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TMI Blog2017 (2) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had concealed the income or filed inaccurate particulars before the AO. - Decided in favour of assessee - ITA No. 1007/Hyd/2016 - - - Dated:- 10-2-2017 - SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER For The Assessee : Shri Samuel Nagadesi For The Revenue : Shri A. Sitarama Rao ORDER PER S. RIFAUR RAHMAN, A.M.: This appeal filed by the assessee is directed against the order of CIT(A) - 3, Hyderabad, dated 06/05/2016 for AY 2009-10. 2. Briefly the facts of the case are that the assessee is a doctor running nursing home under the name and style, M/s Laxmi Nursing Home at Mahabubabad, Warangal. There was a survey u/s 133A on 17/11/2009. In-patient, Out-patient, Ultrasound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the said notice, the assessee, vide his letter dated 01/06/2012 stated that in the survey proceedings conducted on 17/11/2009, as per the statement recorded by the Department, no material other than the regular records maintained were traced. But the assessee has declared the additional income of ₹ 15,00,000/- to have peace with the department and paid the taxes immediately. 4. At this stage, it is worth to note that the survey was conducted in the premises of assessee on 17/11/2009. The assessee has filed the return of income on 26/03/2010 within a period of limitation u/s 139(4). The same was accepted and assessment u/s 143(3) of the Act was completed on the income declared by the assessee during the survey proceedings. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see subsequent to the survey cannot be considered as a voluntary disclosure. He relied on the decision of the Hon ble Supreme Court in the case of Mac Data (P) Ltd. Vs. CIT, [2013] 358 ITR 573. 8. Still aggrieved, the assessee is in appeal before us raising the following grounds of appeal: 1. On the facts and in the circumstances of the case, the order of the learned Commissioner of income Tax (Appeals) erroneous in law and facts of the case. 2. On the facts and in the circumstances of the case the learned Commissioner (Appeals) is erred in law and facts of the case in upholding the order of the Assessing Officer levying penalty under Section 271(1)(c) of the Income-tax Act, 1961. 3. On the facts and in the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly and paid the relevant taxes. He vehemently argued that assessee has voluntarily submitted the return of income and complied with the rules and, therefore, penalty cannot be levied. Alternatively, he submitted that a statement was recorded u/s 133A cannot be used against the assessee, for which he relied on the following case laws: 1. CIT Vs. Khader Khan Son, 300 ITR 157 (Mad.) 2. CIT Vs. Khader Khan Son,352 ITR 480 (SC) 3. Godavari Township Pvt. Ltd. Vs. CIT, 148 ITD 463 (Viz.) 4. CIT Vs. Suresh Chandra Mittal, 251 ITR 9 (SC) 10. Ld. DR, on the other hand, submitted that it is established that there was a suppression of income during the survey operation in the premises of the assessee. He submitted that assessee has no o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation similar to Explanation-5 was provided in the section to cover survey cases. Since, the income detected/offered in survey cannot be deemed to be concealed income , treating the same as concealed income as was done by A.O. does not arise. A.O. has to establish the nature of income as concealed income before levy of penalty. As discussed earlier, nothing was done by A.O. except accepting the revised income returned in the assessment proceedings under section 143(3) of the Act. 11.2 In the case of Suresh Chandra Mittal (supra), the Hon ble Supreme Court held that though the assessee surrendered additional income by way of revised returns after persistent queries by AO once the revised returns have been regularised by Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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