TMI Blog2018 (5) TMI 1910X X X X Extracts X X X X X X X X Extracts X X X X ..... seum [ 1990 (8) TMI 97 - BOMBAY HIGH COURT] Anant Shelters Pvt. Ltd. Vs. ITO [ 2016 (7) TMI 1533 - ITAT MUMBAI] CIT Vs. Aarkay Saree Museum [ 1990 (8) TMI 97 - BOMBAY HIGH COURT] . In the said circumstances, we are of the view that the finding of the CIT(A) is wrong against the law and facts, therefore, we set aside the same and delete the penalty. Accordingly, we allowed the appeal of the assessee. - I.T.A. No. 2711/Mum/2015 - - - Dated:- 17-5-2018 - SHRI AMARJIT SINGH, AM AND SHRI G. MANJUNATHA, JM For the Appellant : Shri Rajat Mittal ( DR) For the Respondent : Shri B.V. Jhaveri (AR) ORDER PER AMARJIT SINGH, JM: The assessee has filed the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealment of income or furnishing of inaccurate particulars of income. 5. The Commissioner (Appeals) erred in observing that further addition of ₹ 4,09,0007- has been made by the A.O. on the basis of documents only. 6. The Commissioner (Appeals) failed to appreciate that the addition of ₹ 4,09,0007/- was made by the A.O. by estimating the gross profit at 26.40% of the goods sold as against 25 20% adopted by the assessee while offering the income. 7. The Commissioner (Appeals) failed to appreciate that in The course of the search the alleged stock register was found for the months of January to March 2010 and no material was found for the earlier period of nine months and therefore, income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act was initiated and the penalty to the tune of ₹ 20,78,458/- was levied. The assessee filed an appeal before the CIT(A) who confirmed the said penalty, therefore, the assessee has filed the present appeal before us. ISSUE NOS 1 TO 6:- 4. We have heard the arguments advanced by the Ld. Representative of the parties and perused the record. All the issues are in connection with confirmation of the order of the AO to levy the penalty. The Ld. Representative of the assessee has argued that the penalty has wrongly been levied by the AO and confirmed by the CIT(A). Before going further, we deemed it necessary to advert the facts of the case on record. The assessee is proprietor of Zamkudi Fashions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn filed earlier u/s 139(1) of the Act become non-ets, therefore, in the said circumstances, the penalty is not leviable in view of the decision in the case of CIT Vs. B.G Shirke Construction (ITA. No. 1392 1531 of 2014, dated 06.03.2017) (Bombay High Court) and Pr. CIT Vs. Neeraj Jindal (2017) 79 taxmann.com 96) Delhi High Court. It is also argued that the addition on account of estimation of gross profit @26.40% instead of 25.20% doesn t amount to concealment of income. Therefore, in the said circumstances, the penalty is not leviable in view of law settled in Smt. Usha Ashokkumar Shah Vs. DCIT in ITA. No. 2766/M/2014 CIT Vs. Aarkay Saree Museum (187 ITR 147). On the other hand, the Ld. Representative of the Department has refuted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA. No. 1392 1531 of 2014, dated 06.03.2017) (Bombay High Court). It is held that: - 1.1. In the present facts for the subject assessment years it is an undisputed position that the pending assessment before the AO consequent to return filed u/s 139(1) of the Act for the subject assessment years had abated. This is on account of the search and as provided in second proviso to section 153A(1) of the Act. The consequence of notice u/s 153A(1) of the Act is that assessee is required to furnish fresh return of income for each of the sic assessment years in regard to which a notice has been issued. It is this return which is filed consequent to the notice which would be subject of assessment by the Revenue for the first time in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Vs. Neeraj Jindal (2017) 79 taxmann.com 96 ( Delhi High Court has also held that:- 2.1 Thus, it is clear that when the AO has accepted the revised return filed by the assessee u/s 153A, no occasion arises to refer to previous return filed u/s 139 of the Act. For all the purposes, including for the purpose of levying penalty u/s 271(1)(c) of the Act, the return that has to be looked at is the one filed u/s 15 3A . What is clear from this is that Section 153A is in the nature of a second chance givien to the assessee, which incidentally gives him an opportunity to make good omission if any, in the original return. Once the AO accepts the revised return filed u/s 153A, the original return u/s 139 abates and becomes non-est. No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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