B. GAJENDRA KUMAR Vs. THE INCOME TAX OFFICER

JUDGEMENT

(1.) THESE appeals are preferred challenging the order passed by the authorities levying the penalty under Section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act' for brevity). The assessee is an individual, engaged in the business of money lending at Haleyangady, Dakshina Kannada District under the name and style of M/s. Sri Durga Credits and Investments. The assessee filed his return of income for the assessment years 2000 - 01 to 2006 - 07, declaring his income. Subsequently, a survey was conducted at the business premises of the assessee under Section 133(A) of the Act on 30.08.2006. The authorities found duplicate sets of exercise books, which were seized. Based on the findings of the survey authorities, the case of the assessee was reopened and notices under Section 148 of the Act was issued for the assessment years 2000 - 01 to 2005 - 06 and also notices under Sections 143(2), 142(1) of the Act, for the assessment year 2006 - 07 was also issued. The assessee filed revised returns of income, declaring the income which had escaped assessment. Assessee though suffered loss in the business, according to him, in order to buy peace in the department and to avoid protracted litigation, offered notional income. Subsequently, a scrutiny assessment was done for the assessment year 2006 - 07 and several additions and disallowances were made. Though there was no real income earned by the assessee and he had actually suffered loss, the assessee in the course of the assessment proceedings accepted the additions and disallowances as made by the assessing officer, in order to buy peace with the department and to avoid protracted litigation. Accordingly, he paid tax and interest. Subsequently, notices under Section 274 r/w. Section 271(1)(c) of the Act were issued to the assessee to show cause as to why penalty under Section 271(1)(c) should not be initiated for the addition on account of disallowance of the claim of sundry creditors and disallowance of interest paid to the fixed deposit holders as well as interest on gold loans provided. Assessee filed his reply denying all the allegations. Again he reiterated his stand in order to buy peace, though he was not liable to pay any tax, he paid the same. The assessing officer on consideration of the said reply was of the view that not only the defense set up by the assessee is not true but it is false. Aggrieved by the said order, the assessee preferred an appeal before the lower appellate authority. The lower appellate authority dismissed the appeal by confirming the order of the assessing authority. The assessee again preferred an appeal challenging the order of the lower appellate authority before the Tribunal. The Tribunal on re -appreciation of the entire material on record, dismissed the appeal. Aggrieved by these three orders, the present appeal is filed.

(2.) LEARNED Counsel for the assessee assailing the impugned orders contend, 'though in the exercise books some amount were found, to whom the assessee had advanced loans, he had received neither the interest nor the principal. Therefore, the same was not taken into account and under those circumstances, in order to purchase peace, though not liable to pay tax, he paid the said amount. Merely because the assessee was not able to give the particulars of the creditors and agreed to pay the tax on those amounts, again to purchase peace, levy of penalty is not justifiable.' He further submits that 'even if the department is not satisfied with the explanation offered by the assessee, unless it is shown to be false, question of imposing penalty will not arise. In the instant case, there is no finding that the explanation offered by the assessee is false and therefore no penalty should have been imposed.'