TMI Blog2017 (1) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... here that in assessment years 2007-08 and 2008-09, wherein the Department was in possession of information regarding non-disclosure of income by the assessee from share transactions, the income declared by the assessee from such transaction in the revised return of income has ultimately been accepted by the Department in assessment s completed under section 143(3) and assessee’s claim that no proceedings for imposition of penalty under section 271(1)(c) have been initiated remains uncontroverted by the Department. In the aforesaid facts and circumstances, in our opinion, it cannot be said that filing of revised return of income by the assessee offering additional income is not voluntary. Therefore, on consideration of overall facts and circumstances, we are of the view that there being no conscious or deliberate act on the part of the assessee to either conceal particulars of income or furnish inaccurate particulars of income imposition of penalty under section 271(1)(c) is uncalled for. - Decided in favour of assessee - I .T.A. No. 1282/Mum/2013 - - - Dated:- 7-11-2016 - SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Assessee : Shri K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of income for assessment years 2004-05 to 2007-08 which return of income were not filed u/s 139 of the Act wherein the assessee had declared additional income over the income shown in the regular return of income filed with the Revenue. Since the another return of income was filed showing an additional income, details of undisclosed bank account and DEMAT accounts, subsequent to its detection by the Revenue, penalty proceedings were initiated by the AO u/s 271(1)(c) of the Act. Vide letter dated 29th January, 2011, it was stated by the assessee that he had committed certain mistakes in filing of return of income for the year and on realizing that income had escaped taxation for the year he consulted tax consultants and quantified his correct income for the year and paid self assessment tax of ₹ 4,59,660/- on 15th January, 2009. A revised return of income was filed on 15th January, 2009 declaring income of ₹ 11,23,680/ - after paying the self assessment tax and thereafter the revised return of income was regularized by issue of notice u/s. 148 of the Act on 30th July, 2009. It was submitted that the assessee had voluntarily filed her revised return of income before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r paying self assessment tax of ₹ 4,59,660/- on 15-01-2009 , which return of income was subsequently regularized by the Revenue by issue of notice u/s 148 of the Act on 30-07-2009. The assessee submitted that the assessee has voluntarily filed revised return of income before issue of notice u/s. 148 of the Act for re-opening of the assessment. The assessee submitted detailed explanation while contentions of the assessee were not agreed by the AO and penalty of ₹ 3,13,540/- was levied by the AO u/s 271(1)(c) of the Act. In the assessment completed, the returned income of the assessee at ₹ 11,23,860/- has been accepted by the Revenue. The assessee submitted that there is no finding in the assessment completed by the Revenue that there is concealment of income by the assessee. The assessee submitted that it accepted the assessment framed by the Revenue in quantum proceedings and no appeal was filed against the assessment order in quantum. The assessee has relied upon several case laws vide submissions before the learned CIT(A). The ld. CIT(A) observed that assessee had filed the initial return of income dishonestly with a view to conceal the income and the revised re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation obtained in the form of bank statements, etc., are relating to assessment year 2007-08 and 2008-09 and as far as assessment years 2004-05 to 2006-07 are concerned, neither the Department has conducted any investigation nor there is any material before the Department to show undisclosed share transactions of the assessee. When the learned Departmental Representative was called upon to have his say on the aforesaid contention of the learned counsel, he agreed that the information obtained through investigation pertained to assessment year 2007-08 and 2008-09. Thus, this fact proves that as far as assessment year 2004-05 and 2006-07 are concerned, there are no material before the Department to indicate that assessee has not disclosed income from share transactions. Therefore, considered in the aforesaid context the explanation of the assessee that having become aware of the fact that income from share transaction have not been offered in these assessment years she voluntarily came forward to file revised return of income offering additional income appears plausible. It is also a fact on record that revised returns of income filed by the assessee are prior to issuance of any not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of penalty under section 271(1)(c) is not justified and, accordingly, the same is hereby deleted. 8. Facts being identical in the appeals for assessment years 2005- 06 and 2006-07, following our decision herein above, we delete the penalty imposed under section 271(1)(c) in these years also. Thus, ground raised by the assessee in these appeals is allowed. The ld. Counsel submitted that the matter is clearly covered by the above decision of the Tribunal in the case of the assessees sister and the Tribunal has deleted the penalty. 8. The ld. D.R. relied on the orders of authorities below. 9. We have considered the rival contentions and also perused the material available on record including the case laws relied upon. We have observed that as cited by the ld. Counsel for the assessee, on identical facts the Tribunal in the case of sister of the assessee Smt. Sunita K. Vardhan (supra) has deleted the penalty so levied by the A.O. u/s 271(1)(c) of the Act and as confirmed/ sustained by the ld. CIT(A) by holding as under:- We have considered the submissions of the parties and perused the material available on record. Undisputedly, the assessee in the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timately been accepted by the Department in assessment s completed under section 143(3) and assessee s claim that no proceedings for imposition of penalty under section 271(1)(c) have been initiated remains uncontroverted by the Department. In the aforesaid facts and circumstances, in our opinion, it cannot be said that filing of revised return of income by the assessee offering additional income is not voluntary. Therefore, on consideration of overall facts and circumstances, we are of the view that there being no conscious or deliberate act on the part of the assessee to either conceal particulars of income or furnish inaccurate particulars of income imposition of penalty under section 271(1)(c) is uncalled for. The decision relied upon by the learned counsel also supports this view. As far as the decision of the Hon'ble Supreme Court in Mak Data Pvt. Ltd. (supra) is concerned, same is factually distinguishable. In case of Mak Data Pvt. Ltd. (supra), even after non-disclosure of income was detected by the Department, assessee did not voluntarily come forward to file any revised return of income offering additional income. Only in course of assessment proceedings on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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