TMI Blog2017 (6) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... mber Assessee by : Sh. Ved Jain, Adv. Sh. Ashish Chadha, CA Revenue by : Sh. Amrit Lal, Sr. DR ORDER These appeals by the department are directed against the separate orders each dated 07.09.2016 of ld. CIT(A)-XXVI, New Delhi. 2. Since, the issues involved are common in all these appeals which were heard together so these are being disposed off by this consolidated order for the sake of convenience and brevity. 3. At the first instance, we will take up the appeal in ITA No. 6438/Del/2016 for the assessment year 2010-11. Following grounds have been raised in this appeal: 1. The CIT(A) has erred on facts and in law in deleting the penalty of ₹ 355/- on account of undisclosed foreign income levied u/s 271(1)(c) of the Act. 2. The appeal is being filed inspite of low tax effect as the case is covered in exception (d) of Para 8 of CBDT Circular No.21/2015 dated 10.12.2015. 3. The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or the during course of the hearing of the appeal. 4. From the above grounds, it is clear that the only grievance of the department relates to the deletion of penalty of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abundant caution. 2. The extra income of ₹ 1,150/- shown in the return was not on account of any concealment of income or inaccurate particulars of income in the earlier return. The said amount was offered voluntarily in the return of income. No such discrepancy/omission, etc. was found or noticed during the course of assessment as is evident from the assessment order. 3. Your honour will appreciate that a penalty can be levied only when there is any evidence to show that the assessee has earned any extra income which he has not declared in the original return or assessee has claimed an expenditure which was not allowable and claimed in the original return. 4. In the present case there is no such findings that there was any income over and above the income declared in original return of ₹ 1.150/- nor there is any finding that any expenditure claimed in the original return was not genuine. Thus in the original return filed by the assessee there was neither concealment of income nor furnishing of any inaccurate particulars of income. 5. Your honour will also appreciate that levy of penalty under Section 271(1)(c) of the Act is not automatic. Penalty p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings are there to deal with the issue of furnishing inaccurate particulars or concealment of income. 10. It is a fact that in present assessments, no addition whatsoever was made by the Ld. AO. It is also a fact that in the course of assessment proceedings, the AO did not lay his hands on any item of income, which the assessee had not declared in the return till the assessment, was framed. It is also a fact that the AO has accepted the return as it is. 11. As assessment and penalty proceedings deal with different aspects meaning thereby the assessment proceedings are to assess the income correctly whereas the penalty proceedings are there to deal with the issue of furnishing inaccurate particulars or concealment of income. 12. It is a fact that in present assessments, no addition whatsoever was made by the Ld. AO. It is also a fact that in the course of assessment proceedings, the AO did not lay his hands on any item of income, which the assessee had not declared in the return till the assessment, was framed. It is also a fact that the AO has accepted the return as it is. 13. Your honour, the scheme of section 271(1)(c) visualizes imposition of penalty when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he context of furnishing of inaccurate particulars. The expression 'particulars1 refers to facts, details, specifics, or information about someone or something. Therefore, the plain meaning of the expression furnishing of inaccurate particulars of income' implies furnishing of details or information about income which is not in conformity with facts or truth. The details or information about income deal with factual details of income and this cannot be extended to areas which are subjective, such as status of taxability of an income, admissibility of a deduction and interpretation of law. The furnishing of inaccurate information, thus, relates to furnishing of/actually incorrect details and information about income, so that, that part of income could be covered up by the assessee. In the instant case, what had been treated as furnishing of inaccurate particulars was offering an income on ad hoc basis, i.e. an additional income offered. The A.O. had very apparently proceeded to treat the assessee's additional income so offered as furnishing of inaccurate particulars. What is a correct claim and what is an incorrect claim is a matter of perception, which in the instant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of penalty. He cannot record any satisfaction during the course of survey. Decision to initiate penalty proceedings is taken while making assessment order. It is thus obvious that the expression 'in the course of any proceedings under this Act' cannot have the reference to survey proceedings. It necessarily follows that concealment of particulars of income or furnishing of inaccurate particular of income by the assessee has to be in the return filed by him. The assessee can furnish the particulars of income in his return and everything would depend upon the return filed by the assessee. This view gets supported by Explanations 4, 5 and 5A of section 271 (1). Obviously no penalty can be imposed unless the conditions stipulated in the said provisions are duly and unambiguously satisfied. Section 271(1)(c) has to be construed strictly. Unless it is found that there is actually a concealment or non-disclosure of the particulars of income, penalty cannot be imposed. There is no such concealment or non-disclosure, as the assessee had made a complete disclosure in the return and offered the surrendered amount for the purposes of tax . This is an identical case, where survey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT Vs Sh. Neeraj Jindal and Others (2017) 393 ITR 1 ACIT Vs Bikramjit Singh Kalra in ITA Nos. 6436 6437/Del/2016 order dated 28.04.2017 Prem Arora Vs DCIT (2012) 149 TTJ 590 (ITAT Del.) Pawan Kumar Gupta Vs ACIT in ITA Nos. 4652 to 4655/Del/2011 order dated 25.07.2014 ADIT Vs Nortel Networks Ltd. (2013) 144 ITD 639 (ITAT Del.) 11. I have considered the submissions of both the parties and carefully gone through the material available on the record. It is noticed that an identical issue has been decided by the Hon ble Jurisdictional High Court in the case of Pr. CIT Vs Sh. Neeraj Jindal and Others (2017) 393 ITR 1 (supra) wherein their lordships in para 21 has held as under: 21. Thus, it is clear that when the AO has accepted the revised return filed by the assessee under Section 153A, no occasion arises to refer to the previous return filed under Section 139 of the Act. For all purposes, including for the purpose of levying penalty under Section 271(1)(c) of the Act, the return that has to be looked at is the one filed under Section 153A. In fact, the second proviso to Section 153A(1) provides that assessment or reassessment, if any, relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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