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Dr. Sanjay Chugh Versus ACIT, Circle-37 (1) , New Delhi

2017 (9) TMI 1226 - ITAT DELHI

Penalty u/s 271(1)(c) - additional income disclosure - surrender of income post survey u/s 133A - professional receipts disclosure - Held that:- Admittedly, the assessee has disclosed the additional income in its return of income only after the survey was carried out by the revenue authorities - 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. Th .....

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extrapolation of the records pertaining to earlier year found during the course of survey. The revenue is also 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 documen .....

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enalty 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 Anshu Prakash, Sr. DR ORDER PER PRASHANT MAHARISHI, A. M. 1. This is an appeal filed by the assessee against the order of the ld CIT(A)-XXVIII, New Delhi dated 23.11.2007 for the Assessment Year 2004-05. 2. The .....

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wide para No. 17 of the order has held that that the tribunal, while examining the issue on remand will take into consideration the evidences placed by the revenue as well as the contention of the respondent assessee that the evidence found during the survey or the evidences placed on record do not justify any enhancement calculation and that income of ₹ 12,000 per day is just an estimate without basis of foundation and is not supported by any material. The Hon ble high court clarified th .....

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that profit of ₹ 2344629, as per profit and loss account filed with the return of income of the assessee. The assessee filed its return of income declaring total income of ₹ 303750/- on 01/11/2004. Subsequently the survey under section 133A of the income tax act, 1951 of conducted on the business premises of the assessee on 16/12/2004. Subsequent to the survey. The original return of income filed by the assessee on 01/11/2004 at ₹ 3 03750 was revised on 14/01/2005 where the to .....

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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 .....

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ny increase in the income of the assessee. Pursuant to the revised return filed further after the date of survey operation. Consequent to that the notice under section 271 (1) © of the act was issued on 18/12/2006, where the assessee submitted that assessee has disclosed the above sum to buy the peace and with a precondition that no penalty interest would be levied upon the assessee upon such surrender. However, the Ld. assessing officer rejected the contention of the assessee and levied a .....

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ipt for to written 61 days, that is only an estimate which does not match with the income declared by the assessee. On the facts and circumstances of the case in the opinion of the coordinate bench the surrender by the assessee was before any detection or investigation done by either the survey Timor the assessing officer. It was further held by the coordinate bench that it was also not based on any record found during the search. Therefore, we fact that there is been a survey under section 133A .....

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o the file of the tribunal. 8. Ld. authorized representative before us submitted the same arguments, which were earlier placed before the coordinate bench as well as before the lower authorities. It was the claim of the Ld. authorized representative 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 fu .....

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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 were disclosed in the assessment order because of .....

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le of estoppel when the disclosure has been made by the assessee under the pretext and assurance that no penalty would be levied. 9. Ld. departmental representative vehemently submitted that when the assessee has disclosed the income in the revised return, but not in the original return and that too after the detection therefore the assessee is liable for the penalty. He further submitted that the authorities of the Ld. CIT appeal as well as the Hon ble high court have held that the assessee is .....

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ax Appellate Tribunal (hereinafter referred to as 'the Tribunal') dated August 03, 2012. The following questions have been presented for our consideration : (a) Whether in the circumstances and the facts of the case and in law, the Appellate Tribunal is right in deleting the penalty levied by the Assessing officer levied by the u/s.271(1)(c) of the Act amounting to ₹ 1261050/- ? (b) Whether in the circumstances and the facts of the case and in law, the Appellate Tribunal has failed .....

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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 assesse .....

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original return of income on 31.10.2005 declaring total taxable income of ₹ 5,96,580 and also filed revised return of income on 01.02.2007 declaring total taxable income of ₹ 42,96,580/-. The revised return filed by the appellant was within the time limit prescribed u/s.139(5) of the Act. I am of the view that liability to penalty u/s.271(1)(c) and filing of revised return u/s.139(5) are mutually exclusive. If a case falls within the scope of section 139(5), there would be no chance .....

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e. The jurisdictional high court in case of CIT Vs. Shankerlal Nebhmal Uttamchandani 311 ITR 327 (Guj.) has held that revised return filed before the detection of concealment, in such case no penalty is leviable. Respectfully following above decision & in view of the above discussion, the penalty levied by the AO of ₹ 12,61,050/- is hereby ordered to be cancelled. The Revenue carried such order of CIT (Appeals) before the Tribunal. The Tribunal by the impugned judgment rejected Revenue .....

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e. This covers loan taken by him from various persons of ₹ 19,00,000/- as well as further amount to cover error of omission and commission and other discrepancy if any. The reason given for filing revised return was that most of the business was looked after by his brother who was in a position to comply with the details and since he was no more in this world, he opted to file revised return. Looking to these facts, we convinced that ld.CIT(A) is legally and factually correct in canceling .....

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uded 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 it .....

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11. As noted hereinbefore, the Tribunal has in terms found that though certain queries were raised and put to the assessee there was no specific pin pointing of particular items of income which have been concealed by the assessee. The Tribunal has found, as a matter of fact, that till 31.3.1989 the process of detection was not complete, the date 31.3.1989 being the date of filing of revised returns. In face of these findings recorded on the basis of evidence appreciated by the Tribunal, the Cou .....

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e hands of the family members and it was also an admitted position that those family members have nowhere admitted that the family members were benamidars of the assessee. In the present case also, it is not the case of the Revenue that the assessee filed revised return since some of the details of inaccurate particulars of the income were detected by the Assessing Officer during the course of assessment. In our opinion, the Tribunal therefore committed no error. We may, however, clarify that we .....

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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 Hig .....

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