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TMI Blog2012 (12) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... uch after filing of the revised return, thus is not a fit case for levying the penalty u/s 271(1)(c) - in favour of assessee. - ITA No. 222/Ind/2012 & ITA No. 223/Ind/2012 - - - Dated:- 18-7-2012 - SHRI JOGINDER SINGH And SHRI R.C. SHARMA, JJ. Appellants by Shri S.N. Goyal and Shri Pankaj Shah Respondent by Shri R.A. Verma ORDER PER R.C. SHARMA, ACCOUNTANT MEMBER These are the appeals filed by different assessees against the order dated 5.3.2012 of the learned CIT(A) for the assessment year 2005-06 in the matter of imposition of penalty u/s 271(1)(c) of the Income Tax Act, 1961. 2. As the facts are common in the cases of both the assessees, both these appeals are heard together and are now being disposed of by this consolidated order. 3. Rival contentions have been heard and record perused. The facts, in brief, are that the assessee had shown income on account of long term capital gain out of sale of shares of M/s Robinson Limited. There was survey u/s 133A in case of DSP Shares Securities wherein statement of Shri Shigal Shah was recorded. An inquiry was also strated against the assessee in which various details and documents were calle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it was initiated. Reliance was placed on the decision of the Gujarat High Court in the case of A.M. Shah Company; 238 ITR 415 wherein it was held that charge and levy of penalty should be for the same reasons i.e. the basis for issue of notice and for imposition of penalty must be same. In view of this judgment, the ld. Counsel for the assessee contended that the penalty should be deleted. Reliance was also placed on the decisions of the following High Courts where it is held that penalty initiated on a particular ground cannot be levied or upheld on a different ground :- i. CIT v. Lakhdir Lal Ji; 85 ITR 77 (Guj) ii.Sarabhai Chemicals Pvt. Ltd. Vs.CIT; 257 ITR 355 (Guj) iii.CIT v. Baroda Tin Works; 221 ITR 661 (Guj.) iv.National Textile v. CIT; 249 ITR 125 (Guj) v.ACIT v. Nihalchand; 135 ITR 519 (MP) (Guj.) 5. The ld. Counsel for the assessee further contended that the penalty was levied merely on the basis of statement of a third person recorded at the back of the assessee. The ld. Counsel for the assessee also contended that pursuant to the statement recorded u/s 133A of ShriSuraj Shah of DSP Shares, the inquiry was made on the assessee in which various details an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance was placed on the decision of the Punjab Haryana High Court in the case of Guru Ramdas; 254 ITR 361 and ITAT, Jodhpur Bench in the case of Mahavir Tiles; ITA No. 233/JU/10. 6. Reliance was placed on the decision of the Hon ble Rajasthan High Court in the case of Unique Precured Retraders; 13 DTR 215 wherein it was held that no penalty is leviable in respect of disclosure of additional income after survey. Reliance was also placed on the decision of the Hon ble Madras High Court in the case of M. Pachamuthu; 295 ITR 502 wherein it was held that mere addition agreed to by the assessee during the course of survey would not empower the Assessing Officer to levy penalty u/s 271(1)(c) of the Act. 7. On the other hand, the learned Senior DR supported the orders of the authorities below for imposing the penalty on the plea that in the original return, the assessee has offered the capital gains as exempt which was found to be taxable after inquiry. Reliance was placed on the decisions reported as 163 ITR 440 and 335 ITR 23. 8. We have considered the rival submissions, perused the material available on record, carefully gone through the orders of the authorities below and del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee had filed inaccurate particulars. Such burden, it was decided, by the Tribunal was not discharged by the Revenue. It was this view, which was endorsed by the High Court in CIT v. Rajiv Garg [2009] 313 ITR 256 (P H) in a common judgment for members of the Garg family on similar facts. 9. In the instant case, undisputedly the assessee has offered additional income much prior to issue of notice u/s 148. Hon ble Punjab Haryana High Court in the case of Guru Ramdas (supra) has held that if the revised return is filed after investigation started but before issue of notice u/s 148 then no penalty is leviable. Hon ble Supreme Court in the case of Sureshchand Mittal; 251 ITR 9 held that where the assessee has surrendered additional income by way of revised return after persistent queries by the Assessing Officer, once the revised return has been regularised by the Revenue, the explanation of the assessee that he has declared additional income to buy peace and to come out of the vexed litigation could be treated as bonafide and penalty u/s 271(1)(c) was not leviable. 10. ITAT, Indore Bench in the case of Ashok Kumar Jain HUF in ITA No. 580/Ind/2010 vide order dated 14.9.2011 has hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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