TMI Blog2019 (1) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... dings would depend upon the return of income filed by the assessee. No reason to interfere with the order of ld.CIT(A) and we accordingly confirm the same. Accordingly, the grounds of appeal as raised by the Revenue are therefore dismissed. The finding in this case is mutatis mutandis apply to all the group of Nine Appeals mentioned in above table at page 1 2, accordingly all the grounds in respect of above Nine Appeals are dismissed. - 2961/Ahd/2016, 2962/Ahd/2016, 2963/Ahd/2016, 2965/Ahd/2016, 2970/Ahd/2016, 2971/Ahd/2016, 3024/Ahd/2016, 3025/Ahd/2016, 3047/Ahd/2016 - - - Dated:- 25-1-2019 - SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER For the Appellant : Shri Dhawal Mehta - CA For the Respondent : Shri Srinivas T. Bidari Sr.DR ORDER PER BENCH: 1. These appeals by Nine assessee s are being decided by a common order as facts and circumstances and position of law in terms of the prayer made by the parties before the Bench remain identical in each of these appeals. These appeals have been filed by the Revenue pertaining to 2013- 14 in the respective appeals which arise out of identical o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to give the relevant details of the persons from whom on-money was stated to have been received. It was his submission that the amount disclosed in the survey is an afterthought although it was included in the income of the assessee under the head of business and profession but since details were not made available, the AO in the absence of relevant details held it taxable u/s.68 of the Income Tax Act. On the basis of this penalty proceedings have been initiated and the penalty has been levied. Inviting our attention to the penalty order and the reply of the assessee in the penalty proceedings vide letter dated 08.09.2015 which was considered and not accepted. The same reads as under : 3.1 During the course of survey, the assessee has made disclosure of ₹ 3.50 cr. For the current assessment year. The assessee has shown and offered this disclosure for the taxation in the audit report as well as in the return of income filed and paid the due taxes before the due date for filing the return of income. 3.2 The penalty proceedings is initiated since, the assessee has declared the undisclosed income during the course of survey action and offered for taxation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reunder : Thus, the following points emerge as regards to the penalty proceedings : 1. The assessee has failed to give any justification or acceptable explanation against charge of furnishing inaccurate particulars of income; 2. In the penalty proceedings, the assessee has failed to advance any evidence in support of its claims and contentions and all the arguments of the assessee have been found to be of no consequence. 3. Further, the assessee has not preferred an appeal before the CIT[A] against the assessment order u/s. 143[3] dtd. 16.3.2015, which proves that the assessee has no objection to the disclosed income of ₹ 3,50,00,000/- being considered as deemed income u/s.68 of the I.T.Act. Hence, logically and inescapably, this case falls within the mischief of section 271(1)(c). The case of the assessee clearly attracts the penal provision of section 271(1)(c). 6. Relying on the said para the ld.CIT-DR inviting our attention to the impugned order submitted that relief has been granted by the CIT(A) for the reasons set out in para 7 to 7.2 which is assailed by the Revenue. The relevant extract which is common in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire gamut of facts and circumstances, the following pertinent observations/decisions are made on the issue: a) The total income returned and the assessed income is the same. The penalty u/s. 271(l)(c) of the Act starts from the furnishing of details of income in the return and not before that. This is clear from the scheme of the Act and has been held and observed time and again including in the following cases: i) The Hon'ble High Court of Rajasthan in the case of CIT v. Unique Precured Retraders (2008) 13 DTR (Raj) 215. ii) The Hon'ble Jurisdictional High Court of Gujarat in the case of Principal CIT Vs. Valibhai Khanbhai Mankad 2015-TIOL 2164-HCAhm- IT has held that penalty u/s. 271 (1) (c) cannot be levied when there is no dispute with regard to fact that the particulars of income disclosed during the course of survey were duly reflected in the return of income. iii) The Hon'ble High Court of Delhi in the case of CIT Vs. SAS Pharmaceuticals (2011) 335 ITR 0259 (Del). b) No penalty is leviable just because an issue was not appealed against the quantum order. Time and again it has been held that the penalty proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely because assessee has shown income in return as short term capital gain, which was assessed by AO as business income, it cannot amount to furnishing of inaccurate particulars for purpose of levy of penalty u/s.271 (1)(c). 