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TMI Blog2015 (5) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... rn. This group is running various hotels, liquor bar and restaurants etc. They also own airconditioned hall which are let out for functions like marriage reception, birthday party etc. The assessee group in their letter dtd. 24-9-2009 made u/s 134(4) of the Act admitted undisclosed income of Rs. 2 crores in the various hands and head. 4. For the year under consideration, return was filed on 17-11-2003 declaring total income at Rs. 13,54,908/-. After the search and pursuant to the notice, return was filed on 1-12-2008 which included additional income as per the statement made u/s 132(4) of the Act at Rs. 1,50,000/-. The total returned income was Rs. 15,04,910/- which was assessed at Rs. 15,39,837/- 5. Penalty proceedings were initiated u/s 271(1)(c) of the Act. The reason for initiating penalty is that in the original return filed, the assessee has offered long term capital gain, however, when consequent to the search, the return was filed, the said long term capital gain was offered as short term capital gain and in the assessment the entire sale consideration have been assessed as income from other sources. The A.O. was convinced that the assessee has filed in-accurate particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). Appeal filed by the Revenue is accordingly dismissed. Now, we shall take up ITA No. 1359/Mum/2012 (Revenue's appeal) A.Y. 2004-05. 9. This is an appeal by the Revenue against the deletion of penalty levied u/s 271(1)(c) of the Act at Rs. 1,96,393/-. 10. This appeal by the Revenue is late by 10 days. The delay is condoned. 11. We find that the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f levy of penalty u/s 271(1)(c) of the Act at Rs. 3,09,618/-. 17. This appeal is late by 10 days. The delay is condoned. 18. This appeal by the Revenue cannot be entertained as it is covered by the CBDT Instruction No. 5/2014 (F.No. 279/MISC.142/2007-ITJ (PT) dt. 10.7.2014. We accordingly dismiss this appeal as not maintainable. Now, we shall take up Revenue's appeal in ITA No. 1361/Mum/2012 for A.Y. 2004-05. 19. This appeal by the Revenue is preferred against the deletion of penalty levied u/s 271(1)(c) of the Act amounting to Rs. 1,95,554/-. This appeal cannot be entertained as the amount involved is less than Rs. 3 lakhs covered by CBDT vide Instruction No. 3 of 2011 dated 9-2-2011 reported in (2011) 332 ITR 1 (Statutes). Accordingly this appeal is not maintainable, hence, dismissed. Now, we shall take up assessee's appeal in ITA No. 220/Mum/2012 for A.Y. 2008-09 (Shri Uday Shetty) 20. This is an appeal by the assessee against the levy of penalty u/s 271(1)(c) of the Act. 21. During the course of search and seizure operation, cash amounting to Rs. 5,09,937/- was found out of which cash of Rs. 5 lacs was seized. The assessee was asked to explain the source of the cash found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e A.O. to delete the penalties levied u/s 271(1)(c) of the Act. 27. In the result, both these appeals are allowed. Now, we shall take up assessee's appeal in ITA No. 221/Mum/2012 for A.Y. 2008-09 (Shri Gunapal Shetty) 28. This is an appeal by the assessee against the levy of penalty u/s 271AAA of the Act. 29. The A.O. has levied the penalty on the undisclosed income of Rs. 3 laks which was offered during the course of search u/s 132(4) of the Act on the ground that the assessee has not specified the manner in which such income has been derived nor substantiated the manner in which the undisclosed income was derived. 30. Facts of the case are that during the course of search proceeding, the assessee has disclosed income of Rs. 3 lakhs in the statement recorded u/s 132(4) of the Act. U/s 271AAA, penalty cannot be levied if the following conditions are fulfilled:- (i) In the course of search a statement made u/s 132(4) of the Act, the assessee admits undisclosed income and certified the manner in such income has been derived; (ii) Substantiated the manner in which the undisclosed income was derived and; (iii) Paid the tax, with interest if any, in respect of the undisclosed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore further appeal on before us. 36. On identical set of facts in the case of Shri Gunapal Shetty in ITA No. 221/Mum/2012 for A.Y. 2008-09, we have deleted the penalty so levied u/s 271AAA of the Act. In our detailed discussion given in ITA No. 221/Mum/2012 (supra), the penalty levied in this case also deleted. Appeal filed by the assessee is allowed. Now, we shall take up assessee's appeal in ITA No. 219/Mum/2012 for A.Y. 2007-08 (Sai Leela Hotel Pvt. Ltd.) 37. This is an appeal by the assessee against the levy of penalty u/s 271(1)(c) of the Act amounting to Rs. 2,69,280/- 38. Facts of the case are that a survey u/s 133A of the Act was conducted at the business premises on the assessee on 26-7-2007. During the course of survey operations, the assessee had declared an amount of Rs. 8 lacs and offered the same in its return of income. The return was accepted and assessed as such. The penalty has been levied on the amount of Rs. 8 lacs as the same was treated as the amount of income sought to be evaded. The assessee carried the matter before the ld. CIT(A) but without any success. 39. Before us, the ld. Counsel for the assessee reiterated what has been submitted before the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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