9911796707
TMI Blog2024 (11) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... these appeals were filed in the year 2020 & 2021 and the matter couldn't be heard due to frequent requests for adjournments. We note that the main grievance of the assessee is against the action of the Ld.CIT(A) confirming the penalty levied by the AO u/s. 271(1)(c) of the Income Tax Act, 1961 (hereinafter in short "the Act") for concealment of income. 2. At the outset, there is a delay of '1358' days in filing of the appeal for AY 2010-11 & '387' days in filing of the appeal for AY 2009-10. In this regard, it is noted that the assessee has filed an affidavit along with petition for condonation of delay dated 22.04.2022. The affidavit of the assessee has been duly notarized and the assessee submits that the impugned order is dated 17.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mismatch found during the course of survey, the RoI of the assessee was re-opened by issue of notice u/s. 148 of the Act on 24.11.2015. Pursuant to the notice, the assessee filed revised RoI and the AO passed Assessment Order u/s. 143(3) read with sec.147 of the Act on 19.12.2016 accepting the income returned by the assessee. The AO also initiated penalty u/s. 271(1)(c) of the Act (for concealment of particulars of income). According to the AO, during the penalty proceedings, the assessee was heard and thereafter, the AO levied penalty of Rs. 16 lakhs as under: The assessee's original return failed to reflect the true state of affairs. The Assessee was understating her turnover and concealing her income. It was only through the sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Also it is pertinent to mention that only when notice under 148 was issued a revised return was filed accommodating the findings of the survey. The AR made submission to the effect that Assessee made disclosures only to buy peace with the department and to avoid protracted litigation. It is true that Assessee has cooperated with the department and paid the tax liability raising out the revised return filed in reply to the notice u/s 148. However, this will not absolve the assessee from penal action initiated for the concealment of income. The Assessee's original return failed to reflect the true state of affairs regarding assessee's income as assessee concealed the same and I am convinced that this attracts penalty as contempl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d offered tax thereof which was also paid. The AO merely states that the original return filed doesn't reflect the true state of affairs and there was suppression of turnover by the assessee, so there was concealment on the part of the assessee and inaccurate particulars of income were furnished at the time of filing of original return. Having narrated the said facts, AO further noted about the notice issued u/s. 148 of the Act on 24.11.2015 and assessee filing return on 02.12.2016 admitting total income of Rs. 57,94,860/- and his action of accepting the RoI filed at Rs. 57,94,860/- by Assessment Order dated 19.12.2016 u/s. 143(3) read with sec.147 of the Act. Thereafter, he levied penalty of Rs. 11 lakhs. On appeal, the Ld.CIT(A) noted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal return in both the years. The AO/Ld.CIT(A) didn't bother to even point out how much amount the assessee has concealed. In other words, neither the Assessment Order nor the penalty order spells out as to what was the original returned income as well as the revised returned income. Therefore, merely based on projected financials contained in the hard disc found during survey and the statement which would have been recorded u/s. 133A of the Act, can't be the ground for levy of penalty, because, the AO failed to show that the assessee had deliberately under estimated her income. Survey team found the turnover not matching with books maintained by the assessee. Only the profit embedded in turnover can be brought to tax. Unless the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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