2) The Hon'ble Mumbai Bench of the ITAT in the case of ITO Vs. Roborant Investments (P) Ltd. (2006) 7 SOT 181 (Mumbai) has held that the assessee having made full and complete disclosure, merely because income returned by assessee under a particular head was assessed by the AO under another head is not sufficient to impose penalty by invoking Expln. 1 to s. 271 (1 )(c). In the totality of facts and circumstances of the case, the penalty u/s 271(1) (c) is held not imposable; where no addition has been made to the total income assessed vis-avis the returned income with respect to the impugned income, it involves allegation of a mere change of head without any tax effect, no explanation has been proved bogus or mala fide. Therefore it is directed to be deleted. The grounds of appeal are allowed. 8. In the result, the appeal of the assessee is allowed. 7. The ld.CIT-DR in support of the departmental grounds assailing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an undisputed fact that the assessee had declared this income in his original return of income, although it was a belated return. The Tribunal was of the view that as per the provisions of section 271(1)(c) of the Act, penalty can be imposed if the assessee had concealed the particulars of income or has furnished inaccurate particulars of such income. That in the present case, there was no dispute with regard to the fact that the particulars of income were reflected in the return of income. Moreover, it was not the case of the revenue that the returns of income filed were invalid and in fact, the Assessing Officer had proceeded on the basis of the return filed by the assessee and particulars furnished therein. From the 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was deleted. The ld.AR further placed reliance on the decision in the case of ITO vs Roborant Investments Pvt. Ltd [2006] 7 SOT 181, CIT Vs. Aretic Investment (P) Ltd. [2010] 39 DTR 293 (Del). 11. Ld.AR also submitted that the reliance placed by the Revenue on the decision in the case of Mak Data Pvt. Ltd. vs. CIT [2013] 358 ITR 593 (SC), is misplaced in the present case. In the said case, a survey was conducted more than 10 months before and the disclosure was made by the assessee later during the course of assessment proceedings. Therefore, the Hon'ble Supreme Court had held that the assessee had no intention to include the income found during the course of survey whereas in the facts of the present case the amount disclosed during survey was duly included in the original return of income filed after the date of survey. Therefore, the facts of the said case are distinguishable. Further, there is no difference in the return of income and the income assessed. 12. It was further argued that as per provisions of section 271(1)(c) in order to levy penalty there must on the amount of tax sought to be evaded by reason of concealment of income. In the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation 1 Where in respect of any facts material to the computation of the total income of any person under this Act,- (A) such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Commissioner to be false or (B) such person offers an explanation which he is not able to substantiate and [fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him]. Then the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section be deemed to represent the income in respect of which particulars have been concealed. 14. From the last portion of the section i.e. the amount added or disallowed in computing total income be deemed to represent the income in respect of which particulars have been concealed would indicate that it is only the addition or disallowance to the total income that would represent the income for the purposes of levy of penalty within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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 and 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. 16. 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 statutory notice against him such as under section 142(1) or u/s 143(2). Carrying out survey under section 133A is not at all any proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 accordingly dismissed. 18. We further note that the ld.AR has placed reliance in case of CIT vs Amit Jain [2013] 33 taxmann.com 178 (Del) wherein the Hon'ble Delhi High Court has held in para 3 as under : 3. This court notices that the Tribunal, while upholding the order of the Appellate Commissioner, relied upon the decision in CIT v. Reliance Petroproducts (P.) Ltd. [2010] 322 ITR 158/189 Taxman 322 (SC). Furthermo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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