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2022 (7) TMI 677 - AT - Income TaxLevy of penalty u/s. 271(1)(c) - portion of income relating to capital gain declared by the assessee in his return filed in response to notice u/s 148 - CIT-A held that it clearly proved that the assessee tried his best to evade taxes and filed return of income only when it was detected by the department - Assessee argued that mere fact of non-filing of return of income did not tantamount to concealment/furnishing inaccurate particulars of income for the purpose of levying penalty u/s. 271(1)(c) - HELD THAT:- As decided in CHHAGANLAL S UTERIYA VERSUS INCOME-TAX OFFICER [2011 (5) TMI 641 - GUJARAT HIGH COURT] position of law was that non filing of return per se would not attract penalty u/s 271(1)(c) of the Act. It thereafter noted Expl 3 to section 271(1)(c) and interpreting the same held that only on fulfillment of all conditions specified therein would penalty u/s 271(1)(c) be levied for no filing of return of income originally even if subsequently the assessee files the same in response to notice u/s 148 - penalty to be levied as per Expl 3, the assessee should be a nonfiler of return, no return ought to have been filed within the time specified for framing assessment u/s 153 of the Act and no notice u/s 142(1) /148 of the Act should have been issued to the assessee for filing return within this time period. Also the AO should be satisfied that the assessee had taxable income for the said year. The court interpreted that in such eventuality even if the assessee files return after the expiry of time u/s 153 of the Act in response to notice u/s 148 of the Act, he shall be deemed to have concealed particulars of his income and be liable for penalty u/s 271(1)(c). In the present case the assessee has demonstrated that the conditions specified in explanation 3 have not been fulfilled. He has pointed out that during the time period u/s 153 of the Act in the present case notice u/s 148 of the Act was issued to the assessee in response to which return was filed by him. The aforesaid fact has remained uncontroverted before us. In view of the same, we hold the issue is squarely covered in favour of the assessee by the decision of the Hon’ble jurisdictional High court. Thus we hold that no penalty in the present case was leviable on the assessee for not having disclosed his income of capital gains earned on a property sold. The penalty therefore confirmed by the Ld.CIT(A) on the same is directed to be deleted. - Decided in favour of assessee.
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