TMI Blog2021 (11) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... s already noticed from the computation statement in Annexure-A the total tax payable by the assessee - The difference of tax is lesser than that which was found to have been evaded by the assessee - the penalty shall be quantified or qualified by such figures. For the said purpose, we are persuaded not to remit the matter to any of the authorities. From the details available in the record, we have heard the counsel on the quantum of penalty, it has been stated that penalty of 100% works out to ₹ 5,62,918/-. As noted at the beginning of our discussion, the questions of law involve consideration of Section 271(1)(c) of the Act and the error of fact in appreciating what is the actual tax sought to be evaded by the assessee. The discus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee in either disclosing the income or paying the tax for the Assessment Year 2010-11. On 06.06.2011 the assessee filed the return for the Assessment Year 2010-11, declaring a total income of ₹ 1,64,990/-. The return was processed under Section 143(1) of the Act and order of assessment dated 26.03.2013 was passed. The Assessing Officer added the suppressed income received by the assessee and applied for TDS deducted from the assessee for the same period. The concluding portion in the order dated 26.03.2013 reads as follows: Hence the books of the assessee is rejected as it is not a reliable source for arriving at the assessee's income. This point was discussed with the assessee and a proposal to assessee the income at 12% o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 10,25,850/-. Hence, the appeal at the instance of the assessee. 5. The following substantial questions of law are framed for decision. i. In the facts and circumstances of the case, ought not the Tribunal have held that there cannot be a levy of penalty under Sec.271 (1) (c) on estimated income by the assessing authority. ii. In the facts and circumstances of the case, ought not the Tribunal have held that the assessee was entitled for credit of tax deducted at source on the extent of ₹ 4,63,824/- which was not given credit even while arriving at penalty proceedings. 6. Advocate Mr Anil D Nair argues that the order of Tribunal in Annexure-D dated 25.09.2018 is firstly untenable and has not actually appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d), in addition to tax, if any, payable by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or fringe benefits or the furnishing of inaccurate particulars of such income or fringe benefits. (emphasis supplied) 6.1 According to him, the charging section is clear in its purport and extent of application while determining the factor/quantum for penalty. The determining factor is not the total tax payable by the assessee. Applied thus, the penalty of ₹ 10,25,850/- is illegal and unauthorized. According to him, it shall be less and penalty shall be determined only at the lesser amount. 7. Mr Chris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference of tax is lesser than that which was found to have been evaded by the assessee. Therefore, the penalty shall be quantified or qualified by such figures. For the said purpose, we are persuaded not to remit the matter to any of the authorities. 8.2 From the details available in the record, we have heard the counsel on the quantum of penalty, it has been stated that penalty of 100% works out to ₹ 5,62,918/-. As noted at the beginning of our discussion, the questions of law involve consideration of Section 271(1)(c) of the Act and the error of fact in appreciating what is the actual tax sought to be evaded by the assessee. The discussion is concluded by holding that the penalty is determined on the amount of tax sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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