TMI Blog2015 (6) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Assessing Officer could not be furnished by the assessee and 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed under section 143(3) on 22.01.2013. 3. During the course of assessment proceedings the assessee was required to provide the details of on money received from each member for booking 108 flats. The assessee failed to provide this information and, therefore, penalty proceedings were initiated under section 271(1)(c) of the Act for submitting inaccurate particulars of income. In the penalty order the AO observed that the core issue in the case of the assessee was what constitutes concealment of particulars of income or furnishing inaccurate particulars of such income. The legal issue involved here is whether particulars of income can be said to have been concealed even if quantum of returned income is same as assessed income. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation 4 to section 271(1)(c) of the Act which provides that expression of amount of tax sought to be evaded means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished. He, therefore, held that the AO was fully justified in levying penalty under clause (c) of explanation 4 of section 271(1)(c) of the Act. 6. Before us the ld. AR of the assessee submitted that during the course of search the assessee made disclosure of ₹ 7.80 cores on 6.1.2011 and 7.1.2011 and in the return filed for AY 2001-12 on 30.09.2011 the assessee disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particulars of income were concealed by the assessee or not would depend upon whether this concealment had reference to the return filed by the assessee. The words in the course of any proceedings under this Act were prefaced by the satisfaction of the Assessing Officer or the Commissioner (Appeals). When the survey was conducted the question of satisfaction of the Assessing Officer or the Commissioner (Appeals) or the Commissioner did not arise. It was the Assessing Officer who initiated the penalty proceedings and directed the payment of penalty. He had not recorded any satisfaction during the course of survey. The decision to initiate penalty proceedings was taken while making the assessment order. Thus, the expression in the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of on money of ₹ 7.80 crores. 10. Thereafter the assessee in the regular return filed by it disclosed inter alia income of ₹ 7.80 crores as received as on money. The assessee disclosed its total income at ₹ 7,81,17,501/- in the return of income and was assessed under section 143(3) vide order dated 22.01.2013 at the returned income of ₹ 7,81,17,501/-. Thus there was no difference in the returned income and assessed income. 11. According to the Assessing Officer the assessee could not furnish names of the persons from whom on money was received and therefore he considered the particulars of income of on money as inaccurate and therefore levied penalty under section 271(1)(c). 12. On appeal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 271(1)(c) can be levied with the help of provisions of explanation 4 to section 271(1)(c) of the Act. 17. We find that the Hon ble Gujarat High Court in Tax Appeal No.1181 of 2010 with Tax Appeal No.1182 of 2010 to TaxAppeal No.1183 of 2010 in the case of Kirit Dahyabhai Patel vs. Asstt. Commissioner of Income-tax, vide order dated 03/12/2014 held as under :- 13. Considering the facts and circumstances of the case and also considering the decisions relief 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 inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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