2022 (5) TMI 952 - AT - Income Tax

Penalty u/s 271(1)(c) - amount offered by the assessee in the return of income pursuant to survey -voluntary/ suo motu offer of income - During the course of survey proceedings, the assessee surrendered income which was promptly included in the return of income filed afterwards - HELD THAT - A particular income can be added only when it is not offered in the return of income. If it is offered in the return of income, then that cannot be said to be added by the AO for the purposes of Explanation 1 to section 271(1). Explanations 5 and 5A of section 271(1) deal with the imposition of penalty under this provision even where the income in the given circumstances is declared in any return of income. The Explanations apply only in the case of search u/s.132 and not the survey u/s.133A of the Act. If the Explanations are excluded from the purview, which are applicable only in search cases and not otherwise, then, addition to income is sine qua non for imposition of penalty u/s.271(1)(c) of the Act. In the absence of any addition or disallowance made by the AO in the computation of total income, there can be no question of any penalty on the income suo motu offered by the assessee in his return of income. As found that the reported income and the assessed income of the assessee remain same except for minor disallowance of expenses. AO has imposed penalty only with reference to the amount of Rs.50.00 lakh and odd which was suo motu declared by the assessee in the return. In that view of the matter, the ratio laid down in MAK data Pvt. Ltd. 2013 (11) TMI 14 - SUPREME COURT has no application to the facts of the extant case as the income under consideration forming the foundation for the penalty is not the one which was added by the AO beyond the income returned. Assessee voluntarily offered the income, declared in the survey, in the return of income and the assessment was made without making any addition on that score, we hold that such an income cannot constitute the bedrock for the imposition of penalty u/s.271(1)(c) of the Act. We, therefore, order to delete the penalty. - Decided in favour of assessee.

Summary

Issues:
Penalty imposition under section 271(1)(c) of the Income-tax Act, 1961 for income declared during survey proceedings.

Analysis:
The appeal challenged a penalty of Rs.14,07,762 imposed by the Assessing Officer under section 271(1)(c) of the Income-tax Act, 1961 for the assessment year 2013-14. The penalty was confirmed by the CIT(A)-5, Pune. The facts revealed that during a survey on 13-09-2013, the assessee declared income of Rs.50,00,931, which was included in the return filed later. The AO imposed the penalty based on this declared income, which was upheld in the first appeal.

Upon examination, it was noted that the penalty was imposed on the income declared during the survey and included in the return. The issue at hand was whether penalty under section 271(1)(c) could be levied on such income. The Explanation 1 to section 271(1) stipulates that penalty is applicable to added or disallowed income not offered in the return. Explanations 5 and 5A apply to search cases under section 132, not surveys under section 133A. Without any addition or disallowance by the AO, no penalty can be imposed on income voluntarily declared in the return.

The Departmental Representative relied on the Supreme Court judgment in MAK Data Pvt. Ltd. Vs. CIT (2013) to support the penalty imposition. However, the Supreme Court's decision in that case was based on a scenario where the reported income was lower than the assessed income. In the present case, the reported and assessed income remained the same, except for minor expense disallowances. As the penalty was solely based on the voluntarily declared income, the MAK Data Pvt. Ltd. judgment did not apply.

Given that the assessee voluntarily declared the income from the survey in the return, and no additions were made by the AO, it was concluded that this income could not be the basis for imposing a penalty under section 271(1)(c). Therefore, the penalty was ordered to be deleted, and the appeal was allowed.