounded up to ₹77,00,000/-)equal to 100% of tax sought to be evaded on additional business income brought to tax and assessed u/s 143(3) of the Act., over above the income returned in original return of income filed by the appellant assessee. 4.3 Deliberating upon the material placed in an appeal before the first appellate authority [for short FAA ], the Ld. CIT(A) finding no infirmity with the levy, resounded the views of assessing officer in confirming the penalty in the light of plethora of judicial pronouncement. Aggrieved by the orders of tax authorities below, the appellant assessee brought up the matter before Tribunal with the grounds of appeal assailed herein before at para 3. 5. During the course of physical hearing, learned counsel for the assessee [for short AR ] in support of grounds raised, took us through the relevant facts of the case and claimed that, imposition of penalty suffers from the basis of estimated business income, which lacks the accuracy, though was admitted on oath by the appellant and therefore pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground to adjudicate is the applicability of 271(1)(c) penal provision for concealing the particulars of income, and to deal therewith, it is appropriate to quote the relevant text of penal provision first; 271. Failure to furnish returns, comply with notices, concealment of income, etc. (1) If the [Assessing] Officer or the [Commissioner (Appeals)] [or the Commissioner] in the course of any proceedings under this Act, is satisfied that any person- (a ) . . . . . (b ) . . . . . (c ) has concealed the particulars of his income or [* * *] furnished inaccurate particulars of [such income, or ( d) . . . . . he may direct that such person shall pay by way of penalty,- (i ) . . . . . (ii) . . . . . (iii) in the cases referred to in clause (c) [or clause (d)], [in addition to tax, if any, payable] by him, a sum which shall not be less than, but which shall not exceed [three times], the amount of tax sought to be evaded by reason of the concealment of particulars of his income or the furnishing of inaccurate particulars of such income. (Emphasis supplied) 8. From the records it transpired that, scru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, a penalty SCN was issued u/s 274 r.w.s. 271 of the Act, and upon failure to respond to first SCN, the appellant was put to further notice which remained unattended, ad-idem, it clearly indicates that, the due sufficient opportunity of being heard was provided to the appellant before proceeding to actual levy, ergo, the requirement of section 274 of the Act stands complied with and penal provisions being a civil liability calling no act of or ingredient for wilful concealment as laid by Hon ble Supreme Court vide 25 in the case of UOI Vs Dharmendra Textile Processors reported in 306 ITR 277 (SC). 11. Re-computation of business income upon the survey action in the light of impounded material spoke loudly about the conduct of the assessee, which could not be said to be anything else than disingenuous and thus filing of said recomputation of income did not obliterate the fact of the earlier act of concealment of particulars with a view to suppress the income and therefore was liable to penal action as contemplated in section 271(1)(c) of the Act, and we note that the tax authorities below ceased such finding adverse to the appellant, and is not shown to be perverse or ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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