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2019 (10) TMI 285 - ITAT MUMBAIPenalty levied u/s 271(1)(c) - difference in original return of income and revised return - difference in the items of the profit & loss account filed along with the original return of income submitted on 30.09.2011 and the revised return on 25.09.2012 - HELD THAT:- Section 143(2) states that where a return has been furnished u/s 139, the AO, if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not under paid the tax in any manner, shall serve on the assessee a notice requiring him, on a date to be specified therein, either to attend the office of the AO or to produce, or cause to be produced before the AO any evidence on which the assessee may rely in support of the return. For the purpose of making assessment, the AO may serve on any person a notice u/s 142(1) to produce or cause to be produced, such accounts or documents as the AO may require. Thus in the instant case, the assessee had no intention to declare its true income in the original return of income filed on 30.09.2011. Had it been the intention of the assessee to make a full and true disclosure of its income, it would have filed a revised return of income before the issuance of the notice 143(2)/ 142(1) by the AO. AO has rightly held that the assessee has deliberately and consciously failed to furnish full and true particulars of income and attempted to conceal income. To hold otherwise would be to exalt artifice over reality and to deprive the statutory provisions in question all serious purpose. However, the penalty is not levyable on the disallowance of ₹ 49,791/- (disallowance u/s 14A) and ₹ 5,00,000/- (salary). The AO is directed to restrict the levy of penalty u/s 271(1)(c) to 100% of the difference between revised income (₹ 23, 92, 594/-) and original income (₹ 9,733/-). - Decided partly in favour of assessee.
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