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2025 (5) TMI 1699 - AT - Income TaxPenalty u/s.270A - @200 percent of tax on Under Reporting of Income on alleged suppressed sales - assessment order was passed u/s.144 of the Act on account of non-compliance by the assessee - HELD THAT - As on being confronted one of the partners present during survey admitted the excess as undisclosed income of the assessee though retracted later. We find that the basis of the addition to the income as also imposition of penalty is not purely on estimate rather based on undisclosed sales reflected in the incriminating papers found during survey. Even though the ITAT in quantum appeal has applied 15% being net profit on the figures of suppressed sales only in a way accepted the stand of the revenue that the said sales were unaccounted and undisclosed income of the assessee. Assessee has pleaded that the penalty could not be imposed on estimated addition without adducing any reason for repeated non-compliance both during assessment and penalty proceedings before AO - Even during penalty appeal the assessee did not make any compliance though the CIT(A) was fair enough to reduce the quantum of penalty partially. However he upheld the penalty vis-a-vis the suppressed sales which was subsequently reduced to Rs. 11 lakh by the hon ble ITAT(supra). Therefore it is very much evident that the assessee did no plead its case before the lower authorities for reasons best known to it only. Merely by claiming that the statement of the partner was retracted would not negate the evidences of suppressed sales found during survey. Apparently the undisclosed income of the assessee worked out on the basis of suppressed sales tantamount to misreporting/underreporting of income which liable to penalty in terms of section 270A of the Act. No infirmity in the action of the ld.CIT(A) upholding the penalty levied u/s.270A of the Act. As in quantum appeal we direct the AO to work out the quantum of penalty with reference to the reduced income.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Tribunal in this appeal are:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Justification and sustainability of penalty under section 270A for under-reporting of income due to suppressed sales Relevant legal framework and precedents: Section 270A of the Income-tax Act empowers the tax authorities to levy penalty on under-reporting or misreporting of income. The penalty is calculated as a percentage of the tax on the under-reported income. The Supreme Court and various High Courts have consistently held that penalty under section 270A is attracted when there is under-reporting or misreporting of income, and the burden lies with the revenue to prove the same. Court's interpretation and reasoning: The Tribunal noted that incriminating documents found during the survey operation under section 133A revealed suppressed sales of Rs. 72,93,493/-. One of the partners initially admitted the suppression but later retracted. The assessing officer passed assessment order under section 144 due to non-compliance by the assessee. The Tribunal observed that the penalty was not imposed purely on an estimate but on undisclosed sales reflected in incriminating papers found during the survey, which the revenue accepted as unaccounted income. The Tribunal held that the undisclosed income arising from suppressed sales amounted to misreporting/underreporting of income, attracting penalty under section 270A. Key evidence and findings: The incriminating documents seized during survey, the initial admission by the partner, and the difference between sales declared in audited books and sales indicated in the seized documents formed the basis of the addition and penalty. The assessee's failure to respond to notices and non-cooperation during assessment proceedings was also noted. Application of law to facts: The Tribunal applied section 270A and relevant judicial principles to conclude that penalty was rightly levied on the suppressed sales income as under-reporting of income. Treatment of competing arguments: The assessee argued that the penalty was void as it was based on estimated income and that the statement was retracted under duress. The Tribunal rejected these contentions, emphasizing that the addition was not purely estimated but based on documentary evidence and that retraction does not negate the existence of incriminating evidence of suppressed sales. Conclusions: The penalty under section 270A on suppressed sales income was justified and sustainable. Issue 2: Levy of penalty on income additions determined on estimated basis Relevant legal framework and precedents: It is well established that penalty under section 270A can be levied on income additions determined on estimated basis if such estimation is reasonable and based on credible material. Court's interpretation and reasoning: The Tribunal observed that although the ITAT in the quantum appeal applied a 15% net profit rate on the suppressed sales to arrive at the addition, the basis of addition and penalty was the suppressed sales themselves, which were not estimated but reflected in incriminating documents. Thus, penalty was not levied on a purely estimated income but on income supported by evidence. Key evidence and findings: The incriminating papers and initial admission by the partner formed the basis of the addition. The quantum was subsequently reduced by the Tribunal but the existence of suppressed sales was accepted. Application of law to facts: The Tribunal held that penalty could be imposed on the reduced quantum of income as determined by the ITAT, and that the fact that the