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TMI Blog2015 (10) TMI 2044X X X X Extracts X X X X X X X X Extracts X X X X ..... - Shri Kul Bharat, JM, Manish Borad, AM. For The Appellant : Shri Anil Kshatriya, AR For The Respondent : Shri R. P. Maurya, Sr. DR ORDER PER Manish Borad, Accountant Member. These two appeals bearing IT(SS)A No.404/Ahd/2011 relevant to AY 2004-05 is filed against the order of CIT(A) II, Ahmedabad dated 25.3.2011 and IT(SS)A No.405/Ahd/2011 relevant to AY 205-06 is filed against the order of CIT(A)-II, Ahmedabad dated 25.3.2011. As both the appeals pertain to the same assessee and similar issues are involved, these were taken up for hearing together and are being disposed of respectively for the sake of convenience. 2. First we deal with IT(SS)A No.404/Ahd/2011 for AY 2004-05 wherein the following grounds of appeal have been raised:-1. As regards levy of penalty u/s 271(1) of the Act. The ld. CIT(A) had erred on the facts of the case in upholding the levy of penalty u/s 271(1)(c) of the Act. 2. The appellant prays for the following relief The order of the ld. CIT(A) confirming the levy of penalty may kindly be quashed. 3. Brief facts of the case as gathered from the records available are that the appeal is against levy of penalty of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the ACIT, CC-1 and held that the AO was justified in levying the penalty by of giving following finding :- 4. I have considered the facts and the submissions. I do not agree with the appellant s view. It is a fact that the appellant has made investment in Om Surya Project which was detected in the search proceedings at the premises of Mahendra Kataria and post search enquiries. Further the appellant himself admitted the undisclosed investment in Om Surya Project, in his statement recorded on oath u/s 131 of the Act on 10.1.2007. However the appellant has not disclosed this investment in the books of accounts and also not disclosed the income for this undisclosed investment while filing original return of income on 16.3.2006 at ₹ 2,38,538/-. Even when the AO issued notice u/s 153C, the appellant filed return in its compliance on 8.11.2007, but the correct income showing the entire investment was not disclosed. The appellant disclosed the income of ₹ 8,00,000/- for this investment only in the return filed on 20.10.2008 after detection of the concealment of income corresponding to this undisclosed investment made and issue of notice u/s 153C, 143(2) and detailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (B) (1) The assessee has offered additional income of ₹ 8,00,000/- ₹ 16,15,000/- for AY 2004-05 2005-06 respectively, through his revised returns of income during the course of scrutiny assessment proceedings. (2) It is also undisputed fact on record that the revised return of income so filed has been accepted by the AO and the assessments for both the years have been framed on the returned income as such. In the assessment order, there is no allegation to show that the disclosure made by the assessee was on account of discrepancy, concealment etc; detected by the Department during the course of scrutiny. Eventually, no addition/disallowance has been made by the AO while framing the assessment and, therefore, there can be no allegation at all, of concealment of income. (3) However, the AO, without placing on record any material or evidence to discharge his burden of proof of concealment, has simply rested his conclusion on the voluntary surrender done by the assessee, in good faith. (4) The ld. CIT(A) has grossly erred in sustaining the penalty, without giving his own independent finding and in total disregard to the factual legal aspect as well as pec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 153(a) of the I.T. Act is to be considered as return filed under section 139 of the Act, as the Assessing Officer has made assessment on the said return and therefore, the return is to be considered for the purpose of penalty under section 271(1)(c) of the I.T. Act and the penalty is to be levied on the income assessed over and above the income returned under section 153A, if any. 14. Further, in the present case, it appears from the record that the assessee had satisfied all the conditions which are required for claiming immunity from payment of penalty under section 271(1)(c) of the Act. The provision does not specify any time limit during which the aforesaid amount i.e. the amount of penalty with interest has to be paid. Admittedly when the assessment herein have paid the entire amount with interest, the Assessing Officer ought to have granted them immunity available under section 271(1)(c) of the Income-tax Act. 15. The decision relied upon by ld. advocate for the respondent will not apply to the facts of the present case. 16. In view of the aforesaid facts of the case and also the principle laid down in the decisions relied upon by the learned senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3A on 8.11.2007 showing total income of ₹ 2,38,538/-. Before the completion of assessment proceedings the assessee revised the return under section 139(5) on 20.10.2008 declaring income at ₹ 10,38,538/- including additional income of ₹ 8,00,000/- for undisclosed investment. Here we would like again to mention that assessee has already surrendered the unaccounted income of ₹ 8,00,000/- in his statement recorded before the tax authorities and as the assessee was having the right to revise the return as provided in section 139, he, therefore, revised the income before the completion of assessment because section 139(5) says that if any person, having furnished a return under sub-section (1) or in pursuance of a notice issued under sub-section (1) of section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevance assessment year or before the completion of the assessment, whichever is earlier. Provided that . 11. In the case of assessee the return under section 153A was furnished on 8.11.2007 and thereafter it was revised on 20.10.2008 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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