TMI Blog2021 (10) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee cannot be held to have concealed or furnished the particulars of income since the income declared during the course of survey has been offered to tax in the return of income filed before the due date of filing the return of income. We, thus, find no reason to interfere in the finding of Ld. CIT(A) and the same stands confirm. Grounds raised by the revenue are dismissed. - ITA No. 334/Ind/2020 - - - Dated:- 30-9-2021 - Rajpal Yadav, Vice President And Manish Borad, Member (A) For the Appellant : Harshit Bari, Sr. DR For the Respondents : S.N. Agrawal and Bhavesh Agrawal, ARs ORDER Per Manish Borad, AM The above captioned appeal filed at the instance of the Revenue for Assessment Year 2011-12 is directed again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f penalty is valid since the revised return was filed only after discovery of concealment by the Revenue. Therefore, the AO levied penalty of ₹ 70,00,000/- u/s. 271(1)(c) of the Act. 4. Aggrieved assessee preferred an appeal before the ld. CIT(A) challenging the levy of penalty u/s. 271(1)(c) of the Act and succeeded. 5. Now revenue is in appeal before this Tribunal. 6. Ld. Departmental Representative (DR) supported the order of Ld. AO. 7. Per contra, Ld. counsel for the assessee relied on the finding of Ld. CIT(A) and also referred to the written submissions and paper book placed at pages 1 to 100. 8. We have heard rival contentions and perused the records placed before us and carefully gone through the judgments refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return of income have not found to be untrue. In support of this view we rely on the judgment of Hon'ble High Court of Gujarat in the case of CIT vs. R. Umedbhai Jewellers Pvt. Ltd. In ITA No. 549 of 2016 wherein it has been held that where assessee having filed the return of income by the due date, in which disclosed income during the survey was also offered to tax and no further addition has been made during the assessment, the question of assessee having furnished inaccurate particulars of the income and imposing penalty thereon would not arise. 10. Similar view was also taken by Hon'ble High Court of Delhi in the case of CIT vs. SAS Pharmaceuticals (2011)335 ITR 259 (Del) wherein Hon'ble High Court held as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the Revenue relying upon the expression in the course of any proceedings under this Act occurring in Sub-section (1) of Section 271 of the Act and contending that even during survey when it was found that the assessee had concealed the particular of his income, it would amount concealment in the course of any proceedings . The words in the course of any proceedings under this Act are prefaced by the satisfaction of the AO or the Commissioner of Income Tax (Appeals). When the survey is conducted by a survey team, the question of satisfaction of AO or the Commissioner (Appeals) or the Commissioner does not arise. We have to keep in mind that it is the AO who initiated the penalty proceedings and directed the payment of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duly and unambiguously satisfied. Since the assessee was exposed during survey, may be, it would have not disclosed the income but for the said survey. However, there cannot be any penalty only on surmises, conjectures and possibilities. Section 271 (1) (c) of the Act has to be construed strictly. Unless it is found that there is actually a concealment or non-disclosure of the particulars of income, penalty cannot be imposed. There is no such concealment or nondisclosure as the assessee had made a complete disclosure in the income tax return and offered the surrendered amount for the purposes of tax. 17. We, thus, answer the questions as formulated above, in favour of the assessee and against the Revenue finding no fault with the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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