TMI Blog2015 (12) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, in our considered view, the assessee cannot be held guilty of concealing the particulars of income. - Decided in favour of assessee - I.T.A. No.221/Ahd/2015 - - - Dated:- 9-10-2015 - SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER And SHRI KUL BHARAT, JUDICIAL MEMBER For The Appellant : Shri A.L. Thakkar, AR For The Respondent : Shri Narendra Singh, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by the Assessee is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-9, Ahmedabad [ CIT(A) in short] dated 09/12/2014 pertaining to Assessment Year (AY) 2010-11. The Assessee has raised the following grounds of appeal:- 1. The learned Commissioner of Income Tax (Appeals) has erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,99,35,135/- levied u/s.271(1)(c) of the Act. The ld.counsel for the assessee submitted that the action of the authorities below is ex-facie without authority of law and highly arbitrary and unjustified. He submitted that there is no dispute with regard to the fact that the assessee had filed return of income before the due date of filing of such return. The assessee had declared and disclosed the amount on which penalty has been levied. He submitted that the case-laws as relied upon by the ld.CIT(A) are not applicable on the facts of the present case. He submitted that a bare-reading of section 271(1)(c) would make it clear that the action of the authorities below is unjustified, illegal and without authority of law. The ld.counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e due date of filing of such return, declaring total income of ₹ 6,29,21,560/-. A survey action was conducted on 01/07/2010 at the premises of the assessee and during the course of survey proceedings, the assessee admitted to the introduction of share capital of ₹ 5,86,50,000/-. The Revenue s contention is that, in case, the survey would have not been carried out at the premises of the assessee, it might have not included this amount into its return of income. Before adverting to the rival contentions, it would appropriate to reproduce the relevant provision of law, for the sake of clarity. Section 271:- Failure to furnish returns, comply with notices, concealment of income, etc. (1) If the [Assessing Officer] or the [* ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvey. Therefore, the AO has proceeded on the basis of assumption in our view, the penalty proceedings cannot be based on conjectures and surmises. Further, as per AO, there was an obvious and deliberate concealment of income under the meaning of concealment of income as per section 271(1)(c) of the Act. In our opinion, this observation of the AO is contrary to the provisions of law, since it is purely based upon conjectures and surmises. The initiation of penalty proceedings is different from the assessment proceedings u/s.143(3) of the Act. It is not in dispute that the return so filed by the assessee including the amount was a valid return and same was duly filed within the time prescribed under the law. In our considered view, unless t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pies of Income Tax Returns and assessment orders and blank share transfer deeds duly signed, have been impounded in the course of survey proceedings under Section 133A conducted on 16.12.2003, in the case of a sister concern of the assessee. The survey was conducted more than 10 months before the assessee filed its return of income. Had it been the intention of the assessee to make full and true disclosure of its income, it would have filed the return declaring an income inclusive of the amount which was surrendered later during the course of the assessment proceedings. Consequently, it is clear that the assessee had no intention to declare its true income. It is the statutory duty of the assessee to record all its transactions in the books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of the assessment proceedings. Consequently, it is clear that the assessee had no intention to declare its true income. In the present case, the assessee has included the amount into the return of income, therefore, in our considered view, the assessee cannot be held guilty of concealing the particulars of income. The Coordinate Bench of the Tribunal (ITAT A Bench Ahmedabad) in ITA No.1960/Ahd/2011 for AY 2006-07 in the case of ITO vs. Shri Valibhai Khanbhai Mankad, vide its order dated 27/02/2015 has confirmed the view of the ld.CIT(A) by observing as under:- 6. . The Id. CIT(A) has followed the decision of this Bench of the Tribunal rendered in the case of DCIT Vs. Dr. Satish B Gupta (42 SOT 48)(Ahd). Ld. CIT-DR h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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