CIT vs. M/s. Gem Granites (Karnataka) (Madras High Court)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 4, 2013 (Date of publication)
AY:
FILE:
CITATION:

Click here to download the judgement (gem_granites_penalty.pdf)


S. 271(1)(c) penalty cannot be levied if the assessee discharges the primary burden by a cogent explanation and the AO is unable to rebut it. MAK Data (SC) explained

Pursuant to a search conducted u/s 132 it was revealed that the assessee had “on-money” transactions in real estate dealings. The assessee accepted the “on-money” but claimed that it was taxable only on completion of the projects under the ‘completed contract method‘. The assessee’s claim was rejected by all the authorities including the High Court. In the s. 271(1)(c) penalty proceedings, the assessee claimed that there was a mistake in the entries regarding the sale of flats to J.B. Exports in as much as the rate at which the property was shown as sold to the said party was much higher than the rate at which the property was sold to other parties. The AO and CIT(A) rejected the claim but the Tribunal accepted it on the basis that the huge difference in the rate of sale of the flat recorded in other cases and in the case of J.B. Exports supported the assessee’s contention that there may be a mistake in recording the rate. It held that as the department had failed to prove concealment without any doubt, penalty could not be imposed. On appeal by the department to the High Court, HELD dismissing the appeal:

Merely because the assessment proceedings have been confirmed does not automatically mean that penalty u/s 271(1)(c) is justified. Unless the case is strictly covered by s. 271(1)(c), penalty cannot be invoked. For sustaining penalty, the bona fide explanation of the assessee must be looked at so that the contumacious conduct of the assessee for the purpose of sustaining the penalty would be taken as condition that is the main requirement u/s 271(1)(c). In Mak Data P. Ltd vs. CIT the Supreme Court held that when a difference is noticed by the AO between the reported and assessed income, the Explanation to Section 271(1) raises a presumption of concealment and the burden is on the assessee to show otherwise, by cogent and reliable evidence. When the initial onus placed by the Explanation has been discharged by the assessee, the onus shifts on the Revenue to show that the amount in question constituted undisclosed income. On facts, the onus cast upon the assessee has been discharged by giving a cogent and reliable explanation. If the department did not agree with the explanation, the onus was on the department to prove that there was concealment of particulars of income or furnishing inaccurate particulars of income. Such onus has not been discharged by the department and so the Tribunal’s finding cannot be interfered with (Dharmendra Textiles Processors 306 ITR 277 (SC) & Reliance Petroproducts 322 ITR 158 (SC) referred)

One comment on “CIT vs. M/s. Gem Granites (Karnataka) (Madras High Court)
  1. sad how mechanical minds are operating in Revenue as robots!

    Can we say our governance is matured? can any reasonable man ever think so?

    when mental maturity is at lowest ebb how the deserve those position and enjoy those salaries as remuneration as UPSC recruits and enjoying all those benefits and power at the very cost of public exchequer met by Assesses.

    It appears we are in 1215 AD and ruled by King John type men, it may mean we need a new Magna Carta to be made and signed by the governments at Nation level behaving like Nero who ruled then Rome, he was on fiddle when Rome on flames!

    sad sad sad what kind of education is provided to these men in power. it clearly shows just UPSC seems appointing Robots only not some brainy men sorry again sirs.. an emotional outburst of a reasonable man in the writer here!

Discover more from itatonline.org

Subscribe now to keep reading and get access to the full archive.

Continue reading