Karnataka H.C : Whether the Tribunal was right in holding that expression ‘concealed particulars of income’ or ‘inaccurate particulars of such income’ as defined under s. 271(1)(c) is not attracted to the facts of the case ?

High Court Of Karnataka

CIT vs. Vasant K. Handigund

Section 271(1)(c)

Asst. Year 2000-01

V.G. Sabhahit & S.N. Satyanarayana, JJ.

IT Appeal No. 188 of 2007

6th November, 2009

Counsel appeared :

M.V. Seshachala, for the Appellants : S. Parthasarathi, for the Respondent

JUDGMENT

This appeal by the Revenue is filed being aggrieved by the order of the Tribunal, Panaji Bench, Panaji in ITA No. 4/Panj/2005 for the asst. yr. 2000-01 dt. 6th Sept., 2006, wherein the appeal filed by the Revenue has been dismissed confirming the order passed by the CIT(A) dt. 16th Dec., 2004, wherein the order imposing penalty under s. 271(1)(c) of the Act has been cancelled by the appellate authority by allowing the appeal.

2. The assessee had constructed a commercial building and showed the cost of construction of the ground floor at Rs. 8,32,000 and cost of the first floor at Rs. 30,11,400 and the first floor was sold to a bank for Rs. 30,11,400. During survey which was conducted on 27th Nov., 2001 under s. 133A assessee was asked to explain the cost of construction of first floor with cogent evidence and the assessee though initially agreed to get the first floor valued by approved valuer, failed to do so and the matter was referred to DVO and valued at Rs. 19,68,461. The assessee agreed to accept the said report and agreed for the addition of difference between the cost declared by him and computed by the DVO and AO initiated proceedings for concealment of income on the ground that this admission by the assessee himself and his inability to produce evidence to substantiate the claim and therefore Department conducted survey under s. 133. Accordingly, penalty of Rs. 4,35,000 was levied. Being aggrieved by the same assessee preferred an appeal before the CIT(A), Belgaum in ITA No. 230/Bgm/2003-04 and the appellate authority by order dt. 16th Dec., 2004 allowed the appeal and accordingly the levy of penalty of Rs. 4,35,500 imposed under s. 271(1)(c) had accepted the explanation offered. Being aggrieved by the said order passed by the appellate authority, Revenue preferred appeal before the Tribunal, Panaji Bench in ITA No. 64/Panj/2005 and the Tribunal by its order dt. 6th Sept., 2006 dismissed the appeal and confirmed the order passed in appeal dt. 16th Dec., 2004 and being aggrieved by the same, this appeal is filed under s. 260A of the IT Act, 1961 (hereinafter referred to as ‘the Act’). Appeal has been admitted on 10th Aug., 2007 for considering the following substantial questions of law :

“1. Whether the Tribunal was right in holding that expression ‘concealed particulars of income’ or ‘inaccurate particulars of such income’ as defined under s. 271(1)(c) is not attracted to the facts of the case ?

Whether the Tribunal was right in holding that penalty levied under s. 271(1)(c) is outside the purview of AO even though concealment of income has come to the notice subsequent to a survey conducted ?

Whether the Tribunal is right in law, in holding that no penalty under s. 271(1)(c) is not leviable without considering the fact that the assessee could not support his case by any documentary evidences whereas the AO levied the penalty based on the report of DVO ?”

We have heard learned counsel appearing for the appellants and the learned counsel for the respondent. Learned counsel appearing for the appellants submitted that the appellate authority was not at all justified in accepting the cause which was not satisfactory and the concealment was admitted only after survey and the assessee accepted the valuation of the DVO and wherefore, imposition of penalty by the AO was justified and the decision relied upon by the Tribunal is not applicable to the facts of the present case and therefore, the order passed by the Tribunal is liable to be set aside by answering the substantial question of law in favour of the Revenue and against the assessee.

On the other hand, learned counsel for the respondent submitted that the order passed by the Tribunal confirming the order passed by the appellate authority accepting the explanation shown by the assessee and confirming the order setting aside the order of penalty passed by the appellate authority would show that there is concurrent finding on the question of fact which does not suffer from any perversity or arbitrariness and wherefore when both the appellate authority and the Tribunal have accepted the explanation given by the appellant, having regard to the amount of penalty imposed and specific facts and circumstances of the case, this is not a fit case for interfering with the order passed by the Tribunal. We have given careful consideration to the contention of the learned counsel appearing for the parties and scrutinised the material on record. The material on record would clearly show that the assessee has accepted the valuation made by the DVO and though the cost of construction of the first floor has been shown at Rs. 30,11,400, the assessee has accepted the valuation made by the DVO at Rs. 19,68,461 and has agreed for addition of the difference between the income and the expenditure shown by him at Rs. 30,11,400 and Rs. 19,68,461 and has paid tax on the said amount. However, it was contended by the assessee that the valuation report was accepted and tax has been paid on the difference amount as referred to above to buy peace and to ovoid litigation and having regard to the concurrent finding that is arrived at by the appellate authority and the Tribunal which has confirmed the order passed by the appellate authority and having regard to the amount of penalty imposed and other facts and circumstances of the present case, we are satisfied that though the decision relied upon by the Tribunal may not be applicable to the facts of the present case, since the Tribunal has confirmed the finding of fact arrived at by the appellate authority and there is concurrent finding by the Tribunal and the appellate authority accepting the cause shown by the assessee under s. 271(1)(c) for deleting the order of penalty imposed under s. 271(1)(c). Having regard to the abovesaid facts of this case, the substantial questions of law have to be answered against the Revenue. We answer the substantial questions of law against the Revenue and in favour of the assessee and do not find any ground to interfere with the concurrent finding on the question of foot arrived at by the Tribunal and the appellate authority for deleting the order of penalty passed by the AO under s. 271(1)(c) of the Act. Accordingly, appeal is dismissed.

[Citation : 327 ITR 233]

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