2018 (5) TMI 1589 - AT - Income Tax

Tribunal rules penalty unsustainable due to ambiguity, upholds penalty, dismisses cross objection, partly allows appeal.

The Tribunal held that the penalty levied under section 271(1)(c) for A.Y. 2008-09 was unsustainable due to ambiguity in the application of the relevant ... Levy of penalty u/s 271(1)(c) - Held that:- AO had failed to strike off the irrelevant default in the show cause notice - assessee is not informed and rather is left guessing of the default/defaults for which he is being proceeded against for - thus AO had clearly failed to discharge his statutory obligation of fairly putting the assessee to notice as regards the default/defaults for which he was being proceeded against - hence penalty cannot be sustained - decided in favor of assessee Rejection of books of account u/s 145(3) - disallowance of exemption u/s 10B relating to interest income from fixed deposits, sale of scrap and other miscellaneous business receipts- addition u/s 41(1) on account of non-genuine creditors - Held that:- assessee has treated the said income as business income and claimed deduction u/s 10B - relying on the judgment of Apex Court in the case of Pandian Chemicals Ltd. 2003 (4) TMI 3 - SUPREME COURT -assessee's claim is denied - Decided against the assessee Additions u/s 41(1) - balances lying with the sundry creditors - Held that:- assessee is directed to file the required evidences to demonstrate the credit balances of the sundry creditors - AO shall grant reasonable opportunity of being heard to the assessee in accordance with set principles of natural justice - allowed for statistical purposes. Issues Involved:1. Penalty levied under section 271(1)(c) for A.Y. 2008-09.2. Cross Objection by the assessee related to ITA No.949/PUN/2016.3. Additions and disallowances for A.Y. 2010-11.Detailed Analysis:1. Penalty Levied Under Section 271(1)(c) for A.Y. 2008-09:The main issue revolves around the penalty levied by the Assessing Officer (AO) under section 271(1)(c) of the Income Tax Act, 1961. The AO had levied a penalty of Rs. 17,23,306 for concealment of particulars of income, which was later reduced by the CIT(A) to Rs. 5,65,685. The assessee argued that the penalty proceedings were initiated on one limb and levied on another, making the penalty unsustainable in law. The Tribunal found that the AO did not have clarity regarding the applicable limb of clause (c) of section 271(1) and suffered from ambiguity. The Tribunal referenced various judgments, including those of the Hon’ble jurisdictional High Court and the Hon’ble Karnataka High Court, to support its decision. Consequently, the Tribunal held that the penalty levied by the AO was unsustainable on technical grounds and directed the AO to delete the penalty. Thus, the appeal of the assessee was allowed.2. Cross Objection by the Assessee Related to ITA No.949/PUN/2016:The issues raised in the Cross Objection were identical to those in ITA No.996/PUN/2016. The Tribunal, therefore, dismissed the Cross Objection as academic.3. Additions and Disallowances for A.Y. 2010-11:a. Revenue’s Appeal (ITA No.949/PUN/2016):The Revenue contested the deletion of an addition of Rs. 5,05,18,770 made on account of additional production. The AO had rejected the book results under section 145(3) without pointing out any material discrepancy. The CIT(A) found that the AO’s addition was based on surmises and estimations without any evidence of suppressed sales. The Tribunal upheld the CIT(A)’s decision, noting that the AO’s method of calculating additional production was unsound and lacked evidence. The grounds raised by the Revenue were dismissed.b. Assessee’s Appeal (ITA No.996/PUN/2016):- Ground No. 1: The assessee contested the denial of deduction under section 10B for interest earned from fixed deposits and other deposits, and miscellaneous income. The CIT(A) had denied the deduction based on judgments from the Apex Court. The Tribunal found the CIT(A)’s decision fair and reasonable and dismissed this ground.- Ground No. 2: The assessee challenged the addition of Rs. 18,20,051 under section 41(1) for balances with sundry creditors. The AO had made the addition due to unserved notices under section 133(6). The Tribunal accepted the assessee’s request to remand the issue to the AO for proper verification, directing the AO to grant a reasonable opportunity for the assessee to present evidence. This ground was allowed for statistical purposes.Conclusion:- ITA No.995/PUN/2016 filed by the assessee was allowed.- C.O. No.09/PUN/2018 filed by the assessee was dismissed.- ITA No.949/PUN/2016 filed by the Revenue was dismissed.- ITA No.996/PUN/2016 filed by the assessee was partly allowed for statistical purposes.Order Pronounced:The order was pronounced in the open court on May 23, 2018.