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2015 (4) TMI 787 - AT - Income TaxPenalty for unaccounted income - Income disclosed in the return of income & paid tax with interest thereon - Penalty for unaccounted Investment in land - Held that:- We have considered rival submissions and perused the orders of the lower authorities. We find that the issue is covered in favour of the assessee, by the order of this Tribunal [2015 (4) TMI 664 - ITAT AHMEDABAD], dated 30-1-2015 in the case of the assessee itself. Further, in the present case, it appears from the record that the assessees had satisfied all the conditions which are required for claiming immunity from payment of penalty under section 271(1) of the Act. The provision does not specify any time limit during which the aforesaid amount i.e. the amount of penalty with interest has to be paid. Admittedly when the assessees herein have paid the entire amount with interest, the Assessing Officer ought to have granted them immunity available under Section 27I(1)(C) of the Income Tax Act. In view of the aforesaid facts of the case and also the principle laid down in the decisions relied upon by the learned senior counsel for the appellant more particularly the principle laid down in the case of Gebilal Kanhailal [2004 (7) TMI 86 - RAJASTHAN High Court] and Abdul Rashid [2013 (5) TMI 328 - CHATTISGARH HIGH COURT], we are of the considered opinion that the penalty under Section 271(1) (C) of the income Tax Act cannot be levied on the income shown in the return filed under Section 153 of the I.T. Act. Before us, Revenue has not brought any binding contrary decision in its support. We therefore respectfully following the decision of Hon’ble Gujarat High Court in the case of Kirit Dayabhai Patel [2015 (1) TMI 201 - GUJARAT HIGH COURT], hold that no penalty is leviable in the present case and thus direct its deletion. - Decided against the revenue. In the case of Hon'ble Gujarat High Court decision of Kirit Dahyabhai Patel [2015 (1) TMI 201 - GUJARAT HIGH COURT], it was held that considering the facts and circumstances of the case and also considering the decisions relied upon by learned senior advocate for the appellant, we are of the considered opinion that the view taken by the Tribunal is erroneous. The CIT(A) rightly held that it is not relevant whether any return of income was filed by the assessee prior to the date of search and whether any income was undisclosed in that return of income. In view of specific provision of Section 153A of the I.T. Act, the return of income filed in response to notice under Section 153(a) of the I.T. Act is to be considered as return filed under Section 139 of the Act, as the Assessing Officer has made assessment on the said return and therefore, the return is to be considered for the purpose of penalty under Section 271(1) (c ) of the I.T. Act and the penalty is to be levied on the income assessed over and above the income returned under Section 153A, if any. Following the this decision, we set aside the order of the CIT(A) and delete the penalty. - Decided in favour of assessee.
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