TMI Blog2016 (9) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee, and if the income returned by the assessee under a particular head so assessed by the AO under another head of income, penalty is not imposable under section 271(1)( c) of the Act. - Decided in favour of assessee - I.T.A. No.1639 and 1640/Mum/2015 - - - Dated:- 26-7-2016 - SHRI JOGINDER SINGH (JM), AND RAJESH KUMAR,(AM) For The Appellant : Shri Dinesh Shah For The Respondent : Shri H M Wanare ORDER Per RAJESH KUMAR, Accountant Member : These two appeals are filed by the assessee against the two separate orders passed by the ld.CIT(A)-16, Mumbai dated 22.12.2014 for the assessment years 2006-07 and 2007-08. Since these appeals pertain to the same single and same issue of penalty levied by the AO u/s 271(1)(c), these appeals are clubbed and heard together and are being decided by this common order for the sake of convenience. 2. First we shall take up the appeal for the assessment year 2006-07 3. Only issue raised in the grounds of appeal is against the penalty of ₹ 81,190/-levied by the AO and confirmed by the ld.CIT(A) under section 271(1)( c) of the Act for declaring the income from letting out of the office premises with va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO finally imposed the penalty of 100% of the tax sought to be evaded vide order dated 21.2.2014 passed under section 271(1)(c) of the Act. Aggrieved by the order of AO, the assessee preferred an appeal before the ld..CIT(A), who also dismissed the appeal of the assessee and confirmed the action of the AO by observing and holding as under : 3. Decision After careful perusal of the assessment order and written submissions of the A/R of the appellant it has been observed that in the return of income filed on 20.11.2006 the income was declared under the head profit and gain of business and professions. It is only when the case of the appellant company for A.Y. 2008-09 was taken up for scrutiny it was detected by the AO that the income declared is in fact rental income which should have been declared under the head income from house property and was assessee as such. No appeal has been filed against the above said order of the AO for A.Y. 2008-09. The assessment proceedings for A.Y. 2006-07 and 2007-08 was reopened and notices u/ s 148 were issued in both the assessment years. The appellant company was filed revised return of income on 17.01.2013 i.e. after the period prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not release assessee from mischief of penal proceedings under section 271(1)(c) In terms of section 271(1)(c), Assessing Officer has to satisfy whether penalty proceedings be initiated or not during course of assessment proceedings and Assessing Officer is not required to record his satisfaction in a particular manner or reduce it into writing Where offer of surrender of certain amount received as share application money was made by assessee in view of detection made by Assessing Officer in search conducted in case of assessee's sister concern, said surrender of income not being voluntary in nature, authorities below were justified in levying penalty under section 271 (l)(c) There is not even a whisper in the written submissions of the A/R of the appellant on the above said judgment as it is squarely applicable to the facts of the case because the appellant had filed revised return only after the detection by the AO. Hence the grounds of appeal is dismissed 5. The ld. AR vehemently submitted before us that the assessee had fully disclosed all the material facts regarding rental income earned from letting out of office premises in the return of income fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing for dismissal of the assessee s appeal. 6. We have carefully considered the rival submissions and perused the materials placed before us including the orders of authorities below and case laws relied upon by the ld AR of the assessee. We find that the assessee has shown income from rent of office premises under the head business and profession and also claimed expenses against that income calculating the income from business ₹ 1,44,562/- and after adjustment of brought forward losses from assessment years 2004-05 of ₹ 63,500 , the returned income came to ₹ 81,062/-. The assessee s income from rent of office premises for assessment year 2008-09 was assessed under the head income from house property by the AO and the assessee did not file any appeal against the order of the AO and thus accepted the assessment as made by the AO. Now the AO on the basis of assessment year 2008-09 reopened the assessment on 26.11.2012 by issuing notice u/s 148. The assessee itself showed and returned the income from renting of office premises under the head income from house property after claiming the deduction u/s 24 of the Act thereby showing the income of ₹ 3,22,258/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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