TMI Blog2020 (2) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the undisclosed income admitted by the assessee in the statement furnished under section 131 of the Act was made. Accordingly, we are not impressed with the argument of the learned DR that there was a question raised about the reasons which has affected the income of the assessee. In our view, such question raised by the AO is a general question and has nothing to do with the income of the assessee admitted by him in the statement furnished under section 131 of the Act. Accordingly we can safely assume that the assessee has disclosed the impugned income voluntarily prior to the detection by the Income Tax Office. Assessee filed his original return of income dated 30- 03-2012 which is belated income tax return under section 139(4) of the Act. It is the settled law that the belated return cannot be revised under the provisions of section 139(5) of the Act. In view of the above we hold that there was no possibility for the assessee to revise the return of income under the provisions of the Act. Accordingly, the assessee had no option except to revise the computation of income. Accordingly, we conclude that the assessee has made suo moto disclosure of income as discussed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. Subsequently the questionnaire u/s 142(1) of the Act was issued with respect to cash payment above ₹ 20000 and expenses incurred for earning agricultural income. However during assessment proceeding the assessee voluntary filed the revised computation of income by offering an additional income of ₹ 76,46,699/- only. The assessee explained that there was the search operation at the premises of third party namely Dhanjimama Group where some incriminating materials related to land deal were found which is related to him. Hence in order to buy peace with department he is offering the additional income. The AO accepted additional income and added the same to total income of the assessee. The AO further initiated penalty proceeding under section 271(1)(c) on the same for filing inaccurate particular of income and concealment of income. 3.1 During the penalty proceedings the assessee submitted that he has not concealed or furnished inaccurate particular of income as he has voluntary offered additional income without any finding from the AO in this regard. Therefore no penalty should be warranted on voluntary admission. The assessee in support of his contention r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a paper book running from pages 1 to 45 and submitted as follows: I. AO has levied penalty without mentioning any specific charge. As such AO in penalty {notice has levied both the charges. In the penalty order on page 2 AO notes that notice was issued for furnishing inaccurate particulars of income whereas on page 10 AO holds appellant liable to penalty for concealment of income while in Para 10 on page 11 there is no charge specified by AO while drawing the conclusion. Hon'ble courts have held that penalty cannot be imposed without mentioning specific charge. 1. New Sorathia Engineering 282 ITR 642 (Guj) 2. Manu Engineering 122 ITR 306 (Guj) 3. Snita Transport Pvt Ltd 42 taxmann.com 54 (Guj) Followed in plethora of cases by Hon'ble ITAT (Ahd) 1. Hatish Prabhudas Chaudhary ITA # 3557/A/2016 [P/B pg 29 - 36] 2. Ushaben Atulbhai Shah ITA # 197/A/2017 [P/B pag 37 - 45] II. Appellant makes following submissions on merits: Appellant is an investor, dealer broker in property transactions. Receiving Information of search action on Dhanjimama group, since appellant had dealings with the group, as abundant cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the assessment proceedings under section 143(3) of the Act. The income disclosed by the assessee was accepted as it is by the AO during the assessment proceedings. 10.1 Undisputedly, the assessee has admitted the undisclosed income of ₹ 1 crores approximately for his family in the statement furnished under section 131 of the Act in connection with search proceedings at M/s DhanjiMama Group which was conducted dated 30th July 2012. As such, the assessee was issued a notice under section 131(1A) of the Act in connection with the search proceedings at M/s DhanjiMama Group wherein the undisclosed income of ₹ 1 crores approximately was accepted for the entire family of the assessee. A sum of ₹ 76,46,698/- out of the total undisclosed income of ₹ 1 crores approximately pertained to the assessee for the year under consideration. 10.2 The main thrusts of the revenue are twofold for holding that the assessee has concealed the particulars of income as detailed under: i. The assessee disclosed the impugned income as a result of search at M/s Dhanjimama Group wherein the assessee was called upon as witness under the provisions of section 131(1A) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely assume that the assessee has disclosed the impugned income voluntarily prior to the detection by the Income Tax Office. 10.6 We also find that the assessee filed his original return of income dated 30- 03-2012 which is belated income tax return under section 139(4) of the Act. It is the settled law that the belated return cannot be revised under the provisions of section 139(5) of the Act. In view of the above we hold that there was no possibility for the assessee to revise the return of income under the provisions of the Act. Accordingly, the assessee had no option except to revise the computation of income. 10.7 Taking up the matter further, we note that the principles laid down by the Hon ble Apex Court in the case of MAK Data (P) Ltd vs. CIT reported in 358 ITR 593, in our humble opinion are factually different from the present facts of the case. In that case there were many documents found during the survey proceedings which were incriminating in nature. Thereafter a specific query was raised by the AO with respect to such incriminating documents found during the course of survey. Thus, the assessee in response to such specific query surrendered income of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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