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2015 (5) TMI 783 - AT - Income TaxPenalty levied u/s 271(1)(c) - CIT(A) deleted penalty levy - short term capital gain treated as income from other sources - Held that:- There is no dispute that after the search, additional income was offered at ₹ 1,50,000/- and long term capital gain has been shown as short term capital gain. It is also not in dispute that the entire sale consideration has been treated as income from other sources. The offer of additional income was made u/s 132(4) of the Act. The share transactions, purchase and sale of shares were duly reflected in the books of account of the assessee. The assessee has suo moto offered capital gain in its return of income. The assessment has been completed merely by changing the head of income i.e capital gain was treated as income from other sources. The facts relating to the share transactions were very much there in the return of income, therefore, it cannot be said that the assessee has filed any in-accurate particulars or has concealed the particulars of income. The decision of the Hon’ble Supreme Court in the case of Reliance Petroproducts Pvt. Ltd. (supra) squarely apply in this case. We, therefore, do not find any reason to interfere with the findings of the ld. CIT(A). - Decided against revenue. Penalty u/s 271(1)(c) - addition made on account of jewellery found at the time of search - Held that:- There is no dispute that in this group case, substantial additional income has been offered for taxation, therefore, possession of diamond jewellery at ₹ 7,41,320/- cannot be ruled out. However, we are not in appeal against the quantum addition but against the levy of penalty. Since the assessee group has already offered substantial amount, the benefit of telescoping cannot be denied. The diamond jewellery can be considered as having purchased out of the additional income, therefore, it cannot be said that it is a fit case for levy of penalty for concealment of particulars of income - Decided in favour of assesse. Penalty u/s 271(1)(c) - unaccounted cash found - Held that:- It is not a case where the assessee has not offered any explanation during the course of assessment proceedings. Not only the assessee offered the explanation but had also substantiated by cogent material evidence. Merely because of the addition of ₹ 5 lacs was accepted in the assessment proceedings would not ipso facto lead to levy of penalty u/s 271(1)(c) of the Act. Considering the facts that the cash in hand was duly reflected in the books of M/s Courtyard Bar & Restaurant and we do not find any reason for levy of penalty u/s 271(1)(c) of the Act - Decided in favour of assesse. Penalty u/s 271AAA - assessee has not explained the manner in which such income has been derived - Held that:- In the case of Pramod Kumar Jain (2012 (12) TMI 629 - ITAT CUTTACK) held that no definition could be given to the “specified manner” insofar as the very statement on oath u/s 132(4) certifies the manner on which the assessee is preferred to pay tax thereon. The inscribing in the books of account was taken care of by the assessee when he filed the returns in pursuance of notice u/s 153A accounting the assets. Therefore the penalty is not automatic if one of the purported conditions is not fulfilled although all the conditions have been agreed to of having fulfilled by the A.O. insofar as the tax and interest have been recovered, thus to delete the penalty so levied. - Decided in favour of assesse. Penalty u/s 271(1)(c) - disclosure of income in survey treated as the amount of income sought to be evaded - Held that:- The survey operation was conducted at the premises of the assessee on 26th July,2007. The return for the assessment year 2007-08 was not due on this date. The assessee offered the income for A.Y. 2007-08 and included the same in its return. The returned income was ₹ 52,60,033/-. The assessed income was ₹ 52,60,033/-. Thus the assessed income and the returned income are the same. No addition has been made in the assessment proceedings. We therefore do not find any reason for the levy of penalty u/s 271(1)(c) of the Act when no concealment of income has been detected as per the return of income of the assessee. - Decided
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