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2017 (2) TMI 580 - ITAT HYDERABAD

2017 (2) TMI 580 - ITAT HYDERABAD - TMI - Penalty u/s 271(1)(c) - Held that:- As per provisions of Section 271(l)(c) of the Income-tax Act, penalty can be imposed if the assessee has concealed the particulars of income or furnishing the inaccurate particulars of such income. In the case under consideration, there is no dispute with regard to the fact that the particulars of income are reflected in the Return of Income and it is not the case of the Revenue that the return of income filed was inva .....

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RIFAUR RAHMAN, A.M.: This appeal filed by the assessee is directed against the order of CIT(A) - 3, Hyderabad, dated 06/05/2016 for AY 2009-10. 2. Briefly the facts of the case are that the assessee is a doctor running nursing home under the name and style, M/s Laxmi Nursing Home at Mahabubabad, Warangal. There was a survey u/s 133A on 17/11/2009. In-patient, Out-patient, Ultrasound registers and OP slips, books were found in M/s Laxmi Nursing Home. On verification, it was found that books were .....

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9-10 and ₹ 2,00,000/- in the name of his wife Smt. Anila, who was proprietrix of medical shop and pathology unit. 2.1 Subsequently on 26/03/2010, the assessee filed return of income of ₹ 15,95,462/- which was accepted by the AO in his scrutiny assessment u/s 143(3) dated 30/12/2011. 3. Thereafter, penalty proceedings were initiated by the AO u/s 271(1)(c) of the Act on the ground of concealing of income and furnishing of inaccurate particulars of income and accordingly notice u/s 271 .....

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he premises of assessee on 17/11/2009. The assessee has filed the return of income on 26/03/2010 within a period of limitation u/s 139(4). The same was accepted and assessment u/s 143(3) of the Act was completed on the income declared by the assessee during the survey proceedings. 5. After rejecting the assessee s explanation, the AO observed that during the course of survey proceedings, OP, IP & Ultra sound registers and OP slips, books were found in the business premises of M/s Laxmi Nursi .....

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e information and it is clear that the assessee had concealed the income and furnished inaccurate particulars of income. Accordingly, he levied minimum penalty of ₹ 4,01,150/- u/s 271(1)(c) on the income of ₹ 15,00,000/-, on which tax sought to be evaded. 6. Aggrieved by the order of the AO, the assessee carried the matter in appeal before the CIT(A) and submitted that the assessee admitted income voluntarily and paid taxes, therefore, no penalty u/s 271(1)(c) can be levied. He submi .....

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assessee is in appeal before us raising the following grounds of appeal: 1. On the facts and in the circumstances of the case, the order of the learned Commissioner of income Tax (Appeals) erroneous in law and facts of the case. 2. On the facts and in the circumstances of the case the learned Commissioner (Appeals) is erred in law and facts of the case in upholding the order of the Assessing Officer levying penalty under Section 271(1)(c) of the Income-tax Act, 1961. 3. On the facts and in the c .....

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that the assessee has filed return of income on 26/03/2010 as per the provisions of section 139(4) i.e. return filed voluntarily, but, within one year from the date of the end of AY. Further, he submitted that there was a survey conducted on 17/11/2009 in the premises of the Nursing Home M/s Laxmi Nursing Home at Mahabubabad, Warangal, which is run by the assessee. It is submitted that during the survey a statement was recorded from assessee, which is placed on record in the form of paper book .....

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ngly and paid the relevant taxes. He vehemently argued that assessee has voluntarily submitted the return of income and complied with the rules and, therefore, penalty cannot be levied. Alternatively, he submitted that a statement was recorded u/s 133A cannot be used against the assessee, for which he relied on the following case laws: 1. CIT Vs. Khader Khan Son, 300 ITR 157 (Mad.) 2. CIT Vs. Khader Khan Son,352 ITR 480 (SC) 3. Godavari Township Pvt. Ltd. Vs. CIT, 148 ITD 463 (Viz.) 4. CIT Vs. S .....

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acts of the case of the assessee as they are distinguishable on facts. He, however, relied on the decision of the Hon ble Supreme Court in the case of Mac Data (P) Ltd. Vs. CIT (supra). 11. Considered the rival submissions and perused the material facts on record as well as the decisions cited. It is an admitted fact that the income declared by the assessee only after survey, therefore, it cannot be considered as voluntary disclosure by the assessee. The Revenue s contention is that, in case, th .....

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under: 16.4. There is one more aspect to the issue. Unlike in a search case there is no presumption that the amount unearthed during the course of survey will automatically be considered as concealed income . No provision/explanation similar to Explanation-5 was provided in the section to cover survey cases. Since, the income detected/offered in survey cannot be deemed to be concealed income , treating the same as concealed income as was done by A.O. does not arise. A.O. has to establish the nat .....

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