2014 (2) TMI 1446 - AT - Income Tax

Levying penalty u/s 271(1)(c) - Estimation of income - bogus purchases - HELD THAT - It is an undisputed fact that AO made addition as being bogus purchases but in 2nd appeal the addition was restricted by the Tribunal by applying the gross profit rate of 12.5% but on a different ground. Thus it is seen that the penalty that was levied by A.O.(on account of bogus purchase) did not survive because the addition was confirmed by Tribunal on a different reason (applying gross profit rate). In such circumstances we are of the view that it cannot be said that that Assessee has furnished inaccurate particulars of income or concealed the particulars of income so as to attract the penalty u/s 271(l)(c) for which we also get support from the decision of Sudesh Khanna 2005 (5) TMI 235 - ITAT AHMEDABAD-C where it has been held as addition sustained by CIT (A) on account of unaccounted sales on a different ground viz fall in GP rate it cannot be said that the assessee had concealed the particulars of income or furnished inaccurate particulars and therefore penalty u/s 271(1)(c) was not leviable. Thus no penalty can be levied in the present case and therefore direct the deletion of penalty levied by AO u/s 271(1)(c) - Appeal of the Assessee is allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this appeal are:

(a) Whether penalty under section 271(1)(c) of the Income Tax Act is leviable on the assessee for concealment of particulars of income or furnishing inaccurate particulars, when the addition made by the Assessing Officer (AO) on account of bogus purchases was subsequently modified by the Tribunal on a different ground?

(b) Whether the order of the Commissioner of Income Tax (Appeals) (CIT(A)) confirming the bogus nature of purchases survives after the Tribunal's order restricting the addition by applying the gross profit rate?

(c) The impact of the pendency of the appeal before the High Court, which admitted the substantial question of law raised by the assessee, on the levy of penalty under section 271(1)(c).

(d) The applicability and relevance of precedents on the issue of penalty when additions are confirmed on grounds different from those taken by the AO or CIT(A).

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) and (b): Whether penalty u/s 271(1)(c) is leviable when the addition on account of bogus purchases is modified by the Tribunal on a different ground and the CIT(A) order confirming bogus purchases does not survive?

Relevant legal framework and precedents: Section 271(1)(c) of the Income Tax Act empowers the AO to levy penalty if the assessee is found to have concealed particulars of income or furnished inaccurate particulars. The question of concealment or furnishing inaccurate particulars is a condition precedent for imposing penalty. The principle that the order of a subordinate authority merges with that of the superior authority is well recognized.

The Tribunal in the present case had earlier upheld the AO's rejection of books of accounts under section 145 but restricted the addition by applying a gross profit rate of 12.5% on total turnover, thereby significantly reducing the addition from Rs. 1.68 crore to Rs. 21,36,451/-. This modification was on a different ground than the AO's finding of bogus purchases.

Court's interpretation and reasoning: The Court observed that since the Tribunal confirmed the addition sustained by the CIT(A) but on a different ground (fall in gross profit rate) rather than on the ground of bogus purchases, the order of CIT(A) confirming the purchases as bogus does not survive. The penalty levied by the AO was based on the premise that purchases were bogus and hence concealed particulars or furnished inaccurate particulars existed. However, since the addition was confirmed on a different basis, the foundation for penalty under section 271(1)(c) collapses.

Key evidence and findings: The AO made an addition of Rs. 1.68 crore on account of bogus purchases. The CIT(A) upheld this addition. The Tribunal, however, restricted the addition to Rs. 21,36,451/- by applying the gross profit rate, thereby not endorsing the AO's finding of bogus purchases. This factual matrix was critical.

Application of law to facts: The Court applied the principle that penalty cannot be levied if the addition is confirmed on grounds different from those constituting concealment or furnishing inaccurate particulars. The Tribunal's order supersedes the CIT(A) order, and since the Tribunal did not confirm the purchases as bogus, the penalty based on that premise cannot survive.

Treatment of competing arguments: The Revenue argued that since the CIT(A) confirmed the purchases as bogus, penalty was leviable. The Court rejected this, holding that the CIT(A) order merges with the Tribunal's order, which took a different ground. The Revenue's reliance on various decisions was found to be distinguishable on facts.

Conclusions: Penalty under section 271(1)(c) cannot be sustained when the addition is confirmed on a different ground than concealment or furnishing inaccurate particulars. The CIT(A) order confirming bogus purchases does not survive the Tribunal's order applying gross profit rate, and accordingly, penalty is not leviable.

Issue (c): Impact of the pendency of the appeal before the High Court admitting a substantial question of law on the levy of penalty.

Relevant legal framework and precedents: It is a settled position that when a substantial question of law is admitted by the High Court in respect of the quantum addition, penalty proceedings should be viewed with caution. The Tribunal in a prior order had deleted the penalty on this ground.

Court's interpretation and reasoning: The Court noted that the Hon'ble High Court had admitted the appeal filed by the assessee against the quantum addition, holding the question to be a substantial question of law. This admission indicates that the issue is not free from doubt. The Court relied on the principle that penalty should not be levied where the claim or plea gives rise to a substantial question of law.

Key evidence and findings: The High Court's order dated 23.07.2003 admitting the appeal was on record. The Tribunal, in its earlier order dated 29.06.2007, had deleted the penalty on this ground.

Application of law to facts: The Court applied the principle that penalty is not leviable when the matter is sub judice before a higher forum on a substantial question of law, reinforcing the view that the penalty should be deleted.

Treatment of competing arguments: The Revenue's reliance on various decisions to support penalty was found to be inapplicable due to the admitted substantial question of law and the modification of addition on different grounds.

Conclusions: The pendency of the appeal before the High Court on a substantial question of law militates against the levy of penalty under section 271(1)(c).

Issue (d): Applicability of precedents cited by parties on the question of penalty.

Relevant legal framework and precedents: The assessee relied on the decision in Sudesh Khanna vs ACIT (2005) 98 TTJ (Ahd) 106, which held that penalty under section 271(1)(c) is not leviable where the addition is confirmed on a different ground than concealment or furnishing inaccurate particulars. The Revenue relied on several decisions supporting penalty levy when purchases are held bogus.

Court's interpretation and reasoning: The Court found the decisions relied upon by the Revenue to be distinguishable on facts as those cases involved confirmation of additions on the same grounds as concealment or furnishing inaccurate particulars. The decision in Sudesh Khanna was found directly applicable and persuasive.

Application of law to facts: The factual distinction that the Tribunal confirmed addition on a different ground was pivotal in applying the Sudesh Khanna precedent.

Conclusions: The precedent in Sudesh Khanna squarely applies, supporting deletion of penalty, while the Revenue's cited decisions do not apply to the facts of the present case.

3. SIGNIFICANT HOLDINGS

The Court held:

"Tribunal having confirmed the addition sustained by CIT (A) on account of unaccounted sales on a different ground viz fall in GP rate, it cannot be said that the assessee had concealed the particulars of income or furnished inaccurate particulars and therefore penalty u/s 271(1)(c) was not leviable."

The Court established the principle that where the addition is confirmed on grounds different from those constituting concealment or furnishing inaccurate particulars, penalty under section 271(1)(c) cannot be imposed.

The Court further held that the pendency of the appeal before the High Court admitting a substantial question of law precludes levy of penalty.

Accordingly, the penalty of Rs. 9,18,673/- levied under section 271(1)(c) was deleted and the appeal of the assessee was allowed.