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TMI Blog2015 (6) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... .1.2011 in the case of Savalia Group, residential premise of Shri Maganbhai H. Bhakhar situated 86/1, H. Colony, Nehrunagar Char Rasta, Ambawadi. In the statement recorded on 6.1.2011 & 7.1.2011 under section 132(4) of the Act, Shri Maganbhai H. Bhakhar admitted an amount of Rs. 7,80,00,000/- as undisclosed income. The disclosure in the hands of assessee firm was made in relation to ''on money'' received from various parties for development of projects of ''Copper Stone'' near Shridhar Bunglow, Thaltej. The scheme contained 108 flats and assessee had disclosed Rs. 7.80 crores as ''on money''from 108 members. The same was disclosed by the assessee in the return of income and was assessed to tax by the AO vide order passed under section 143(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty of the assessee to record all his transaction, investment, expenditure and income in the books of account along with source of payments and receipt and to declare its true income in the return of income filed in every year. 5. There are ample judicial pronouncements wherein it has been held that even surrendering of income or filing of revised return does not absolve the assessee from the applicability of penalty proceedings u/s 271(1)(c). Since the assessee did not record the unaccounted on money received in the books of accounts, the assessee failed to show true and correct income in the books of account maintained. The CIT(A) also observed that the AO levied the penalty under sub-clause (c) of explanation 4 to section 271(1)(c) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty under explanation 4 renders the appellate order passed by the CIT(A) as bad in law. 7. He further relied on the decision of Hon'ble Delhi High Court in the case of CIT vs.SAS Pharmaceuticals (2011) 335 ITR 259 (Del) wherein it has been held -''that clause (c) of section 271(1) of the Act authorizes imposition of penalty when the Assessing Officer is satisfied that the assessee had either concealed particulars of his income or furnished inaccurate particulars of such income. It was not a case of furnishing inaccurate particulars of income, as in the Income-tax return, particulars of income had been duly furnished and the surrendered amount was duly reflected in the return. The question whether the particulars of income were concealed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alment or nondisclosure as the assessee had made a complete disclosure in the return and offered the surrendered amount for the purposes of tax."' 8. On the other hand, the ld. DR relied on the order of ld. CIT(A). 9. We have heard the rival submissions and perused the orders of the lower authorities and materials available on record. In the instant case the Assessing Officer levied penalty of Rs. 2,41,02,000/- on the ground of furnishing of inaccurate particulars of income in respect of "on money'' of Rs. 7.80 crores. The relevant factors are that a search and seizure operation was carried out in the case of the assessee on 6.1.2011 in the course of which the assessee disclosed earning of ''on money'' of Rs. 7.80 crores. 10. Thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore for this failure of the assessee he levied penalty under section 271(1)(c) of the Act. In our considered view for such a failure penalty under section 271(1)(c) cannot be levied. Penalty under section 271(1)(c) can be levied only for either concealment of income or for furnishing inaccurate particulars of income. Therefore, the Commissioner of Income-tax (Appeals) was not justified in confirming above levy of penalty. 16. Further explanation 4 to section 271(1)(c) explains the procedure to calculate the quantum of tax sought to be evaded and therefore, in a case where returned income and assessed income are same, no penalty under section 271(1)(c) can be levied with the help of provisions of explanation 4 to section 271(1)(c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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