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TMI Blog2021 (10) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of the case, the Ld. CIT(A) has erred in deleting the penalty levied u/s 271(1)(c) of the I.T. Act of Rs. 62,54,166/-, without appreciating the fact that the assessee disclosed unaccounted income of Rs. 2.02 crores during the survey action u/s 133A of the Act, conducted on the assessee. 2. On the facts and circumstances of the case, the Ld. CIT(A) failed to appreciate the fact that the disclosed unaccounted income was never part of books of accounts of the assessee and had there been no survey action on the assessee, the income of Rs. 2.02 crores would have escaped assessment. Therefore, the income declared in the return filed after the date of survey, cannot be considered as 'voluntary'. 3. On the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the course of survey operation was declared in the return of income filed on 29.03.2014, which is belated return. The AO formed an opinion that but for the survey operation the receipt of on-money of Rs. 2,02,40,024/- would not have been disclosed in the return, accordingly, initiated penalty proceedings u/s 271(1)(c) of the Act for concealment of income. Accordingly, a show cause notice u/s 274 r.w.s. 271(1)(c) of the Act was issued on 21.03.2016, in response to which, it was explained that no penalty is leviable as there is no variation between the returned income and assessed income. However, the AO rejecting the above explanation held that the respondent assessee is guilty of concealment of income, as the receipt of on-money would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent appeal relates to the levy of penalty u/s 271(1)(c) of the Act. Admittedly, there is no variation between the returned income and assessed income. Though the return of income was filed belatedly, nevertheless it is return of income under the provisions of section 139 of the Act and the findings of ld. CIT(A) that the penalty is not leviable u/s 271(1)(c) of the Act is based on correct appreciation of facts and law governing the levy of penalty in the facts of present case. It is settled position of law that the penalty u/s 271(1)(c) of the Act is leviable with reference to concealment in the return of income. Reference can be made to the following decisions: (a) N.A. Malbary & Bros. Vs. CIT, 51 ITR 295 (SC) (b) CIT Vs. Onkar Sara ..... X X X X Extracts X X X X X X X X Extracts X X X X
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