TMI Blog2015 (4) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... wn 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income. 5. On appeal, the CIT(A) deleted the penalty by observing that the assessee had offered additional income of ₹ 26.00 lakhs in her return of income u/s.153A and has paid the tax along with interest thereon. The said disclosure has been made in respect of unaccounted investments in assets and the same stands accepted by the AO in the assessment order. He observed that the facts of the assessee s case are covered by the decision of the Hon ble Court of Rajasthan in the case of CIT Vs. Kanaiyalal, (2008) 299 ITR 19 (Raj) and CIT Vs. Mishrimal Soni, (2007) 289 ITR 77, and the decision of Hon ble Madras High Court in the case of CIT Vs. S.D.V. Chandru, (2004) 266 ITR 175 (Mad), wherein it was held that the immunity from penalty under Explanation-5 of section 271(1)(c) of the Act cannot be taken away for the simple reason that income disclosed by the assessee in his statement u/s.132(4) for a particular year was spread over in the return of several years, and more so, when the AO had also made assessment in those assessment years as returned by the assessee. The Rajasthan High Court in the case of CIT Vs. Mishrinal Soni (supra) has held that Explanation-5 to section 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Gujarat High Court vide order dated 03-12-2014 in Tax Appeal Nos. 1181-1185 of 2010 has reversed the order of Hon ble Tribunal by holding as under:- 13. 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 153A 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(l)(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. 14. Further, in the present case, it appears from the record that the assessees had satisfied all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,680/-. The assessment was made under section 143(3) r.w.s. 153A of the Act which was completed on 30.6.2008, wherein addition of ₹ 25,36,720/- for unaccounted investment in land was made by the AO. 12. On appeal, the CIT(A) confirmed action of the AO. 13. Thereafter, the AO levied penalty |under section 271(1)(c) of the Act on the said addition of ₹ 25,36,720/- amounting to ₹ 8,67,700/- for concealment of income. 14. On appeal there against, the CIT(A) confirmed the penalty. 15. Before us, the AR of the assessee filed copy of the order of this Bench of the Tribunal in the case of quantum appeal of the assessee in IT(SS)A.No.187, 240 and 241/Ahd/2010 order dated 28.8.2014 and submitted that the Tribunal has restored the addition of ₹ 25,36,720/- on which penalty has been levied, to the file of the AO for fresh adjudication of the issue. Hence, it was his submission that the issue of penalty should also be restored to the file of the AO for fresh adjudication in the light of the decision taken in the set aside proceeding. 16. The DR agreed with the submission of the assessee. 17. In view of the above submissions of both the parties, we set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Gujarat High Court has decided the following substantial question of law: Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in law in restoring the penalty imposed under section 271(1)(c) of the Act holding that benefit under explanation 5 to section 271(1)(c) of the Act would be available only for period where due date for filing the return under section 139(1) of the Act had not expired.? 24. The Hon ble Gujarat High Court held as under: 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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