Goldstar Finvest Pvt. Ltd. Vs Commissioner of Income Tax (ITAT Mumbai)
ITAT Mumbai held that penalty u/s 271(1)(c) of the Income Tax Act unsustainable as entire addition is made on estimation basis and at no point of time it is proved that assessee has concealed the particulars of income or has furnished inaccurate particulars of income.
Facts- On the basis of completed assessment framed under section 143(3) read with 153C of the Income Tax Act, 1961 (for short ‘the Act’) determining the total income at Rs.4,63,769/- by making addition of the commission income @ 0.15% in case of assessee being an entry provider, penalty proceedings were initiated by way of issuance of notice under section 274 read with section 271 of the Income Tax Act.
Declining the contentions raised by the assessee that very initiation of penalty proceedings was bad in law as valid notice has not been issued to the assessee, the Assessing Officer (AO) reached the conclusion that the assessee had concealed correct nature/particulars of its income and thereby levied the penalty @ 100% of the tax on the income sought to be evaded under Section 271(1)(c) of the Income Tax Act.
Conclusion- We are of the considered view that when entire addition in this case is on estimation basis and at no point of time Revenue Authorities have reached the specific conclusion that the assessee has concealed the particulars of income or has furnished inaccurate particulars of income rather made the addition on the basis of information received from Sales Tax Department without conducting any independent enquiry as to the alleged bogus purchases, the penalty levied by the AO and confirmed by the CIT(A) is not sustainable in the eyes of law.
So in view of what has been discussed above, we are of the considered view that penalty levied by the AO and confirmed by the Ld. CIT(A) is not sustainable in the eyes of law, hence ordered to be deleted.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
The appellant, M/s. Goldstar Finvest Pvt. Ltd. (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 27.11.2013 passed by Commissioner of Income Tax (Appeals), Mumbai [hereinafter referred to as the CIT(A)] qua the assessment year 2002-03 on the grounds inter-alia that :-
“1. The learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the order passed by the Assessing Officer u/s 271(1)(C) of the Act.
2. The learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the order of Assessing Officer without complying with the principles of natural justice.
3. The learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming penalty u/s 271(1)(C) of the Act at 2,50,000/-
4. The appellant craves leave to add to, alter, amend and / or delete in all the foregoing grounds of appeal.”
2. Briefly stated facts necessary for consideration and adjudication of the issues at hand are : on the basis of completed assessment framed under section 143(3) read with 153C of the Income Tax Act, 1961 (for short ‘the Act’) determining the total income at Rs.4,63,769/- by making addition of the commission income @ 0.15% in case of assessee being an entry provider, penalty proceedings were initiated by way of issuance of notice under section 274 read with section 271 of the Act.
3. Declining the contentions raised by the assessee that very initiation of penalty proceedings were bad in law as valid notice has not been issued to the assessee, the Assessing Officer (AO) reached the conclusion that the assessee has concealed correct nature/particulars of its income and thereby levied the penalty of 6,49,788/- @ 100% of the tax on the income sought to be evaded under section 271(1)(c) of the Act.
4. The assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has confirmed the penalty levied by the AO by dismissing the appeal. Feeling aggrieved with the impugned order passed by the Ld. CIT(A) the assessee has come up before the Tribunal by way of filing the present appeal.
5. We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable
6. Undisputedly the addition in this case was made on account of commission income earned by the assessee for providing bogus entries to the different persons @ 0.15%. It is also not in dispute that commission income estimated by the AO as well as the CIT(A) at 2% was further reduced by the Tribunal to 0.15%.
7. In the backdrop of the aforesaid facts and circumstances of the case the order passed by the lower revenue authorities and arguments addressed by the Ld. Authorized Representatives of the parties to the appeal, the sole question arises for determination in this case is:-
“As to whether the assessee has concealed particulars of income or has furnished inaccurate particulars of such income during assessment proceedings?”
8. AR for the assessee challenging the impugned order contended that the AO in order to initiate the penalty proceedings has prima-facie failed to issue a valid show cause notice under section 271(1)(c) read with section 274 of the Act by invoking specific limb of section 271(1)(c) of the Act as to if the assessee has concealed the particulars of income or has furnished inaccurate particulars of such income during the assessment proceedings. The Ld. A.R. for the assessee further contended that addition in this case has merely been made on the basis of estimation and as such penalty under section 271(1)(c) of the Act is not leviable and relied upon the decision rendered by Hon’ble Bombay High Court Full Bench in case of Md. Farhan A Sheikh vs. ACIT (2021) 434 ITR 1(FB-Bombay).
9. Before proceeding further we would extract the notice issuedby the AO under section 271 of the Act for ready perusal as under:
