2018 (6) TMI 1277 - AT - Income Tax

Assessee wins tax penalty case due to lack of evidence.

The Tribunal found in favor of the assessee, a civil contractor, in a tax penalty case. It held that the penalty under Section 271(1)(c) of the Income-tax ... Penalty levied u/s 271(1)(c) - addition after rejecting the books of accounts u/s 145(3) on estimated net profit @ 8% - Held that:- When the assessee has not been specifically made aware of the charges leveled against him, as to whether there is a ‘concealment of income or furnishing of inaccurate particulars of income’ on his part, the penalty u/s 271(l)(c) of the Act is not sustainable. Assessing Officer has failed to make out his case by proving on record that the assessee has concealed particulars of income or has furnished inaccurate particulars of such income, rather proceeded to levy the penalty merely on the basis of addition made by the Assessing Officer while framing u/s 143(3) on the basis of estimated net profit of 8% by rejecting the books of accounts. So, we find that penalty levied by the AO and confirmed by the Ld. CIT(A) is not sustainable, hence ordered to be deleted. See Commissioner of Income Tax Kanpur vs. M/s Dee Control and Electric Pvt. Ltd. [2018 (1) TMI 454 - ALLAHABAD HIGH COURT] Issues Involved1. Sustaining the penalty under Section 271(1)(c) of the Income-tax Act, 1961.2. Validity of the initiation of penalty proceedings.3. Validity of the show-cause notice issued under Section 274.4. Onus on the assessee to prove non-concealment of income and furnishing of accurate particulars.5. Addition of grounds of appeal.Detailed Analysis1. Sustaining the Penalty Under Section 271(1)(c) of the Income-tax Act, 1961The core issue revolves around whether the penalty under Section 271(1)(c) is justified. The assessee, a civil contractor, voluntarily offered 8% of gross receipts for taxation during scrutiny proceedings, which became the basis of the assessment. The penalty was levied based on additions made in the assessment order dated 25/03/2015. The Tribunal noted that the assessment framed under Section 143(3) was accepted by the assessee, and tax was paid on the assessed income. The Tribunal emphasized that penalty cannot be imposed merely because the additions made in the income of the assessee have been confirmed. The Assessing Officer (AO) must prove that there was concealment of particulars of income or that the assessee furnished inaccurate particulars of such income.2. Validity of the Initiation of Penalty ProceedingsThe Tribunal found that the AO did not record specific satisfaction to initiate penalty proceedings for either furnishing inaccurate particulars of income or for concealment of particulars of income. The assessment order merely stated, 'Initiate proceedings u/s 271(1)(c) of the I.T. Act, is being issued,' which was deemed vague and ambiguous. The Tribunal referred to the judgment of the Hon’ble Karnataka High Court in CIT vs. Manjunatha Cotton and Ginning Factory & Ors., which mandates that the AO must be clear and unambiguous in recording satisfaction for initiating penalty proceedings.3. Validity of the Show-Cause Notice Issued Under Section 274The show-cause notice issued under Section 274 was found to be invalid as it did not specify whether the penalty was for concealment of income or for furnishing inaccurate particulars of income. The Tribunal cited the decision of the Hon’ble Karnataka High Court in CIT vs. Manjunatha Cotton and Ginning Factory & Ors., which requires that the notice under Section 274 should specifically state the grounds for penalty. The Tribunal held that the penalty proceedings could not be sustained if the assessee was not made aware of the specific charges against them.4. Onus on the Assessee to Prove Non-Concealment of Income and Furnishing of Accurate ParticularsThe Tribunal observed that the assessee had made a voluntary surrender of income during the survey proceedings, and the AO estimated the net profit at 8% based on this surrender. The Tribunal concluded that there was no concealment of particulars of income or furnishing of inaccurate particulars by the assessee. The Tribunal referred to the judgments of the Hon’ble Allahabad High Court in CIT vs. Radha Kishan Goel and Commissioner of Income Tax Kanpur vs. M/s Dee Control and Electric Pvt. Ltd., which support the view that penalty cannot be imposed in cases of voluntary surrender of income.5. Addition of Grounds of AppealThe Tribunal allowed the assessee to add or alter any grounds of appeal before or at the time of hearing, but this issue was not elaborated upon in the judgment.ConclusionThe Tribunal concluded that the AO failed to prove that the assessee concealed particulars of income or furnished inaccurate particulars. The penalty levied under Section 271(1)(c) was found to be unsustainable and was ordered to be deleted. The appeal filed by the assessee was partly allowed.