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M/s Ramesh D Shah Versus The Asstt. Commissioner of Income Tax

2016 (10) TMI 590 - ITAT MUMBAI

Penalty u/s 271(1)( c ) - income declared by the assessee in the return of income u/s 153A - Held that:- The Hon’ble Gujarat High Court in the cast of Kirit Dahyabhai Patel V/s ACIT [2015 (1) TMI 201 - GUJARAT HIGH COURT] held that for all practical purposes return filed in response to notice u/s 153A of the Act has to be as return furnished u/s 139(1) of the Act and therefore, if, any undisclosed income as admitted by the assessee in the statement recorded under section 132(4) of the Act during .....

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, AM Assessee by : Shri Vijay Mehta Revenue by : Shri B S Bist ORDER Per Rajesh Kumar, AM This is an appeal filed by the assessee challenging the order dated 3.07.2012 passed by the ld.CIT(A)-41, Mumbai upholding the penalty imposed u/s 271 (1)(c) r.w.s274 of the Income Tax Act, 1961 which pertains to assessment year 2004-05. 2. The issue raised is against the upholding the penalty on an income of ₹ 18,50,000/- by the ld.CIT(A) as imposed by the Assessing Officer u/s 271(1) (c) r.w.s.274 o .....

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2007, a group with which he is connected. In response to the notice issued u/s 153A, the assessee filed return declaring total income of ₹ 8,14,95,450/- including the undisclosed income of ₹ 28,71,601/-. During the course of search and seizure operation, since incriminating documents and papers were seized and assessee surrendered in his hands a sum of ₹ 1,07,73,825/- over different assessment years. The assessee filed return of income for the instant assessment year u/s 153A o .....

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r. The assessment was framed u/s 143(3) was completed on 27.11.2006 assessing the total income at ₹ 8,14,95,450/-. After the search the assessment was completed u/s 143(3) r.w.s. 153A of the Act vide order dated 31.12.2009 assessing the total income at ₹ 8,18,70,760/- and accordingly, the AO initialed penalty proceedings under section 271(1)(c) of the Act. The AO, thereafter imposed penalty of ₹ 9,71,319/- at the rate of 100% of the tax sought to be evaded on ₹ 28,71,601/ .....

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d by the assessee in the return of income declared in the return filed u/s 153A of the Act on the basis of seized material-Annexure-2 at pages 16 and 17 by observing and holding as under : Keeping in view the facts and circumstances and the decisions of Hon ble Tribunal, it is held that the assessee has concealed its income as per the seized page 17 of annexure A-2 which was not declared in the original return filed, therefore, it is held that the assessee has concealed the income to the tune of .....

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by the assessee as undisclosed income and declared in the return filed in response to notice issued under section 153A of the Act and accordingly the taxes were paid thereon. The ld. AR vehemently submitted that it was a case of non disclosure of income but the disclosure was made during the statement under section 132(4) of the Act and this amount was disclosed in the return of income filed in response to notice issued u/s 153A and due taxes were paid and therefore penalty was not leviable. The .....

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8 dated 25.7.2012 and D) Unimark Remedies Ltd V/s ACIT in ITA No. 409/Mum/2008 dated 26.9.2012 (Mum Tribunal) Finally, the ld.AR prayed that since the assessee has declared an income in the return of income filed in response to the notice issued u/s 153A and paid due taxes, the penalty deserved to be deleted in view of the ratio laid down in the above said decisions. 5. The ld. DR heavily supported the orders of authorities below and submitted that the assessee has not declared income in the ori .....

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to and relied upon by the rival parties. In the case before us, we find that the assessee has declared undisclosed income in the return of income filed in response to the notice u/s 153A of the Act which was admitted by the assessee in the statement recorded u/s 132(4) of the Act which was recorded during the search operation on the assessee. 7. Now, the issue before us is whether the income which is declared by the assessee in the return of income u/s 153A on which due taxes have been paid is .....

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ppellate Authority upheld the penalty on undisclosed income of ₹ 18,50,000/- by holding that the said income was not disclosed by the assessee in the return filed u/s 139(1) of the Act and therefore held that same to be concealed income on the part of the assessee. The submissions of the ld. AR primarily were on the point that since the income has been shown in the return of income filed u/s 153A of the Act and due taxes were paid thereon has been accepted by the AO during the assessment p .....

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ection 153A, original return of income filed under section 139 cannot be considered - Held, yes - Whether concealment of income has to be seen with reference to additional income brought to tax over and above income returned by assessee in response to notice issued under section 153A and, therefore, once returned income under section 153A is accepted by Assessing Officer, it can neither be a case of concealment of income nor furnishing of inaccurate particulars of such income - Held, yes - Searc .....

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ssion of cash throughout period covered by search assessments - Held, yes [In favour of assessee] Words and Phrases : Word 'pending' occurring in the second proviso to section 153A and words 'all other provisions of this Act shall apply to the assessment made under this section' as occurring in Explanation (i) to section 153A of the Income-tax Act, 1961 In the case of Vrajlal T Gala(supra) Mumbai Bench of the Tribunal has held as under : Section 271(1)(c) of the Income-tax Act, 1 .....

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