HANUMAN SINGH RATHORE,MUMBAI vs. ITO 25(2)(4), MUMBAI

आदेश / O R D E R Per Sandeep Gosain, Judicial Member: The present Appeal filed by the assessee is against the order of Commissioner of Income Tax (Appeals)-37, Mumbai

2 I.T.A. No. 1517/Mum/2017 Hanuman Singh Rathore, dated 12.01.17 for AY 2009-10 on the grounds mentioned herein below:- 1. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in confirming the penalty u/s 271(1)(c)of I. T. Act for Rs. 1,35,129/-. He ought to have deleted the penalty.

3 I.T.A. No. 1517/Mum/2017 Hanuman Singh Rathore, of section of 271(1)(c) r.w. explanation-1 for suppressing its real income by Rs. 4,82,761/-.

Aggrieved by the order of penalty passed by AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties dismissed the appeal of the assessee and upheld the order of penalty. Now before us, the assessee has preferred the present appeal by raising the above grounds.

4 I.T.A. No. 1517/Mum/2017 Hanuman Singh Rathore,

After considering the facts as well as legal proposition, we are of the view that no penalty can be levied u/s. 271(1)(c) on additions made on an ‘estimated basis’ without any concrete evidence of actual concealment. The provisions of section 271 (1) (c) of the Act would be applicable only where the assessee

5 I.T.A. No. 1517/Mum/2017 Hanuman Singh Rathore, has concealed the particulars of his income or furnished inaccurate particulars of such income. However, the estimation of higher rate of profits by the AO cannot be termed as either concealment or furnishing of inaccurate particulars of income.

We find support from the series of decisions by different High Court as well Coordinate Benches of ITAT, i.e. in the case of Commissioner of Income-tax v. Norton Electronics Systems (P) Ltd. (2014) 41 Taxmann.com 280 (Allahabad HC). It was held that when addition is made on estimate basis, no penalty is sustainable.

We also rely upon the decision in the case of Asst. Commissioner of Income-tax v. Vision Research Management ('P) Ltd. ITAT Lucknow (2015) 63 Taxmann.com 8 (Lucknow Trib), wherein it was held that Imposition of Penalty upon assessee u/s. 271(1)(c) on basis of adhoc & estimated disallowance/addition, without bringing any clinching material suggesting concealment of income or furnishing of inaccurate particulars of income, was not justified.

6 I.T.A. No. 1517/Mum/2017 Hanuman Singh Rathore, In the case of Prem Chand vs. Asst. Commissioner of Income-tax (2014) 52 Taxmann.com 95 (Chandigarh Trib), it was held that when addition in hands of assessee was made by estimating value of rice husk without any concrete evidence, levy of penalty on such addition was not sustainable. In Commissioner of Income-tax v. Brahmaputra Consortium Ltd. (Del): Penalty—concealment of income—disallowance of claim for deduction of expenditure and depreciation—finding that claims were erroneous and there was no concealment of income or furnishing of inaccurate particulars-- penalty could not be levied—income-tax act, 1961, s. 271(1)(c). In Commissioner of Income-tax v. P. Roles (Mad), it was held that the levy of penalty was based on the estimation of income. There cannot be any imposition of penalty based on estimation of income. In Naresh Chand Agarwal v. Commissioner of Income-tax (All): Penalty under section 271(1)(c) could not be imposed on the basis of estimating sales and making addition by applying net profit rate-Same was rightly sustained by Tribunal and no substantial question of law arises. In Commissioner of Income-tax v. P. H. I. Seeds India Ltd., 120081 301 ITR

7 I.T.A. No. 1517/Mum/2017 Hanuman Singh Rathore, 0013—(DeI): It was held that Section 271 (1) (C) of the Income- tax Act, 1961, is attracted only in those instances where the assessee has concealed the particulars of his income or has furnished inaccurate particulars of such income with an intent to 'mislead the Revenue. The Income-tax Act does not envisage or explicitly provide that in every case where the return is not accepted as correct and the assessment is framed at an income higher than that presented and offered for taxation by an assessee in the form of its return, penalty proceedings must be initiated. This proposition must logically 'follow from the use of the word "may" in section 271 in contradistinction to "shall" in section 234. Where two options were possible, adopting one of them could scarcely be viewed as mala fide, with an intent to evade payment of income-tax. Recompense had been provided for in section 234 of the Act by way of levy of interest, which, in the present case, had been paid without demur. In Dilip N. Shroff v. Joint Commissioner of Income-tax, (2007) 291 ITR 519 (SC): It was held that Clause (c) of section 271(1) of the Income-fax Apt, 1961, categorically states that penalty would be leviable if the assessee conceals particulars of his income or furnishes

8 I.T.A. No. 1517/Mum/2017 Hanuman Singh Rathore, inaccurate particulars thereof. But by reason of such concealment or furnishing of inaccurate particulars alone, the assessee does not ipso facto become liable for penalty. Imposition of penalty is not automatic. Penalty proceedings are not to be initiated merely to harass the assessee. The approach of the Assessing Officer in this behalf must be fair and objective. "Concealment of income" and "furnishing inaccurate particulars" are different. Both concealment and furnishing of inaccurate particulars refer to del/berate acts on the part of the assessee. A mere omission or negligence would not constitute a deliberate act of suppression or suggestio falsi. 8. Furnishing of accurate particulars:

After considering the totality of the facts and circumstances and while considering the series of judgments as mentioned above, we are of the view that there is no active concealment of income on the part of the assessee and additions made on estimation by the AO do not called for initiation of penalty. Thus, in our view, the penalty levied by AO and upheld by CIT(A) is not sustainable in the eyes of law and is thus set

9 I.T.A. No. 1517/Mum/2017 Hanuman Singh Rathore, aside. Resultantly, this ground raised by the assessee stands allowed.

आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी/ The Appellant प्रत्यथी/ The Respondent 2. 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned यवभागीयप्रयतयनयध, आयकरअपीलीयअयधकरण, मुंबई/ DR, ITAT, 5. Mumbai 6. गार्डफाईल / Guard File आदेशधिुसधर/ BY ORDER,

.उि/सहधयकिंजीकधर (Dy./Asstt.Registrar) आयकरअिीिीयअनर्करण, मुंबई/ ITAT, Mumbai