TMI Blog2019 (6) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... s offered u/s 132(4) of the Act or when pursuant to the said disclosure return of income was filed. We note that in his appellate order, Ld. CIT(A) has referred several case laws and without showing as to how these are comparables or applicable on the facts of the case decided the issue in favour of the assessee. We further note that Hon ble Apex Court has an occasion to consider the issue of levy of penalty u/s 271(1)(c) of the Act with respect to claim of voluntary disclosure in the case of MAK Data Pvt. Ltd. vs CIT [ 2013 (11) TMI 14 - SUPREME COURT ] . In our considered opinion on the facts and circumstances of the case, the issue needs to be remitted to the Ld. CIT(A) to consider the issue in light of observation as above. Ld. CIT(A) shall also consider the case laws and other submissions been made by the Ld. Counsel of the assessee. - Appeal filed by the Revenue stands allowed for statistical purpose. - ITA No.309/Mum/2016, CO No.57/Mum/2019 (Arising out of ITA No.309/Mum/2016) - - - Dated:- 7-5-2019 - Shri Shamim Yahya, Accountant Member And Shri Pawan Singh, Judicial Member For the Assessee : Shri V. Mohan For the Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows- ...These payments were not the genuine payment and were subsequently received back by the assessee.... The assessee thus revised its return and surrendered the amount of ₹ 1,20,74,454/- (₹ 1,17,74,454/- + ₹ 3,00,000/-) as its income. Assessment order was passed and penalty show-cause u/s 274 r.w.s. 271(1)(c) was issued to the assessee on 30-12-2011 for concealment of income of ₹ 1,20,74,454/-. Issue of unaccounted cash payments- On perusal of pages 1 and 2 of item 19 of annexure B-1 seized from the MID C, Butibori premises of the assessee, during assessment proceedings, it was seen that the assessee had paid Ps. 13,50,000/- in cash against the purchase of property at Anna Nagar, Chennai. On verification these payments were found to be unrecorded in the books of the assessee. When the assessee was confronted on the issue, the assessee replied as follows- .This property is accounted for in the books of Shel during the F. Y 2007-08. Ledger extract is enclosed for verification. However as per the said documents an amount of ₹ 13,50,000/- paid for parking is unaccounted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 132(4) on 07.10.2009 declaring total unaccounted income for the search period at ₹ 50.00 crores to cover the various irregularities observed in the course of search in order to buy peace and to avoid litigation. The assessee also paid the due taxes and interest on the amount of voluntary declaration as above. .. 5. The assessee has vide its written reply filed . ............. Voluntarily surrendered the following amounts as undisclosed income for the assessment year 2008-09: a) An amount of ₹ 1,20,74,454/- in respect of some payments to the subcontractors i.e M/S Siva Construction and Krat Engineers. b) ₹ 6,60, 800/- towards agreement of Sale with MIS Udha yam foundations, Chennai. c) ₹ 4,80,2401- and ₹ 46,98,184 for purchase of property at Gan.qkiicj. 6. That as against the total declaration of ₹ 5.00 crores made at time of statement filed u/s 132(4) as mentioned in para 2 supra, the assessee filed its revise return on 27. 12.2011 declaring additional income of ₹ 1,85,00,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,42,13,619/- and penalty needs to be levied upon the assessee u/s 271(1)(c) of the I.T. Act. 4. Against above order, assessee appealed before the Ld. CIT(A). The Ld. CIT(A) referred to assessee s submissions. He observed as under:- The order of penalty of the AO dated 18.06.2012 and assessee s arguments during hearing as well as assessee s submissions have been considered. It is a fact that the assessee has made declaration and disclosed the income u/s 132(4) amounting to ₹ 50 crores for the entire group of cases in which search was conducted u/s 132. It included amount of ₹ 1,85,00,000/- which related to Assessment Year 2008-09 in the case of M/s Sunil Hitech Engineers Ltd. Though the difference between assessed income of ₹ 33,64,88,160/- and the total income as per the original return u/s 139 filed on 24.09.2008 is ₹ 1,66,67,760/-, the AO has wrongly treated the concealed income at ₹ 2,42,13,619/-. 5. Therefore, Ld. CIT(A) referred to several case laws and concluded as under:- Respectfully, following the judgment of the Hon ble ITAT, Nagpur Bench in the case of DCIT vs Purti S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuant to the said admission taxes were paid by the assessee or in which return filed the said disclosure was made. We find that provisions of law under section 271(1)(c) for search conducted is contained in Explanation 5 Explanation 5A to that section. We note that Ld. CIT(A) in his appellate order has not dealt with the concerned section. He has also not dealt with the Assessing Officer s observation that the offer of income was not voluntarily. We also note that Ld. CIT(A) has not dealt with as to when assessee paid the taxes in accordance with his offered under section 132(4) of the Act or when pursuant to the said disclosure return of income was filed. We note that in his appellate order, Ld. CIT(A) has referred several case laws and without showing as to how these are comparables or applicable on the facts of the case decided the issue in favour of the assessee. We further note that Hon ble Apex Court has an occasion to consider the issue of levy of penalty u/s 271(1)(c) of the Act with respect to claim of voluntary disclosure in the case of MAK Data Pvt. Ltd. vs CIT, vide order dated 31/10/2013. In our considered opinion on the facts and circumstances of the case, the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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