TMI Blog2018 (5) TMI 1688X X X X Extracts X X X X X X X X Extracts X X X X ..... Decided in favor of assessee. - ITA No.3222/Mum/2017, ITA No.3221/Mum/2017, TA No.3223/Mum/2017 And ITA No.3224/Mum/2017 - - - Dated:- 23-5-2018 - SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER For The Assessee : S hri Prakash K. Jotwani (AR) For The Revenue : Shri Virender Singh (DR) Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This group of four appeals by assessee under section 253 of Income Tax Act are directed against the separate orders of Ld. Commissioner of Income-Tax (Appeals)-50, Mumbai, [for short the ld. CIT(A)] for Assessment Years 2009-2010 to 2011-12. In appeal for Assessment Year 2009-10, 2010-11 2011-12, the Ld. CIT(A) confirmed the penalty levied under section 271(1)(c) of the Act. For Assessment Year 2011-12, the Assessing Officer also levied the penalty under section 271AAA, which was also confirmed by Ld. CIT(A). In all appeal arising out of penalty levied under section 271(1)(c) the assessee has raised common grounds of appeal. Therefore, all appeals were taken together and are decided by a consolidated order to avoid the conflicting decision. 2. In IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 15,000/- claimed under section 80D, which was not offered/ claimed in earlier income. The assessing officer levied a minimum penalty @ 100% of the tax sought to be evaded. The Assessing Officer worked out the penalty of ₹ 73,078/- in its order dated 19.09.2014. On appeal before the Ld. CIT(A), the penalty order on additional income of ₹ 200,000/- was confirmed, however on deduction under section 80D of ₹ 15,000/- the penalty was deleted. Therefore, further aggrieved by the order of Ld. CIT(A), the assessee has filed the present appeal before us. 4. We have heard the Ld. Authorized Representative (AR) of the assessee and Ld. Departmental Representative (DR) for the Revenue and perused the material available on record. The Ld. AR of the assessee submits that assessee has neither concealed the income nor furnished inaccurate particular thereof. During the assessment proceeding, the assessee filed revised return of income declaring/offering the tax on commission income, which was not offered in the earlier return. The assessee offered suo-moto. The Assessing Officer has not detected any concealed income or fact of inaccurate particular. Since the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision in MAK Data (supra) is not applicable on the fact of present case. In case of MAK Data, the transaction were not recorded in the books of account and that the Assessing Officer has categorically recorded the finding that he is not satisfied and that the assessee concealed the true particular of income. However, in the present case, the assessee himself offered the additional income in revised return of income. The Hon'ble Supreme Court in case of CIT Vs Reliance Petroproducts (P.) Ltd. held that the conditions under section 271(1)(c) must exist before the penalty is imposed. Everything depends upon the return of income filed, because return of income is the only document, where the assessee can furnish the particular of income. When such particulars found to be inaccurate, the liability would arise. In the present case, the assessee offered additional income of ₹ 2,00,000/-, which was accepted by Assessing Officer. We have noted that the Assessing Officer has not recorded his satisfaction that return of income was found to be incorrect or erroneous or false. The Hon'ble Court in Reliance Petroproducts (P.) Ltd. (supra) further held that if there is no finding o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 400/-. The Assessing Officer levied the penalty of ₹ 6,88,575/- under section 271(1)(c) being @ 100% of the tax allegedly to be evaded. On appeal before the Ld. CIT(A), the penalty was restricted to ₹ 90,946/-. Therefore, further aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us. 10. 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. 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. 11. 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 no r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant had voluntarily filed the return of income and has not furnished any inaccurate particulars of income. The appellant had submitted all the required details and offered a bonafide explanation for the stand taken. 13. Brief facts related to the grounds of appeal are that assessee filed his return of income under section 139 on 30.03.2013 for AY 2011-12 declaring total income of ₹ 32,59,062/-. Consequent upon the search and seizure under section 132 on 26.05.2011 as referred above, the assessee was served with notice under section 153A dated 21.01.2014. In response to the notice under section 153A, the assessee filed his return of income 28.01.2014 declaring total income of ₹ 48,21,930/-. Subsequently, the assessee filed revised return of income on 14.02.2014/- revising the total income at ₹ 49,02,700/-. The assessing officer passed assessment order on 18.03.2014 accepting the return of income declared in the revising return dated 14.02.2014. The assessing officer levied penalty under section 271(1)(c) on the additional income offered in the revised return. The assessing officer levied penalty @100% of tax sought to be evaded. On appeal before ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no tax evasion in offering the income of ₹ 82,000/-. The said amount in the form of advance tax (TDS) by payer of Meeting Fee, has already been deposited. The assessee has not claimed setoff of the said TDS, rather it was included in the total income offered by the assessee. In our view the assessee has not furnished inaccurate particulars of income. Moreover, the contention of the assessee that the income of ₹ 82,000/- was left to be declare while filing return of income seems to be bonafide and genuine. We have also noted that the Assessing Officer has accepted the return of income filed by assessee which proved that no inaccurate particular was furnished by assessee. There was no revenue loss to the in offering the said income of ₹ 82,000/-. evasion of tax. Thus, in our considered view, no penalty was leviable under section 271(1)(c), on the fact of the present case. Hence, the grounds of appeal raised by the assessee are allowed. 17. In the result the appeal of the assessee is allowed. ITA No. 3224/Mum/2017 for A.Y. 2011-12 [under section 271AAA] 18. The assessee has raised the following grounds of appeal: 1. A. The Ld. Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income filed under section 139(4) on 30.03.2013. Had the search not took place at the premises of the assessee, the assessee would have successfully evaded the tax liability. The assessee has not substantiated the manner in which the said undisclosed income was derived. 21. We have considered the rival submission of the parties and have gone through the orders of authorities below. The Assessing Officer while passing assessment order recorded that in response to the notice under section 153A the assessee furnished return of income, including the said undisclosed income. A penalty proceeding under section 271AAA is initiated . The assessing officer levied the penalty under section 271AAA holding that the assessee offered no explanation. The assessing officer further held that the assessee failed to substantiate the manner in which undisclosed income was derived. Before, ld CIT(A) the assessee urged that during the course of search the assessee declare income of ₹ 15,62,870/- during the statement recorded under section132(4). The assessee in the same statement specified that the said income has been derived from brokerage and financial advisory business. The assessee furt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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