TMI Blog2018 (5) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... 274 r.w.s. 271 was not sure as to whether the assessee concealed the particulars of income or furnished inaccurate particulars of such income which is evident from the said notice wherein neither of the two was struck off. Penalty u/s 271(1)(c) of the Act was not leviable - Decided in favour of assessee. - ITA No. 4950/Del/2017 - - - Dated:- 7-5-2018 - Sh. N. K. Saini, Accountant Member For The Assessee :Sh. Ved Jain, Adv., Sh. Ashish Goel, CA Ms. Devina, Adv. For The Revenue : Sh. B. R. Mishra, Sr. DR ORDER This is an appeal by the assessee against the order dated 01.06.2017 of ld. CIT(A)-16, New Delhi. 2. The only grievance of the assessee in this appeal relates to the confirmation of penalty of ₹ 3,00,000/- levied by the AO u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act). 3. Facts of the case in brief are that the assessee filed the return of income on 30.09.2009 declaring an income of ₹ 17,74,378/-. During the year under consideration, a survey was conducted u/s 133A of the Act at the premises of the assessee on 03.02.2009 and unexplained stock of ₹ 10,00,000/- was found. The assessee surrendered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following case laws: Price Waterhouse Coopers Pvt. Ltd. Vs CIT 348 ITR 306 (SC) CIT Vs M/s Bennett Coleman and Co. Ltd. 2013(3) TMI 373 CIT Vs Escorts Finance Ltd. (2009) 28 DTR 293 (Del.) CIT Vs Mahanagar Telephone Nigam Ltd. (2011) 63 DTR 87 7. It was further submitted that the AO in the penalty notice had not specified the charge on which the penalty was levied i.e. either the concealment of income or furnishing of inaccurate particulars of income. A reference was made to page no. 28 of the assessee s paper book which is the copy of notice issued u/s 274 r.w.s. 271 of the Act dated 27.12.2011. The reliance was placed on the following case laws: CIT Anr. Vs M/s SSA s Emerald Meadows 2016(8) TMI 1145 (SC) CIT, Bangalore and ITO, Ward-6(3), Bangalore Vs M/s SSA s Emerald Meadows 2015(11) TMI 1620 (Kar) CIT Vs Manjunatha Cotton and Ginning Factory (2013) 359 ITR 565 (Kar) 8. In his rival submissions, the ld. Sr. DR strongly supported the orders of the authorities below and reiterated the observations made by the ld. CIT(A) in the impugned order. 9. I have considered the submissions of both the parties and careful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f penalty is return of income. If any amount has been shown in the return of income then it cannot be said that assessee has concealed any particulars of that income or furnished inaccurate particulars thereof. There cannot be any concealment prior to filing of return and certainly not during the survey proceedings as held in S.A.S. Pharmaceuticals (supra). Hon'ble Rajasthan High Court in the case of CIT vs. Unique Precured Retraders [2008] 13 DTR (Raj) 215 concluded that no penalty is leviable in respect of disclosure of additional income after the survey. 7.1 Now adverting to decisions relied upon by the Id. DR. In K. P. Sampath Reddy (supra) the assessee had filed a return of his income at ₹ 11,310/- for the assessment year 1976-77 from his business in kirana. The ITO suspected the correctness of this return. Thereafter, the assessee filed a revised return showing an income of ₹ 69,800. During the survey of his business, books of accounts were impounded, which recorded several erroneous entries. While the investigation was in progress as to the stocks, sales and various cash credit entries, the assessee filed his revised returns for the years 1972-73, 1973- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance by the Id. DR on the aforesaid decision is totally misplaced. 7.2 Facts, in the other decision relied on by the Id. DR in C Ananthan Chettiar(supra) are that consequent to a search in the assessee's shop and residence on November 22, 1985, when cash, jewellery and certain documents were seized, a revised return for the AY 1986- 87was filed by the assessee for this assessment year, which return was accepted and assessment made on the basis of that return. In response to a notice seeking to impose penalty, the assessee took the stand that there was no concealment and it was only for the purpose of buying peace with the Department that the additional income was disclosed and the return filed. The Tribunal, relying on the decision of the Supreme Court in the case of Sir Shadilal Sugar and General Mills Ltd. v. CIT [1987] 168 ITR 705, held that no penalty was in the circumstances leviable. Hon'ble High Court while relying upon Explanation to section 271(1)(c) of the Act and the decision in the case of K.P. Madhusudhanan v. CIT [2001] 251 ITR 99 (SC), upheld the levy of penalty, the reason for not having disclosed the income earlier having not been stated. As is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und for levying penalty, especially when there is nothing on record to show that any material particulars were concealed or furnished inaccurate. In these circumstances, we are of the opinion that levy of penalty is not justified. Consequently, we have no hesitation, in vacating the findings of the lower authorities. Therefore, ground no.1 in the appeal is allowed. 10. In the present case also, the assessee not only surrendered the income during the course of survey but also paid the tax thereon before filing the return of income. However, the assessee did not reflect the surrendered amount and tax paid thereon in the said return but when the mistake was pointed out, the assessee surrendered that income. It is well settled that the assessment proceedings and the penalty proceedings are two different and separate proceedings. Therefore, even when some addition is to be made to the income of the assessee, it is not always necessary that the penalty u/s 271(1)(c) of the Act is to be levied. In the present case, it cannot be said that the surrendered income was not voluntarily and the assessee wanted to conceal the income since the tax had already been paid on the amount which w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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