TMI Blog2017 (9) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... lso not brought on any material on record for the purpose of levy of the penalty that similar situation prevailed the impugned assessment year also which was prevailing in the year 2002. Before us neither the revenue nor the assessee could show us that how the amount of rupees ₹ 12,000 per day regarding the professional fees has been estimated by the assessee and the relevant documents pertaining thereto. In view of this we are of the opinion that amount of disclosure made by the assessee was only on estimate basis based on the documents pertaining to earlier years. Addition has been made on estimated basis and that too without any material pertaining to that year, therefore, the disclosure made by the assessee is voluntary in nature, in the revised return, which is within time and cognizance of which has been taken by AO while framing the assessment order, therefore, the penalty under section 271 (1)(C) cannot be levied on such addition - Decided in favour of assessee. - ITA No. 330/Del/2008 - - - Dated:- 18-9-2017 - SHRI I.C.SUDHIR, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Revenue : Shri Amitosh Moitra, CA For The Assessee : Shri A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, the penalty proceedings under section 271 (1) of the income tax act was initiated. 5. During the course of survey various papers were impounded and during the course of survey. It was revealed that the average professional receipts of the assessee are approximately ₹ 12,000 per day, which is not reflected in the profit and loss account filed by the assessee along with the original return of income. Therefore, during the course of survey White statement regarding surrender of income on 18/12/2004 the assessee surrendered ₹ 60 lakhs for to assessment year 2004 05 and 2005 06. In the original return of income. The assessee is shown the professional receipt of ₹ 8 91287/ and syndication receipt of ₹ 5 9158/ and claim total expenditure of ₹ 5 28809/ resulting into the excess of income or expenditure of ₹ 4 21653/ . However, pursuant to the survey the professional receipts of the assessee was disclosed at ₹ 2 903976/ , syndication receipt of ₹ 5 9158/ and professional receipt of ₹ 2 Lacs 40,000/ . Further, the total expenditure of the assessee was also reminded ₹ 8 58505/ resulting into the excess of inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee has offered the income on the basis of the estimate and there were no records available with the revenue. He further submitted that before the detection the assessee has filed a revised return, which was voluntarily in nature. He further submitted that the papacy bounded were pertaining to the assessment year 2002 and not to assessment year 2004 2005 for which the impugned penalty has been levied and therefore from the earlier years paper, the penalty cannot be levied on the assessee were this year. He further referred to the copy of the statement given by the assessee at the time of survey. He further referred to the impounded pages of the diaries which were pertaining to 2002. He further referred to the issue that there was no detection by the revenue officers because the 1st notice was issued on 05/01/2005 and immediately on receipt of the notice without asking any question the assessee has filed return of income on 14/01/2005 revising its earlier income. He therefore submitted that the disclosure s voluntary nature. He further referred to the assessment order of the assessee for that year wherein there was no incriminating metal found during the course, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer, which came to be deleted by the Commissioner of Appeals and which order came to be upheld by the Tribunal. Briefly stated the facts are that the assessee for the assessment year 2005-06 had filed his original return of income declaring total income of ₹ 5.96 lac (rounded off). During the course of assessment under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'), the assessee filed revised return and declared further income of ₹ 37 lac. Upon completion of the assessment proceedings, the Assessing Officer initiated penalty proceedings for such additional income of ₹ 37 lac disclosed by the assessee in the revised return. The Assessing Officer holding that the assessee had furnished inaccurate particulars of his income to the tune of ₹ 37 lac imposed penalty at the rate of 100% of the tax sought to be avoided under Section 271(1)(c) of the Act and quantified the same at ₹ 12.61 lac. Assessee carried the penalty order in appeal. CIT (Appeals) deleted the penalty making following observations : 7. In the instant case, on perusal of facts, I find that the appellant had filed h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return. Looking to these facts, we convinced that ld.CIT(A) is legally and factually correct in canceling the penalty of ₹ 12,61,050/- levied by AO u/s.271(1)(c) of the I.T. Act, 1961. Consequently, we decline to interfere. Having heard the learned counsel for the Revenue, having perused the orders on record, we see no reason to interfere. The Tribunal had come to the conclusion that the assessee to buy peace and being disturbed by the death of his brother, to avoid protracted litigation filed the revised return and disclosed additional income. Such additional disclosure of ₹ 37 lac included loans taken from various persons totalling to ₹ 19 lac and to cover error of omission and commission, if any. Reason for filing revised return was shown to be that the business was substantially looked after by the brother, who would have been in a position to comply with the details. In his absence, such details would not be easily available and it was, therefore, that the assessee opted to file the revised return. In our view, the Tribunal having appreciated the relevant facts in its proper perspective and having considered the various decisions, committed no error in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the original return. We may examine such a question in future when such a situation presents before us. 11. In the present case also, the assessee has furnished original return of income on 01/11/2004 and revised return was also filed on 14/01/2005 on which the Ld. assessing officer has accepted the same and acted upon the same. Therefore, facts of the present case also fall on the similar lines on the issue decided by Hon ble Gujarat High Court. Therefore, respectfully following the decision of the Hon ble Gujarat High Court on the above issue we direct the Ld. assessing officer to delete the penalty of ₹ 7 23673/ on this count too. 12. Even on the other aspect of the penalty. It is apparent that the disclosure was made by the assessee based on the diary of year 2002. There were no incriminating material is found during the course of survey in that particular diary about the name of the patient or the fees charged from them. Further, the list of precedents for the year. Posted related and the assessee has given answer with respect to each of one stating that most of the details of the visits of those passions are pertaining to earlier years and not to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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