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TMI Blog2018 (5) TMI 1688X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a consolidated order to avoid the conflicting decision. 2. In ITA No. 3222/M/2017, the appeal for Assessment Year 2009-10, the assessee has raised the following grounds of appeal: 1. A. The Ld. Commissioner of Income Tax Appeal has erred in confirming the penalty levied by the Ld. Assessing Officer on account of furnishing inaccurate particulars and concealment of income. The same should be deleted in full. B. The Ld. Commissioner of Income Tax Appeal failed to appreciate the fact that the appellant voluntarily offered to tax, the income received amounting to Rs. 2,00,000/- as commission income in the revised return filed u/s 139 r.w.s. 153A which was erroneously considered as exempt dividend income in the original return. C. The Ld. Commissioner of Income Tax Appeal failed to appreciate the fact that the assessment was completed by the Ld. AO by accepting the revised return filed by the appellant voluntarily. Therefore, the Ld. CIT (Appeal) has erred in stating that there is no provision for revising the return of income filed u/s 153A. 3. Brief facts of the case are that a search and seizure action under section 132 was carried out at the residence and business pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar. Since the assessee has neither concealed nor furnished inaccurate particular of income, therefore, the penalty levied by Assessing Officer is not sustainable. The ld. AR of the assessee submits that the Assessing Officer made the erroneous application of ratio in case of MAK Data (supra) 358 ITR 493(SC). On the other hand, the Ld. DR for the Revenue supported the order of Assessing Officer. The Ld. DR for the Revenue submits that it was a case of search. The return of income in response to the notice under section 153A was filed by assessee. During the assessment proceeding under section 153A when the question was raised by the Assessing Officer the then the assessee filed his revised return of income. The revised return filed by the assessee was not voluntary rather the assessee was cornered by the Assessing Officer. The Ld. DR for the Revenue further submits that the plea of bonafide error is an after though story of the assessee. 5. We have considered the rival submission of the parties and have gone through the orders of authorities below. We have noted that the assessee filed return of income under section 139 on 26.12.2011 declaring total income at Rs. 36,16,250/-. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recall that return were found to be incorrect or erroneous, there would be no question of inviting the penalty under section 271(1)(c). Thus, in our view, there was no particular inaccurate particulars of income was furnished by the assessee while filing revised return of income. Thus, in our view, no penalty was leviable on the fact of the present case. Hence, the grounds of appeal raised by the assessee are allowed. 7. In the result, appeal filed by assessee is allowed. ITA No. 3221/Mum/2017 for A.Y. 2010-11 8. The assessee has raised the following grounds of appeal: 1. A. The Ld. Commissioner of Income Tax Appeal has erred in confirming the penalty levied by the Ld. Assessing Officer amounting to Rs. 90,946/- on account of furnishing inaccurate particulars and concealment of income. The same should be deleted in full. B. The Ld. Commissioner of Income Tax Appeal failed to appreciate the fact there was no addition made in the assessment order passed u/s 143 (3) r.w.s 153A of the Income Tax Act, 1961 and hence there is no question of filing of inaccurate particulars of income. C. The Ld. Commissioner of Income Tax Appeal failed to appreciate the fact that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A), the assessee urged that the Assessing Officer accepted the return of income filed by assessee which proved that no inaccurate particular was furnished by assessee and there is no evasion of tax. The assessee also urged that he has paid the advance tax on his tax liability on his income of Rs. 25,48,400/-. The ld. CIT(A) considering the contention restricted the penalty to the extent of advance tax. As we have noted in the appeal for assessment year 2009-10 that the assessing officer has not recorded that his satisfaction that any particulars of income furnished by assessee were found to be inaccurate. The Hon'ble Court in Reliance Petroproducts (P.) Ltd. (supra) further held that if there is no finding of the Assessing Officer to recall that return were found to be incorrect or erroneous, there would be no question of inviting the penalty under section 271(1)(c). Thus, in our view, there was no incorrect particular furnished by the assessee while filing revised return of income. Moreover, for failure to furnish return of income the assessing officer has levied penalty separately under section 271F. Thus, in our view, no penalty was leviable under section 271(1)(c), on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal. 14. We have heard the ld. AR of the assessee and ld. DR for the Revenue and perused the material available on record. The ld. AR of the assessee submits that the Assessing Officer made the erroneous application of ratio in case of MAK Data (supra). The assessee has neither concealed any income nor furnished any inaccurate particular thereof. The ld. AR for the assessee further submits that the assessee due to over sight omitted to include the tax deducted at source in his total return of income being net TDS of Rs. 82,000/-. The omission for not offering Rs. 82,000/- as the income from Meeting Fee of Rs. 8,20,000/- was taken as Rs. 7,38,000/-. On the other hand, the ld. DR for the Revenue supported the order of authorities below. The ld. DR further submits that had the search not took place at the premises of the assessee, the assessee would have successfully evaded the tax liability. The ld. DR adopted the same submissions are made in appeal for AY 2009-10 and in 2010-11. 15. We have considered the rival submission of the parties and have gone through the orders of authorities below. The Assessing Officer levied the penalty under section 271(1)(c) holding that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. CIT Appeal has failed to appreciate the fact that the appellant admitted that there was undisclosed income amounting to Rs. 15,62,870/- and has specified and substantiated the manner in which the same has been derived. Further, the appellant has sufficient tax credit and is not liable to pay any further tax in respect of the undisclosed income. 19. Brief facts related to the ground of appeal are that during the search under section 132 on 26.05.2011, the assessee declare undisclosed jewellery of Rs. 15,62,870/- as his undisclosed income. However, while filing return of income under section 139(4) on 30.03.2013, the assessee not offered the said undisclosed income. In response to the notice under section 153A, the assessee included the said undisclosed income. The assessing officer initiated penalty under section 271AAA, while passing assessment order on 18.03.2014. No reply was furnished by assessee; the assessing officer levied the penalty @10% of the undisclosed income. The assessing officer levied the penalty of Rs. 15,62,70/- under section 271AAA. On appeal before ld CIT(A) the action of the assessing officer was confirmed. Therefore, further aggrieved by the order of ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32(4), while levying the penalty. No reference of the question during the recording the statement, put to the assessee or the answer of assessee is referred by assessing officer in his order under section 271AAA. The assessee during the first appellate stage specifically relied on his reply/letter dated 17.02.2014 that he has substantiated the manner in which the undisclosed income was derived and contended that income was derived from the brokerage and advisory business. The ld CIT(A) not disputed the contents of the reply of assessee dated 17.02.2014 or the statement of assessee under section 132(4) in substantiating the manner of deriving the undisclosed income. The ld CIT(A) discarded the contention of the assessee holding that no documentary evidence was produce of such income. In our view it was escaped from attention of ld CIT(A) that the assessee has shown the TDS of Rs. 82,000/-, which was initially omitted to include in his return of income. Moreover, the ld CIT(A) having co-terminus power and was fully competent to inquire about the non- genuinity of such TDS. The assessee has discharged his onus in substantiating the manner of deriving the undisclosed income. In our vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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