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TMI Blog2017 (9) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... return income, which was subject matter of assessment before assessing officer. The return filed by the appellant has been accepted as such by your assessing officer, without any variation. Therefore, in the absence of any undisclosed income being found in the assessment vis-a-vis the return filed, the issue of imposition of penalty does not, arise. Levy of penalty has to be as per law applicable on the date of filing of the return and admittedly on 03.03.2009 when the return of income for assessment year 2006- 07 was filed by the appellant, the unamended provisions of Explanation 5A to section 271(1)(c) of the Act were on the statute. The question whether there was concealment of income and/or furnishing inaccurate particulars thereof by the appellant in the return of income filed on the said date has to be seen vis-a-vis, law as applicable on that date. In that view of the matter, the amended provision of Explanation 5A made applicable w.r.e.f from 1.6.2007 cannot be pressed into service. In view of the aforesaid, the pre-substituted provisions of Explanation 5A to Section 271 would, therefore, apply in the present case of the appellant-company for the year under consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty u/s.271(1)(c) cannot be levied which is illegal and bad in law. The said issue was raised before the learned CIT(A) as well which pleadings of the assessee were rejected by the learned CIT(A). 5. I have heard the rival contentions and perused the facts of the case that once a return is filed pursuant to notice under section 153A, the same is treated as return filed under section 139 of the Act [refer clause (a) of section 153A91)]. Further, concealment/furnishing of inaccurate particulars of income/undisclosed income, has to be necessarily seen vis-a-vis return filed by the appellant, once, income itself is declared which is accepted as such under section 139 r.w.s. 153A of the Act, then, the question of there being concealment/furnishing of inaccurate particulars of income/undisclosed income, does not arise at all. In the present case, the entire undisclosed income has been offered for tax by the appellant in the return of income, which was subject matter of assessment before the Assessing Officer. The return filed by the appellant has been accepted as such by the learned Assessing Officer, without any variation. Therefore, in the absence of any undisclosed income being fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled under section 139 of the Act [refer clause (a) of section 153A(l)]. Further, concealment/ furnishing of inaccurate particulars of income/undisclosed income, has to be necessarily seen vis-a-vis return filed by the appellant Once, income it is declared which is accepted as such under section 139 r.w.s. 153A of Act, then, the question of there being concealment/ furnishing of inaccurate particulars of income/undisclosed income, does not arise at all. In the present case, the entire undisclosed income has been offered for tax by the appellant-company in the return income, which was subject matter of assessment before assessing officer. The return filed by the appellant has been accepted as such by your assessing officer, without any variation. Therefore, in the absence of any undisclosed income being found in the assessment vis-a-vis the return filed, the issue of imposition of penalty does not, arise. 5.3 The reliance is placed on the following decision in this regard. 1) It has been held in the decision of the Delhi Bench of the Tribunal in the case of Prem Arora vs. DCIT in (2012) 78 DTR (Del)(Trib)91 wherein the Tribunal held that where returned income filed u/s.153A i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied for assessment years 1985-86, 1986-87 and 1987-88 even though the revised returns were filed offering the additional income after search and in response to notice under section 148.of the Act issued by the Department? The Court answered the above question in the affirmative. The Court held that no penalty uls 271(1)(c) of the Act could be levied where the revised return had been accepted and assessed at the hands of the appellant although the revised returns had been filed after a search under section 132 of the Act and after a notice had been under section 148 of the Act. v) Rajiv Garg 175 Taxman 184 (P H) in the return filed in pursuance to notice under section 148 of the Act the appellant revised its claim one instead of offering for tax the amount of capital gain, he offered the entire sale proceeds as income. Such additional income offered was assessed to tax Therefore, the finally assessed income was the same as income declared by the appellant in the return filed in response to the notice issued under section 148 of the Act. The Court, while affirming the order of the Tribunal deleting penalty, observed that undeniably the notice under section 148 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 271(1) are rebuttable and does not, ispo facto, result in automatic imposition of penalty. In the present case, the fact that the entire 'undisclosed income' was declared by the appellant in the statement recorded during search and the same was also disclosed in the return filed pursuant to notice issued under section 153A, clearly goes to show the bona fides of the appellant, not warranting imposition of penalty under section 271 (1)(c) of the Act. 6. In the aforesaid circumstances, penalty levied u/s.271(1)(c) is directed to be quashed. Thus, all the grounds of the assessee are allowed. 7. In the result, the appeal of the assessee is allowed. 8. Now, we take up the appeal of Mr. Rajendra Bhandari in ITA No.5749/Del/2014, where the issue is identical except the quantum of the penalty and by following my order in the case of Mr. Alok Bhandari hereinabove, the order of the penalty confirmed by the learned CIT(A) is directed to be reversed and all the grounds of the assessee are allowed. Thus I am reversing the order of learned CIT(A) in both the appeals. 9. To sum up, both the appeals of the assessees are allowed. Order pronounced in the open court on thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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