TMI Blog2018 (2) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... planation 5A are fulfilled in the case of the assessee then the penalty levied u/s 271(1)(c) was proper and sustainable. - Decided against assessee. - ITA No. 823/JP/2016 - - - Dated:- 2-1-2018 - SHRI VIJAY PAL RAO, JM AND SHRI BHAGCHAND, AM For The Assessee : Shri S. L. Poddar (Advocate) For The Revenue : Shri P. R. Meena (Addl.CIT) ORDER PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 29.08.2016 of CIT (A), Jaipur for the Assessment Year 2009-10. The assessee has raised the following grounds:- 1. Under the facts and circumstances of the case the Learned CIT(A) has erred in passing the order u/s 271(1)(c) of the Income Tax Act, 1961 which void ab-initio deserves to be quashed. 2. Under the facts and circumstances of the case the Learned CIT(A) has erred in confirmed the penalty of ₹ 3,25,595/- u/s 271(1)(c) of the Income Tax Act, 1961. 3. The assessee craves your indulgence to add amend or alter all or any grounds of appeal before or at the time of hearing. The assessee has also raised additional grounds which read as under:- Additional Grounds:- 1. Under the facts and ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no dispute that the additional ground raised by the assessee involves pure question of law and the adjudication of which does not require any investigation or examination of fresh facts or evidence but the same can be decided on the basis of the facts and material already on record. Therefore, in view of the decision of Hon ble Supreme Court in case of NTPC vs.CIT (1998) 229 ITR 383 (SC)(supra) as well as the decision of the Mumbai Special Bench in case of Mahindra Mahindra Ltd. vs. DCIT (2009) 122 TTJ 577 (Mub) (SB) we admit the additional ground raised by the assessee for adjudication. On merit of additional ground. 5. The ld. AR has submitted that the Assessing Officer has issued notice u/s 274 read with section 271(1)(c) on 29.12.2011 which is placed at page 4 of paper books and the relevant part of the notice reads as under:- have concealed the particulars of your income or furnished inaccurate particulars of such income. 5.1. He has pointed out that Assessing Officer has not specified the default of the assessee whether concealment of particulars of income or furnishing of inaccurate particulars of income. 5.2. The Assessing Officer can in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions in the property. In response to notice u/s 153(A) the assessee filed his return of income and offered an amount of ₹ 10,000,00/- to tax under the head income from the other sources. As assessee surrendered by him from the course of search. The Assessing Officer framed AY u/s 143(3) read with section 153(A) on the return income on 29.12.2011. Thus, the Assessing Officer while completing the Assessment has made no addition to the return income but recorded its satisfaction for initiating the penalty proceedings u/s 271(1)(c) in respect of surrendered amount of ₹ 10,000,00/-. Accordingly, AO issued the notice dated 29.12.2011 u/s 274 read with section 271 of Income Tax Act. 7.1. The ld. AR of the assessee has challenged the validity of show cause notice u/s 274 on the ground that the AO has not specified the grounds on which the penalty proceedings were initiated and the penalty was proposed to be levied. As it is clear from the facts as narrated above that it is a case of surrender of undisclosed income dedected. During the course of search. Since assessee offered the said surrender income of ₹ 10,000,00/- to tax in the return of income filed in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the decisions relied upon by the ld. AR of the assessee. The very object and purpose for specifying the default is to make the assessee known about the ground on which the penalty is intended to be imposed and to meet the case of the department that the conditions stipulated u/s 271(1)(c) do not exist. 7.3. Therefore, specifying the default in the show cause notice is mandatory in the sense that the assessee must know which default he has committed and should have fully opportunity to meet the case of the department. Thus there is no quarrel on the procedence as cited and relied upon by the ld. AR however in the case of the assessee it is not an addition made by the AO but the assessee surrendered the income to tax and therefore the said surrender of income would not fall in the category of furnishing inaccurate particulars of income more so when the assessee did not file any return of income prior to the date of search. The assessee offered this amount to tax in the return of income and no further addition was made by the AO. Therefore the default in the nature of furnishing inaccurate particulars of income is ruled out. Hence it can only be in the category of concealment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequences up to 31st March, 2010. Whereas the return of income in the case of the assessee was filed on 22nd March, 2010. Therefore, the provisions of section 271(1)(c) read with explanation 5A are not applicable in the case of the assessee. He has relied upon the decision of the Mumbai Bench Tribunal dated 28.08.2013 in case of Kshiti R. Maniar, Mumbai vs. ACIT in ITA No. 1020/Mum/2011. 10. The ld. AR has submitted that the time for filing the return of income was available with the assessee as per section 139(4) then the provisions of section 271(1)(c) read with explanation 5A are not attracted. The Assessing Officer has not made any addition to the return income filed in response to notice u/s 153(A) then the provisions of section 271(1)(c) are not attracted. He has relied upon the decision in case of Smt. Pramila D. Ashtekar Ors. Vs. ITO (2013) 154 TTJ (Pune) (UO) 46. The assessee has included the income of ₹ 10,000,00/- only to honour the commitment made during the course of search, otherwise there is nothing to show that the assessee has concealed any income. The income offered to tax was to by peace of mind and to come out of waxed litigation could be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007, the assessee is found to be the owner of- ( i) any money, bullion, jewellery or other valuable article or thing (hereafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilising (wholly or in part) his income for any previous year; or ( ii) any income based on any entry in any books of account or other documents or transactions and he claims that such entry in the books of account or other documents or transactions represents his income (wholly or in part) for any previous year, which has ended before the date of search and,- ( a) where the return of income for such previous year has been furnished before the said date but such income has not been declared therein; or ( b) the due date for filing the return of income for such previous year has expired but the assessee has not filed the return, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of his inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d correct particulars of income at the time of filing original return. 31. The second aspect for consideration is whether the revised return filed by the assessee is voluntary or not. When survey under section 133A of the Act was taken place at the premises of the assessee, the Department detected some incriminating documents relating to purchase of the property. Wherein, the Department found that the assessee has paid excess payment, but in the books, it has shown lower value. After enquiry with the employees of the assessee and thereafter recording their statement, which were confronted with the Director of the assessee company Shri Sunil Bansal admitted the same that they have recorded lesser value in the books. Thereafter, the Directors of the assessee company calculated the concealed income and filed revised return on 28.03.2008. Therefore, the revised return filed by the assessee cannot be considered as voluntary return and the Assessing Officer has rightly rejected the same. Even, in fact, before the Assessing Officer, the assessee has not given any reason for filing the revised return. Insofar as the argument of the counsel for the assessee is concerned, the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no necessity the Assessing Officer to further conduct enquiry about the undisclosed income. Accordingly, the argument of the Id. Counsel for the assessee is rejected. 35. Further, the case law cited by the Id. Counsel for the assessee have been carefully considered and find that they have no application to the facts of the case in hand. 36. In this case, the assessee failed to explain before the lower authorities and even before us as to why the assessee was not able to file correct particulars of income in the original return filed on 29.11.2006, which has been filed subsequent to the survey, the assessee filed revised return on 28.03.2008. It is found from the record that the assessee has not furnished true and complete particulars of income at the time of filing original return of income on 29.11.2006 and the revised return filed by the assessee on 28.03.2008 is not voluntary. The assessee by filing inaccurate particulars concealed the income. Thus, it is a fit case to impose penalty under section 271 (1)(c) of the Act. 37. The first appellate authority, after careful consideration of the issue and distinguishing various case law cited by the ld. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
