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TMI Blog2021 (7) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment year (AY) 2012-13. The Revenue has raised the following grounds of appeal: 1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the penalty of Rs. 64,49,270/- imposed under section 271(1)(c) of the Act. The Ld.CIT(A) did not appreciate the fact that Explanation 5A of section 271 of the Act is clearly applicable to this case as return of income was not filed till the date of search and due date of filing return of income had already expired. . 2. On facts and circumstances of the case, the Ld.CIT(A) ought to have upheld the penalty order of the Assessing Officer. 3. It is, therefore, prayed that the order of the Ld.CIT(A) may be set-aside and that of Assessing Officer may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of Rs. 3.12 crore was that assessee along with other five co-owner had sold land admeasuring 9000 sq. yard of land out of R.S. No. 11 of Sultanabad, Surat to M/s Milestone Developer. During the course of search, certain incriminating evidence was found disclosing payment of on money of Rs. 10.02 crore on sale of such plot. The said documents was inventorised and seized. On the basis of alleged incriminating material, the assessee declared undisclosed income of Rs. 3.12 crore. The additional income offered by assessee was accepted by AO without any variance. The AO issued show-cause notice under section 274 read with section 271(1)(c) on 27.03.2015. The assessee filed his reply on 28.08.2015. In the reply, the assessee contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosed additional income of Rs. 3.12 crore during the search. The assessee while filing return of income in response to the notice under section 153A disclosed the capital gain on 31.03.2014. The last date for filing return of income under section 139(4) for AY 2012-13 was 31.03.2014. At the time of search, last date for filing return of income for AY 2012-13 has not expired and as per Explanation-5A of section 271(1)(c) of the Act, penalty is leviable only where return of income for such previous year has been furnished before the date of search but such income has not been declared therein or the due date for filing return of income for such previous year has expired and the assessee has not filed return. The assessee further stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has declared the additional income in the return of income filed in response to notice under section 153A or under section 139(4). The ld. CIT(A) clarified that penalty has been levied on income declared in the return, filed in response to notice under section 153A and not on the additions/deviations made in the assessment order, with respect to which satisfaction has been recorded separately and penalty was initiated. The ld. CIT(A) also relied on the decisions of Hon'ble Delhi High Court in S.A.S. Pharmaceutical ( 335 ITR 259 and Hon'ble Gujarat High Court in Krit Dahyabhai Patel vs. ACIT (280 CTR 216), wherein it was held that penalty is not imposable, if the income has been declared in the return of income in response to the notice unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of search, due date of filing return of income under section 139(4) has not been expired. The assessee filed return of income on 31.03.2014 within due date. The AO wrongly applied Explanation-5A to section 271(1)(1)(c) of the Act without appreciating the fact that due date of filing return has not been expired on the date of search, hence, the case of assessee is not covered by the Explana;tion-5A, it has been held so by Mumbai Tribunal in ITO Vs Goplani & Ruchandani (supra). The ld. AR for the assessee also relied on the decision of Jurisdictional High Court in Kirit Dahyabhai Patel Vs ACIT (2017) 80 taxmann.com 162(Gujarat). 8. The ld. AR of the assessee in alternative submission submits that the AO while issuing show-cause notice unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied penalty by invoking the Explaination-5 of section 271(1)(c) and levied penalty @ of 100% of tax sought to be evaded. The ld. CIT(A) deleted the entire penalty by taking view that the assessee the impugned income of Rs. 3.12 Crore has been declared in the return of income filed in response to the notice under section 153A or under section 139(4). The ld CIT(A) also relied on the decision of Mumbai and Rajkot Tribunal in ITO Vs Gope M Rochlani (supra) and Hitesh Moolchand Doshi (supra) respectively. 10. The Hon'ble Gujarat High Court in Kirit Dahyabhai Patel Vs ACIT (supra), while considering the question of law "whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in law in restoring the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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