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TMI Blog2019 (8) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) is attracted for concealment detected in the course of any proceeding under the Act, which cannot be limited to assessment proceeding and should have been held to include survey proceeding u/s 133A(1)? [C] Whether on the facts and circumstances of the case and in law, the Appellate Tribunal erred in not appreciating that even clause (a) of explanation 4 to section 271(1)(c) does not refer to returned income so as to limit the penalty u/s 271(1)(c) with reference to difference between tax on Assessed Income and Returned Income?" 3. It appears form the materials on record that survey under Section 133A of the Act was carried out on 17.07.2012. In the course of the survey proceedings, the assessee firm declared unaccounted income of Rs. 1,78,50,000/- received during A.Y. 2012-13. Later, the assessee filed its return of income on 28.09.2012 declaring its total income of Rs. 2,59,11,800/- including the unaccounted income of Rs. 1,78,50,000/- disclosed during the course of the survey proceedings. The case of the assessee firm was selected for scrutiny under the CASS and notice under Section 143(2) of the Act was issued on 23.09.2013. The assessment order under Section 143(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular about that income or furnished inaccurate particulars in relation thereto. There cannot be any concealment prior to filing of return. Question of consideration whether assessee is liable for action under section 271(1)(c) would arise only when return of income is scrutinized by the AO and he finds some more items of income or additional income over an above what is declared in the return. If it is so, the assessee would be liable for action under section 271(1)(c) in respect of such items only which are discovered by the AO on the scrutiny of return of income or after carrying out investigation and discovering some more items of income not found declared or mentioned in the return of income. Prior to filing of return of income there is no concept of concealment or furnishing of inaccurate particulars. 14. The initial phrase used in section 271(1)(c) suggests that AO has to find in the course of any proceedings under this Act that assessee has concealed the particulars of his income or furnished inaccurate particulars of such income. In fact, the proceedings against the assessee would start only after return of income is filed by the assessee or after issuance of stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has also held that penalty proceedings would depend upon the return of income filed by the assessee." 6. Having regard to the materials on record, the question would be as to whether penalty can be imposed under Section 271(1)(c) of the Act when the assessee has shown his income in the Income Tax Return filed by it and contends that he had voluntarily declared the same in the "regular return filed for the relevant year. 6.1 Section 271 clause 1(c) reads as under : "(1) If the Assessing Officer or the Commissioner (Appeals) or the Principal Commissioner or Commissioner in the course of any proceedings under this Act, is satisfied that any person - (c) has concealed the particulars of his income or furnished inaccurate particulars of such income;" 6.2 The principle argument of Mrs. Bhatt is that the assessee disclosed income of Rs. 1,78,50,000/- only on account of the survey proceedings conducted by the Income Tax Department. According to Mrs. Bhatt, if there would have been no survey action, the undisclosed income of the said amount would have remained undetected and the entire amount would have escaped. 6.3 In CIT vs. SAS Pharmaceuticals [2011] 335 ITR 259 (Delhi) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer who initiated the penalty proceedings and directed the payment of penalty. He had not recorded any satisfaction during the course of survey. Decision to initiate penalty proceedings was taken while making assessment order. It is, thus, obvious that the expression "in the course of any proceedings under this Act" cannot have the reference to the survey proceedings, in this case. 15. It necessarily follows that concealment of particulars of income or furnishing of inaccurate particular of income by the assessee has to be in the income tax return filed by it. There is sufficient indication of this in the judgment of this Court in the case of CIT v. Mohan Das Hassa Nand [1983] 141 ITR 203 (Delhi) and in Reliance Petroproducts Pvt. Ltd. [2010] 322 ITR 158 (SC) the Supreme Court has clinched this aspect, viz., the assessee can furnish the particulars of income in his return and everything would depend upon the income tax return filed by the assessee. This view gets supported by Explanation 4 as well as Explanation 5 and Explanation 5A of Section 271 of the Act as contended by the learned counsel for the Respondent. 16. No doubt, the discrepancies were found during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o difference as such in the return of income and the income. 6.5 In the peculiar facts of the present case, the Tribunal arrived at the conclusion that the case is not one of furnishing inaccurate particulars of income. At this stage, we deem it appropriate to reproduce the relevant findings recorded by the CIT(A), which ultimately, came to be affirmed by the Tribunal in its impugned order : "A survey action was carried out at the business premises of the appellant form. The income declared in return of income filed by the appellant included the amount surrendered by the appellant during the course of survey operations conducted by the department at business premises. During the course of survey operations, certain incriminating documents were found and one of the partners of the assessee firm Shri Jayantibhai Virjibhai Babariya declared addition income of Rs. 1,78,50,000/- for A.Y. 2012-13. The survey team did not make further enquiries nor was it established that these represented any other income. It is not a case where it was found / established that the income disclosed was not full and true. The department has not built a case where the explanation of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings recorded by the Tribunal, it is evident that the Tribunal has found as a matter of fact that there was no concealment of particulars of income on the part of the respondent assessee and in fact, the Assessing Officer had proceeded on the basis of the return filed by the assessee and particulars furnished therein. Under the circumstances, in the absence of any concealment of the particulars of income or furnishing of inaccurate particulars of income on the part of the assessee, no infirmity can be found in the impugned order passed by the Tribunal in confirming the order passed by the Commissioner (Appeals) in deleting the penalty under section 271(1)(c) of the Act. In the absence of any infirmity in the impugned order passed by the Tribunal, it is not possible to state that the impugned order gives rise to any question of law much less, any substantial question of law so as to warrant interference. The appeal is accordingly dismissed." 7. In the overall view of the matter, we have reached to the conclusion that no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the Impugned order. No interference is warranted in this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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