TMI Blog2018 (3) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty levied under section 271(1)(c) of the Act. - Decided in favour of assessee partly. - ITA Nos.1674 to 1678/PUN/2015 - - - Dated:- 28-2-2018 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For The Assessee : Shri Ketan H. Shah For The Revenue : Shri Ajay Modi, JCIT ORDER PER SUSHMA CHOWLA, JM: This bunch of five appeals filed by the assessee are against consolidated order of CIT(A)-12, Pune, dated 09.10.2015 relating to assessment years 2005-06 to 2008-09 and 2010-11 against levy of penalty under section 271(1)(c) of the Income Tax Act 1961 (in short the Act ). 2. This bunch of appeals relating to the same assessee on similar issues were heard together and are being disposed of by this consolidated order for the sake of convenience. The issue raised in all the appeals is against levy of penalty under section 271(1)(c) of the Act. However, reference is being made to the facts in ITA No.1674/PUN/2015, relating to assessment year 2005-06 to adjudicate the issues. 3. The assessee in ITA No.1674/PUN/2015, relating to assessment year 2005-06 has raised the following grounds of appeal:- 1. On the facts and circumstances of the case an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation 5A. 4. Briefly, in the facts of the case, the assessee had filed return of income declaring total income of ₹ 1,08,900/- on 20.11.2006. Search action under section 132 of the Act was conducted in the case of Dr. Uday Salunke, Director, Prin. L.N. Welingkar Institute of Management Development Research (LNWIM), Matunga, Mumbai and other connected assessee on 20.11.2010. Since the warrant of authorization was also issued in the case of assessee, notice under section 153A of the Act was issued. In response thereto, the assessee filed return of income on 21.09.2012 declaring total income at ₹ 4,65,638/-. Thereafter, case of assessee was picked up for scrutiny and various information and details were called for. The Assessing Officer noted that the assessee had earlier on 30.03.2010 submitted return of income declaring income of ₹ 4,63,707/- which was submitted in response to notice under section 153A of the Act. The said notice was issued consequent to previous search action in the case on 21.07.2008. Further proceedings were initiated in view of subsequent search action on 20.11.2010. The Assessing Officer noted that in the original return of income, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act and has relied on the ratio laid down by the Hon ble High Court of Delhi in Pr.CIT Vs. Neeraj Jindal reported in 393 ITR 1 (Delhi) and also placed reliance on the decisions of Hon'ble Supreme Court in T Ashok Pai Vs. CIT (2007) 292 ITR 11 (SC), CIT Vs. Reliance Petroproducts Pvt. Ltd. (2010) 322 ITR 158 (SC) and Price Waterhouse Coopers Pvt. Ltd. Vs. CIT Anr. (2012) 348 ITR 306 (SC). The written submissions filed by the assessee are placed in Paper Book. 8. The learned Departmental Representative for the Revenue on the other hand, pointed out that the issue raised by assessee in written submissions is covered against the assessee by the judgment of Hon'ble Supreme Court in Prasanna Dugar Vs. CIT (2016) 70 taxmann.com 175 (SC), which has upheld the decision of the Hon ble High Court of Calcutta in CIT Vs. Prasanna Dugar (2015) 371 ITR 19 (Cal.). 9. The second issue which was raised before us was the jurisdictional issue by way of ground of appeal No.1, for which the assessee has not filed any written submissions, is, that the Assessing Officer had failed to record satisfaction on one of the limbs of section 271(1)(c) of the Act while initiating penalty for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied penalty for concealment for the respective years. In this regard, case of assessee is that he was not found to be the owner of any asset, money, bullion, jewellery or other valuable article or thing, or any income based on any entry in any books of account or other documents. Further, there was no seizure, whatsoever in the case of the assessee or any books of account or incriminating documents or any other notings of any documents and additional income was offered on his own motion. Then, in such circumstances, even if the additional income is added in the hands of assessee, the assessee is not liable for penalty under section 271(1)(c) of the Act. In this regard, reliance was placed on various decisions as referred above. However, the issue now stands settled by the Hon'ble Supreme Court in Prasanna Dugar Vs. CIT (supra). The Hon ble High Court of Calcutta while deciding the case of levy of penalty under section 271(1)(c) of the Act on identical situation as before us, has upheld the said levy of penalty. In the facts before the Hon ble High Court of Calcutta, search under section 132 of the Act was conducted at the premises of assessee on 03.02.2009. During the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof, reliance of assessee on the provisions of the Act and its interpretation and the ratio laid down by the Hon ble High Court of Delhi in Pr.CIT Vs. Neeraj Jindal (supra), wherein the revised return of income filed in response to notice under section 153A of the Act was accepted, then the Hon ble High Court held that where for the purpose of levying penalty under section 271(1)(c) of the Act, the return that had to be looked into is the one filed under section 153A of the Act and also where once the Assessing Officer accepts the revised return filed under section 153A of the Act, the original return under section 139 of the Act abates and become non-est. The Hon ble High Court held that it is trite to say that concealment had to be seen with reference to the return that is filed by the assessee i.e. the one under section 153A of the Act and deleted penalty levied under section 271(1)(c) of the Act. However, in view of the ratio laid down by the Hon'ble Supreme Court in Prasanna Dugar Vs. CIT (supra), we hold that the issue stands covered against the assessee on this ground. 13. Now, coming to the jurisdictional issue which is raised by way of ground of appeal No.1. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 271(1)(c) of the Act is leviable where the assessee has concealed its income or furnished inaccurate particulars of income. The two limbs of section 271(1)(c) of the Act are independent and penalty proceedings have to be completed accordingly. 12. The perusal of assessment order and the penalty order reflects that the Assessing Officer has mismatched the figures. The returned income was ₹ 1.24 crores and after making addition on protective basis of about ₹ 32 lakhs, the total income assessed was ₹ 1.56 crores. However, the Assessing Officer adopted the returned income as total income assessed in the hands of assessee and 11. In the facts of the present case, consequent to Survey action conducted on the premises of assessee, the assessee filed return of income declaring total income of ₹ 1,24,20,250/-. The said returned income was accepted as such by the Assessing Officer. However, addition of ₹ 32,09,950/- was made on protective basis in the hands of assessee. The Assessing Officer has dealt with the protective addition in first part of para 4 and no satisfaction has been recorded for initiating penalty proceedings against the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concealing particulars of income and thereafter, penalty was levied on account of non-satisfaction on both the limbs i.e. concealment of income and furnishing of inaccurate particulars of income, the same is against proposition laid down by the Hon ble Bombay High Court in CIT Vs. Shri Samson Perinchery (supra). The learned Departmental Representative for the Revenue here strongly opposed the same and pointed out that penalty under section 271(1)(c) of the Act could be levied on both the limbs of said section. We find no merit in the plea of learned Departmental Representative for the Revenue in this regard, wherein the returned income was finally accepted by the CIT(A) / Tribunal and the protective addition made in the hands of assessee was deleted. Accordingly, we hold that penalty order passed in the case suffers from infirmity and the same is invalid in law. Accordingly, we direct the Assessing Officer to delete said penalty under section 271(1)(c) of the Act at ₹ 11,74,601/-. 16. Applying the parity of above decision to the facts of present case, where penalty proceedings have been initiated on both the limbs of section 271(1)(c) of the Act and the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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