TMI Blog2016 (8) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... well as advance tax has been paid by the assessee not only before the due date of filing of return of income but also before search. Under these circumstances, we have to see the intention of assessee as to whether he wants to conceal the income or not. In the interest of justice and keeping in view the proposition of law advanced with respect to extended date of filing of return u/s.153A, which is supported by judicial pronouncements as cited by ld. AR, we restore the matter back to the file of AO for deciding afresh after giving due opportunity to the assessee. Non payment of admitted tax as required under section 249(4)(a) - Held that:- Considering the fact that there is tax deducted at source out of assessee’s income which has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings get abated and assessee had no choice but to wait for receipt of notice u/s.153A. The AO issued notice u/s.153A, which was received only after 31-3-2010 giving the time of 20 days. The assessee filed return of income on 23-4-2010 i.e after 31-3-2010 due to the reason that search and seizure action took place on 5-3-2009 before the due date of filing of return of income u/s.139(4) i.e. 31-3-2009. As per ld. AR since notice u/s.153A received only after 31-3-2010 the assessee had no option but to file the return as per the provision of section 153A of the Act. The assessee filed his return declaring taxable income ₹ 4,13,78,790/- on 23-4-2010, which also included estimate disclosure of ₹ 3 crore made u/s.132(4) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A to Section 271(1)(c) of the I.T.Act. 6. By the impugned order, CIT(A) confirmed the action of AO, against which assessee is in further appeal before us and has raised following grounds :- 1. On the facts and circumstances of the case and in law Ld. Commissioner of Income Tax (Appeals) has erred in confirming penalty imposed u/s.271(1)(c) without appreciating the facts of the case. 2. On the facts and circumstances of the case and in law Ld. Commissioner of Income Tax (Appeals) has erred in not excluding the tax already paid by way of Advance Tax TDS while confirming the penalty. He ought to have reduced the quantum of penalty to that extent. 7. Similarly for the assessment year 2007-08, the contention of ld. AR was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be treated as filed u/s. 139(1). It was contended by ld. AR that from the aforesaid facts your honour will appreciate and admit that Explanation 5A to Section 271 (1)(c) is not applicable to the impugned appellant hence it cannot be said that appellant has concealed either particulars of income or have furnished inaccurate particulars of income. Therefore ld. AR requested to delete unwarranted penalty levied on the returned income accepted as it is. As per ld. AR the aforesaid proposition has been explained by various Hon'ble High Court in various judicial pronouncements sated here under: CIT v Rajesh Kumar Jalan (2006) 286 ITR 276 (Gauhati) CITvJagriti Aggarwal (2011) 3391TR 610 (P H) CIT v Jagtar Singh Chawla ITA No. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al contentions, carefully gone through the orders of authorities below and found from the record that in both the years under consideration the corresponding income with respect to the tax deducted at source and also the amount of advance tax paid by the assessee not only before the last date of financial year but also before search is equal to the amount of income returned by the assessee. It means entire income of the assessee was subject to TDS or the assessee himself has advance tax paid before the end of the financial year. Under these circumstances contention of ld. AR that the AO was not justified in holding that assessee has concealed its income have some merits. We also found that TDS as well as advance tax has been paid by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance was placed on the decision of Hon ble Gauhati High Court in the case of Omprakash Gattani, 242 ITR 638. In view of these facts, it was contended that assessee has paid entire tax amount and that the appeal was wrongly not been admitted by the CIT(A) u/s.249A. 14. Considering the fact that there is tax deducted at source out of assessee s income which has to be taken into account while computing the tax paid by the assessee and also considering the challans placed on record with regard to actual payments of tax, in the interest of justice, we restore this appeal to the file of CIT(A) for deciding afresh on merits as per provisions of Section 250 sub section 6 of the I.T.Act. 15. In the result, appeal of the assessee is allowed for ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
