TMI Blog2019 (9) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... fully following judgement of Hon ble Gujarat High Court rendered in the case of Kirit Dahyabhai Patel Vs. ACIT [ 2015 (1) TMI 201 - GUJARAT HIGH COURT ] and other case laws as relied by the assessee, direct the A.O. to delete the penalty. The appeal of the assessee is allowed. - ITA No.526/Ahd/2018, ITA No.527/Ahd/2018, ITA No.528/Ahd/2018 - - - Dated:- 19-9-2019 - Shri Kul Bharat, Judicial Member For the Appellant : Shri P.F. Jain, A.R. For the Respondent : Shri N.K. Goel, Sr.D.R. ORDER PER KUL BHARAT, J.M: These three appeals by three different assessees are directed against three different orders of the Ld. CIT(A)-11, Ahmedabad da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings have been initiated u/s 271(1)(c) of the Act for concealment of income. He submitted that as the income of return filed u/s 153A and assessed income are the same, no penalty can be levied and the case of the assessee is covered by the following decisions: 1. The above appeals are covered by the order of ITAT, in their own case vide ITA No.4.5.6/Ahd/2018 pronounced on 19/07/2019 by ITAT SMC Bench. The facts are same. 2. Kirit Dahyabhai Patel (2017) 80 Taxman.com.162(Gujarat) 3. Neeraj Jindal (2017) 79 Taxmann. Com. 96 (Delhi), 393 ITR 1(Delhi) :- The Hon'ble High Court refered to decision of Gujarat High Court in the case of Kirit Dahyabhai Patel (Para. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn filed under section 153A of the Act. 6.1 From the preceding discussion and on perusal of the order of the authorities below, we note that there was no reference made to any incriminating document found during the search. Therefore, we re of the view that the addition of undisclosed income was based on the statement furnished under section 132(4) of the Act. 7. Further, reliance is placed on the judgement of the Hon ble jurisdictional High Court rendered in the case of Kirit Dahyabhai Patel Vs. ACIT (2017) 80 taxamann.com 162 (Gujarat). The Hon ble High Court has decided the issue as follows: 13. Considering the facts and circumstances of the case and also considering the decisions r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiring him to furnish, within such period as may be specified in the notice, return of income in respect of six assessment years immediately preceding the assessment year relevant to the previous year in which (he search was conducted under Section 132 or requisition was made under Section I32A. The Assessing Officer shall assess or reassess the total income of each of these six assessment years. Assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under Section 132 or requisition under Section 132A, as the case may be, shall abate. [Ref to Memorandum accompanying the Finance Bill, 2003] Section 153A opens with a non-obstanle cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139. 9. The revenue has not brought any contrary binding precedent to our notice. It is transpired from the assessment order that the assessee has filed the return for the first time u/s 153A of the Act and no return was filed before initiation of search. Therefore, in terms of section 153A of the Act, return filed u/s 153A of the Act would be deemed to be return filed u/s 139 of the Act and all consequential provisions would apply. The Ld. D.R. has not rebutted this fact. I therefore, respectfully following judgement of Hon ble Gujarat High Court rendered in the case of Kirit Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA No.528/Ahd/2018 for the A.Y. 2012-13 and the assessee has raised following grounds of appeal: 1. The learned CIT(A) has erred in law and on facts in upholding penalty of ₹ 1,46,160/- levied u/s 271(1)(c) without properly appreciating the facts of the appellant. 2. The learned CIT(A) has erred in law and on facts in not considering the submission dated 18.8.2015 and the decision of ITAT Delhi relied upon by the assessee in the case of Prem Arora and Pawerkumar Gupta and ignoring the fact that return income in response to notice u/s 153A is the assessed income u/s 153A(1)(b). 3. On the facts no such penalty u/s 271(1)(c) ought to have been levied. 4. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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