2009 (1) TMI 529 - AT - Income Tax

Tribunal affirms tax penalty for estimated profits under Income-tax Act

The Tribunal upheld the CIT(A)'s findings in a tax penalty case. The assessee contested the penalty imposed under section 271(1)(c) of the Income-tax Act, ... Penalty - For concealment of income Issues Involved:1. Imposition of penalty under section 271(1)(c) of the Income-tax Act, 1961.2. Estimation of profits by the Assessing Officer.3. Rejection of books of account by the Assessing Officer.4. Discrepancies in the financial statements.5. Legal precedents and their applicability to the case.Detailed Analysis:1. Imposition of Penalty under Section 271(1)(c):The primary issue revolves around the penalty imposed under section 271(1)(c) of the Income-tax Act, 1961. The assessee contested the confirmation of this penalty by the Commissioner of Income-tax (Appeals) [CIT(A)], arguing that the penalty was imposed on profits estimated by the Assessing Officer (AO) at 3% of sales and other income, despite the assessee incurring a loss of Rs. 3,92,23,000. The revenue, on the other hand, argued that the CIT(A) erred by directing the AO to recompute the penalty, restricting it to the difference on account of the addition made to the profit by estimating at 3% of sales and other income after allowing depreciation.2. Estimation of Profits by the Assessing Officer:The AO estimated the profits at 3% of sales and other income due to discrepancies in the accounts. The income was initially determined at Rs. 60,45,922, which was later revised to Rs. 47,68,102 after an appeal. The AO levied a penalty of Rs. 2,02,35,907 under section 271(1)(c), citing various judicial precedents to support the imposition of penalty for concealment of income and furnishing inaccurate particulars.3. Rejection of Books of Account by the Assessing Officer:The AO rejected the books of account due to several discrepancies, including the unavailability of notes to the accounts, mismatched figures in the balance sheet, discrepancies in expenses reported in the auditor's report for nine months versus the profit and loss account for the whole year, and inconsistencies between the statutory report and the audit report. The assessee failed to reconcile these discrepancies despite multiple opportunities, leading to the rejection of the books and the estimation of profits.4. Discrepancies in the Financial Statements:The discrepancies highlighted by the AO included:- Notes to the accounts were not available.- Mismatched figures in the balance sheet.- Audited accounts were for nine months.- Expenses in the auditor's report for nine months exceeded those claimed in the profit and loss account for the whole year.- Discrepancies between the statutory report and the audit report.These discrepancies were not reconciled by the assessee, leading to the estimation of profits and the imposition of penalty.5. Legal Precedents and Their Applicability:The assessee and the revenue cited various judicial precedents to support their arguments. The assessee relied on several cases to argue against the imposition of penalty, including Sahyog Sahkari Shram Samvida Samiti Ltd. v. Asstt. CIT, CIT v. Arjun Prasad Ajit Kumar, and CIT v. Sangur Vanaspati Mills Ltd. However, the Tribunal found that the facts of these cases were distinguishable from the present case.The revenue relied on decisions such as CIT v. Gold Coin Health Food (P.) Ltd. and Union of India v. Dharmendra Textiles Processors, which supported the imposition of penalty even in cases where the returned income was a loss.Conclusion:After considering the rival submissions and relevant records, the Tribunal upheld the findings of the CIT(A). The Tribunal found that the discrepancies in the financial statements were specific and substantive, and the assessee failed to discharge the onus of reconciling these discrepancies. The Tribunal also noted that the penalty provisions under section 271(1)(c) are civil liabilities and do not require the establishment of mens rea (wilful concealment).The Tribunal concluded that the findings of the CIT(A) directing the AO to recompute the penalty, restricting it to the difference on account of the addition made to the profit by estimating at 3% of sales and other income after allowing depreciation, did not suffer from any infirmity. Consequently, both the appeals filed by the assessee and the revenue were dismissed.Final Judgment:Both the cross appeals were dismissed, upholding the CIT(A)'s order to recompute the penalty based on the estimated profits.