income was partially estimated did not invalidate the penalty. Treatment of competing arguments: The assessee's contention that penalty cannot be levied on estimated income was rejected on the ground that the estimation was based on credible evidence and that the penalty related to under-reporting of income. Conclusions: Penalty can be levied on estimated income additions if based on credible evidence, and the quantum of penalty should correspond to the reduced income confirmed by the Tribunal. Issue 3: Effect of retraction of statement recorded during survey on penalty proceedings Relevant legal framework and precedents: Statements recorded under section 133A are admissible evidence. Retraction of statements may be considered but does not automatically negate the evidence unless satisfactorily explained. Court's interpretation and reasoning: The Tribunal noted that the partner's retraction of the statement claiming duress was not supported by any compliance or explanation during assessment or penalty proceedings. The Tribunal held that mere retraction does not negate the incriminating evidence found during survey. Key evidence and findings: The retraction statement dated 11.03.2020 was filed but no revised return declaring additional income was filed. The assessee remained non-compliant during proceedings. Application of law to facts: The Tribunal applied the principle that retraction without substantive compliance or explanation does not absolve the assessee from penalty liability. Treatment of competing arguments: The assessee's argument of coercion was rejected due to lack of substantiation and non-cooperation. Conclusions: Retraction of statement does not negate penalty liability where evidence of suppressed sales exists and the assessee fails to cooperate. Issue 4: Effect of assessee's non-compliance and non-cooperation during proceedings Relevant legal framework and precedents: Principles of natural justice require cooperation by the assessee and compliance with notices. Non-compliance can justify adverse inferences and penalty. Court's interpretation and reasoning: The Tribunal emphasized the assessee's failure to respond to notices and cooperate during assessment and penalty proceedings. It observed that despite adequate opportunities, the assessee displayed indifference and gross negligence. Key evidence and findings: Non-response to notices, failure to file revised return, and lack of explanation during penalty proceedings. Application of law to facts: The Tribunal concluded that the assessee's non-compliance justified the imposition of penalty and warranted imposition of costs. Treatment of competing arguments: The assessee did not provide reasons for non-compliance; hence, the Tribunal rejected any plea based on procedural lapses. Conclusions: Non-compliance and non-cooperation by the assessee justified penalty and costs. Issue 5: Quantum of penalty in light of Tribunal's reduction of addition in quantum appeal Relevant legal framework and precedents: Penalty must be proportionate to the under-reported income as finally determined. Court's interpretation and reasoning: The Tribunal noted that the ITAT in the quantum appeal reduced the addition from Rs. 72,93,493/- to Rs. 10,94,023/- based on 15% net profit on suppressed sales. Accordingly, the Tribunal directed the Assessing Officer to recalculate the penalty on the reduced income. Key evidence and findings: Quantum appeal order dated 04.09.2024 reducing addition. Application of law to facts: The Tribunal applied the principle that penalty should be calculated on the final confirmed addition. Treatment of competing arguments: No contrary argument was accepted against recalculation of penalty. Conclusions: Penalty quantum to be recalculated on reduced addition of Rs. 10,94,023/-. Issue 6: Imposition of costs on the assessee for non-compliance and indifference Relevant legal framework and precedents: Courts and Tribunals have discretion to impose costs for non-compliance and to ensure compliance with procedural requirements. Court's interpretation and reasoning: The Tribunal observed the assessee's casual approach and indifference despite adequate opportunities, stating "It is the fundamental duty of the assessee to diligently pursue its case and comply with the notices and proceedings initiated by the Revenue authorities." Key evidence and findings: Non-cooperation and failure to respond during assessment and penalty proceedings. Application of law to facts: The Tribunal exercised discretion to impose a cost of Rs. 11,000/- payable to the Income Tax Department within 15 days. Treatment of competing arguments: No arguments against cost imposition were accepted. Conclusions: Cost of Rs. 11,000/- imposed on the assessee for non-compliance. 3. SIGNIFICANT HOLDINGS "The basis of the addition to the income as also imposition of penalty is not purely on estimate, rather based on undisclosed sales reflected in the incriminating papers found during survey." "Merely by claiming that the statement of the partner was retracted would not negate the evidences of suppressed sales found during survey." "The undisclosed income of the assessee worked out on the basis of suppressed sales tantamount to misreporting/underreporting of income which liable to penalty in terms of section 270A of the Act." "It is the fundamental duty of the assessee to diligently pursue its case and comply with the notices and proceedings initiated by the Revenue authorities. The failure of the assessee to make any response before the authority reflects gross negligence and indifference." Final determinations:
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