2009 (1) TMI 240 - HC - Income Tax

Block Assessment - Penalty u/s 158BFA Mandatory Penalty - Income-tax Appellate Tribunal has committed no error in holding that the provisions of section 158BFA(2) providing for imposition of penalty in respect of the undisclosed income determined by the Assessing Officer under clause (c) of section 158BC is discretionary and not mandatory - The learned Income-tax Appellate Tribunal has rightly held that the addition is result of estimation of the opening capital involved prior to the block period and in the block assessments while computing the undisclosed income for the block period capital possessed by the assessees prior to the block period as revealed from the ledger and the material seized during the search could not be treated as undisclosed income of the first assessment year in the block period revenue appeal dismissed against the order of ITAT setting aside the penalty.

Summary

Issues:
Appeal against deletion of penalty under section 158BFA(2) by ITAT for block period 1996-97 to 2001-02.

Analysis:
1. Background: The appeals by Revenue were against ITAT's order deleting penalty imposed under section 158BFA(2) for the block period 1996-97 to 2001-02.

2. Assessment and Penalty: Assessing Officer initiated penalty proceedings due to significant undisclosed income by the assessees and their brother. Penalty was imposed at 100% of the tax leviable on the difference between assessed and returned income.

3. CIT(A) Decision: CIT(A) found the difference in opening capital calculation method not indicative of concealment of income. Therefore, penalty was deleted as the undisclosed income was not due to concealment.

4. ITAT Decision: ITAT held that penalty under section 158BFA(2) is discretionary, not mandatory. The undisclosed income determination was based on estimation of opening capital, not actual undisclosed income.

5. Substantial Questions of Law: The substantial question raised was whether ITAT was justified in upholding CIT(A)'s order deleting penalty under section 158BFA(2). Another question was whether the penalty provision is mandatory or discretionary.

6. Court's Decision: The court analyzed section 158BFA(2) and concluded that the provision gives discretion to Assessing Officer to levy penalty, not mandating it automatically. The court emphasized strict construction of penal provisions in tax statutes.

7. Interpretation of Provisions: The court clarified that the absence of circumstances enumerated in the proviso does not automatically attract penalty under section 158BFA. Each penalty provision must be independently construed.

8. Concurrent Findings: Both CIT(A) and ITAT found that the undisclosed income difference did not relate to the block period. The undisclosed income was due to estimation of opening capital, not concealment.

9. Final Verdict: The court dismissed the appeals, stating no substantial question of law arose. The concurrent findings by appellate authorities supported the deletion of penalty under section 158BFA(2) for the block period.