TMI Blog2020 (2) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... l appearing for the Revenue and having gone through the materials on record, we are of the view 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. The question proposed by the Revenue, in our opinion, cannot be termed as a substantial question of law involved in this appeal. - R/TAX APPEAL NO. 837 of 2019 - - - Dated:- 10-2-2020 - MR.J.B. PARDIWALA AND MR. BHARGAV D. KARIA JJ. Appearance: MRS MAUNA M BHATT(174) for the Appellant(s) No. 1 for the Opponent(s) No. 1 ORAL ORDER (PER : MR.J.B.PARDIWALA) 1 This Tax Appeal under Section 260A of the Income Tax Act, 1961 [for short, 'the Act, 1961'] is at the instance of the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncealed particulars of its income and furnished inaccurate particulars of its income. The Assessing Officer took the view that the assessee had offered the onmoney receipts for taxation after being caught by the department on account of survey action. 5. The assessee being dissatisfied preferred appeal before the CIT(A) against the penalty order passed by the AO under Section 271(1)(c) of the Act, 1961. The CIT(A) allowed the appeal of the assessee holding as under: 4 I have carefully perused the material available, and also the relevant statutory provisions and Authorities relied upon by the appellant. Some fundamental and most relevant facts are not in dispute. The appellant was covered u/s 133A, and not u/s 132. The appellant fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Explanations 1 to 5A to see whether somehow AO s action fits anywhere therein. Explanation 1 is ruled out as there is no addition / disallowance made by the AO. Explanations 2 to Explanation 5 are also clearly not applicable or relevant. Explanation 5A .is also ruled out on multiple counts. First, there is no warrant u/s 132 executed in case of the appellant, therefore, the words in the Explanation where in the course of a search, the assessee is found to be th e owner of would exclude the non-searched entities like appellant. Secondly, even if we presume that nonsearched entities are also covered under Explanation 5A, then also the assessment year under appeal is beyond the mischief, as Explanation 5A applies to the Assessment Years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. As such, on similar facts, I have already taken a view that penalty u/s 271(1)(c) is not sustainable when no addition/disallowance is made by the AO in assessment framed u/s 143(3) on the regular return filed u/s 139 by non-searched entity, despite the fact that the income returned and assessment framed does include amount disclosed u/s 132. 15 Thus, and in other words, the Explanation 5A, the only provision enabling the AO to initiate / levy penalty u/s 271(1)(c) notwithstanding the relevant amount having been disclosed in any return filed subsequent to search, applies to the assessment years other than and preceding to the specified previous years as defined u/s 271AAA. Obviously, the Assessment Year under reference is an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithdrawals were not shown in her return of income emphasize assessee s Willful act of concealment of income . However, even mere plain reading of the provisions would and should have enlightened the AO that even if all these presumptuous allegations were established by her as against having been merely surmised or suspected, then also, unless some addition or disallowance were made to the income returned u/s 139, no penalty u/s 271(1)(c) is leviable except by invoking Explanation 5A. As such, absence of concealment or inaccuracy is impliedly admitted by the AO herself by way of not making any addition/disallowance in the assessment framed. The computation machinery also has been wrongly applied by AO. In sum total therefore, I agree wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were subsequently shown in the regular returns of income filed under section 139(1) of the Act. These returns were accepted by the AO without any addition or disallowance nor pointed out any discrepancies during the assessment. However, the impugned penalty was levied on the premise that the assessee would not have disclosed the receipt of onmoney, but for the survey action. It is the case of the assessee that income admitted during survey u/s.133A when disclosed in the return of income furnished on or before due date and the same is accepted by the AO, there cannot be case for levy of penalty. When the due date for filing return of income was not expired, then how the AO could infer that the assessee would not disclose the income in its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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