SUNRISE OPTICS,MUMBAI vs. A.O WD 13(1)(2), MUMBAI

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ITA 3525/MUM/2011Status: DisposedITAT Mumbai25 July 2016AY 2002-034 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the CIT(A) passed a cryptic order without dealing with the assessee's submissions. Therefore, the matter was restored to the CIT(A) for fresh adjudication.

What were the facts?

The assessee's assessment was completed under section 143(3) read with section 263, determining a higher income due to discrepancies found during a survey. A penalty was levied under section 271(1)(c) for concealment of income or furnishing inaccurate particulars.

What were the issues?

Whether the penalty levied under section 271(1)(c) is sustainable when the CIT(A) has not properly adjudicated the assessee's submissions regarding the estimation of income.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 143(3),Section 263

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, MUMBAI BENCHES “E, ‘MUMBAI

Before: SHRI RAJENDRA, HON’BLE & SHRI C.N. PRASAD, HON’BLE

For Appellant: Shri Vipul Joshi – Adv
For Respondent: Shri Manjunatha Swamy - DR
Hearing: 25/07/2016

Assessee by : Shri Vipul Joshi – Adv. Department By : Shri Manjunatha Swamy - DR Date of hearing : 25/07/2016. Date of pronouncement : 21/10/2016. O R D E R PER C.N. PRASAD, JUDICIAL MEMBER

This appeal is filed by the assessee against the order of Commissioner of Income Tax (Appeals)-24, Mumbai, dated 22/03/2011 for the Assessment Year 2002-03 in sustaining the penalty levied under section 271(1)(c) of the Act.

2.

Brief facts of the case are that the assessee is engaged in the business of trading in optical goods, filed its return of income on 31/10/2012 declaring income of Rs. 14,244/-. The assessment was completed under section 143(3) on 27/12/2004 accepting the income returned. This assessment was later set aside under section 263 of the Act for making fresh assessment. Consequent to the 263 proceedings, the assessment was completed under section 143(3) read with section 263 on 06/12/2006 determining the income of the assessee at Rs.9,11,170/-. In this case, a survey under section 133A was conducted on 17/01/2012, and in the course of survey, discrepancies in stock, expenses etc. were found. Excess stock was found in the case of the assessee and its sister concerns. The assessee appears to have disclosed additional income of Rs. 8 lakh & 20 lakh in its goods and its sister concern namely Top Opticals. The assessment was completed by rejecting the books of account and estimating the gross profit at 30.4%. The Assessing Officer noticed that there is drastic fall in gross profit when compared to last year, therefore the assessee has offered additional income in the course of survey. Therefore, the profit & loss account of the assessee was recast by estimating gross profit and determining the income at Rs. 9,10,716/-. This assessment was confirmed by the ld.CIT(A) and the Tribunal and the High Court also refused to admit the appeal/question of law. Penalty proceedings were initiated under section 271(1)(c) of the Act for concealment of income or furnishing of inaccurate particulars as there was steep fall in gross profit. The Assessing Officer was of the view that the assessee had intentionally furnished inaccurate particulars of income. He passed order under section 271(1)(c) levying penalty of Rs. 3,25,388/- on the income escaped assessment.

3.

The assessee preferred an appeal before the ld.CIT(A) and made elaborate submissions before the ld.CIT(A). However, the ld.CIT(A) without considering the submissions, sustained the order of penalty.

4.

The Authorized Representative of the assessee submitted that gross profit was estimated in assessee’s case in quantum proceedings by rejecting the books of account. There was a search, discrepancies in stock were found at the time of survey, however, the entire stock was valued at one rate by the Assessing Officer. The Authorized Representative of the assessee further submitted that no defects in vouchers, books were found and in fact 17% of stock was sold as scrap

and the assessee has collected tax on such sales. The Authorized Representative of the assessee further submitted that it is only an estimation of gross profit by rejection of books of account and there is no concealment or furnishing inaccurate particulars of income. He further submitted that the ld.CIT(A) in a very cryptic manner and in one paragraph sustained the penalty without dealing with any of the submissions of the assessee.

5.

The Departmental Representative relied on the orders of the authorities below and placed reliance on the decision of the Hon'ble Supreme Court in the case of Mak Data Pvt. Ltd. ( 358 ITR 593).

6.

We have heard the rivals submissions, perused the orders of the authorities below. We find considerable force in the submissions of the Authorized Representative of the assessee that the ld.CIT(A) has not dealt with the elaborate submissions made by the assessee in the course of the proceedings before him. In fact, the ld.CIT(A) has extracted the submissions of the assessee which are running into almost 17 pages of his order and finally concluded in page No. 18 dismissing the appeal of the assessee and confirmed the penalty observing as under:- “2.4 I have considered the above submissions. However, it would be relevant to point out that in the appeal proceedings relating to the assessment for A.Y. 25002-03 in the appellate order passed on 22/02/2011 the findings of the Assessing Officer have been confirmed and also the protective assessment made by the Assessing Officer as regards unexplained investment in stock has also been held as substantive and Assessing Officer has been directed to add back the same as unexplained of Rs. 8/- lakhs on the date of survey for unexplained investment in stock and unexplained investment/expenditure in renovation of shop has been confirmed in the appellate order passed on 22/02/2011. Further action of the Assessing Officer in rejecting the books of account has been confirmed in the said appellate order and estimation of GP has also been upheld. Thus, as on date when the appeal is being decided relating to penalty the findings of the Assessing Officer in the assessment

order stand confirmed in the corresponding appellate order relating to the assessment and since all the findings relating to rejection of books, application of GP rate, surrender of Rs. 8/- lakhs made on date of survey relating to unexplained investment in stock and unexplained investment/expenditure in renovation of shop stand confirmed – hence penalty under section 271(1)(c) is exigible on the entire amount and therefore the action of the Assessing Officer in imposing penalty of Rs. 3,25,288/- is confirmed. Accordingly, this ground of appeal is dismissed.”

7. On a careful reading of the order of the ld.CIT(A), we find that the ld.CIT(A) has passed a very cryptic order and none of the submissions of the assessee have been dealt with by ld.CIT(A) with reasons. In these circumstances, we are of the considered view that the matter should go back to the ld.CIT(A) for fresh adjudication reasons dealing with the submissions of the assessee. Thus, we restore the appeal of the assessee to the file of the ld.CIT(A) for fresh adjudication, after providing adequate opportunity of being heard to the assessee.

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