Merely because assessee not filed appeal against addition not a ground for imposing penalty

Merely because assessee did not filed appeal against addition it cannot be a ground for imposing penalty – ITAT

ABCAUS Case Law Citation:
ABCAUS 3766 (2023) (06) ITAT

Important Case Laws relied upon:
Rajiv Kumar Garg vs. ITO
CIT vs. Aero Traders (P) Ltd.
Harigopal Singh vs. CIT (2002) 258 ITR 85 (P&H) 
Vishnu Tambi v. DCIT
CIT vs. Subhash Trading Company 221 ITR 110 (Guj)

In the instant case, the assessee had challenged the order passed by the CIT(A) in sustaining the penalty u/s 271(1)(c) of the Income Tax Act, 1961 (the Act) as imposed by the Assessing Officer (AO) on  account of estimated  profits.

In quantum proceedings, the said addition had been made on estimate basis by applying the Gross Profit rate on the sales appearing the bank account of the assessee.

The Tribunal stated that it is a trite law that any addition made on account of estimated rate of profit applied to the turnover does not amount to concealment.

The Tribunal observed that in the penalty order, the AO had stated that since the appellant had not filed any appeal against the additions, it shows that the appellant had no plea to offer and concluded that the above transaction was concealed. 

The Tribunal opined that merely because the assessee had not filed any appeal against the addition, it cannot be a ground for imposing penalty. This cannot at all lead to a conclusion that the levy of penalty is automatic when addition is not appealed against or for that matter it is sustained. There can be many reasons due to which an assessee may choose not to file an appeal, for example, for want of proper legal advice. 

The ITAT also pointed out that settled law is that the assessment proceedings and the penalty proceedings are different.

Keeping in view, the entire facts and circumstances the Tribunal held that the penalty levied by the Assessing Officer could not be sustained.  

Accordingly, the appeal of the assessee was allowed.

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