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TMI Blog2018 (6) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... which was accepted by the AO and made the assessment accordingly - hence concealment of income or furnishing of inaccurate particulars of income does not arise in this case and hence, penalty levied u/s 271(1)(c) is hereby cancelled - Decided in favor of assessee. - ITA No. 1557/Hyd/2016 - - - Dated:- 13-6-2018 - Smt. P. Madhavi Devi, Judicial Member And Shri S. Rifaur Rahman, Accountant Member Assessee by : Shri A. Srinivas Revenue by : Smt. N. Swapna ORDER Per S. Rifaur Rahman, A. M. This appeal filed by the assessee is directed against the order dated 31/08/2016 of CIT(A) 11, Hyderabad for AY 2004-05 whereby he confirmed the penalty levied u/s 271(1)(c) of the Income-tax Act, 1961 (in short the Act ). 2. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 relevant to the A.Y. 2004-05. 3. During the assessment proceedings, AO issued notice u/s.271(1)(c) to the assessee on 27.12.2011. The assessee vide his reply dt.9.5.2012 had stated that he had admitted ₹ 3.4 lakhs in the statement made u/s.132(4) and declared the same in the return of income filed on 23.6.2010 in response to notice u/s.153A and paid taxes thereon. He further stated that he had neither concealed his income nor furnished inaccurate particulars within the meaning of sec.271(1)(c) of the I.T. Act. 4. After considering the submissions of the assessee, the AO levied a penalty of ₹ 1,28,527/- u/s 271(1)(c) by observing as under: 4. The contentions of the assessee have been perused and found no merit in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition of ₹ 3,40,000/- during the course of search seizure. He further submitted that the provisions of section 271(1)(c) of the Act will come into application only when there is concealment or when the assessee has furnished inaccurate particulars, as in the case of the assessee, the question of furnishing inaccurate particular is ruled out. Coming to the question of concealment, the ld.AR submitted that the assessee has voluntarily disclosed ₹ 3,40,000/- for addition at the time of search and hence for this reason there is no concealment of particulars from the point of view of the assessee. In this connection, the ld. AR relied on the decision of the ITAT, Mumbai in the case of Manorama V. Rathi in ITA No. 6063/Mum/2013 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curate particulars within the meaning of section 271(1)(c) of the Act. In this connection, we refer to the decision of the ITAT, Mumbai in the case of Manorama V. Rathi (supra), on which reliance placed by the assessee, wherein the coordinate bench has held as under: 20. Therefore, the position that emerges from the above-mentioned provision is that once the assessee files a revised return under Section 153A, for all other provisions of the Act, the revised return will be treated as the original return filed under Section 139. On similar lines, the Gujarat High Court in the case of Kirit Dahyabhai Patel v. Assistant Commissioner of Income Tax, (2015) 280 CTR (Guj) 216, held that: In view of specific provision of s. 153A of the I.T. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite to say that the concealment has to be seen with reference to the return that it is filed by the assessee. Thus, for the purpose of levying penalty under Section 271(1)(c), what has to be seen is whether there is any concealment in the return filed by the assessee under Section 153A, and not vis-a vis the original return under Section 139. Upon perusal of the ratio of the same, we find that imposition of penalty is not automatic and the same being penal in nature has to be construed strictly and should fall within the four corners of the statutory provisions. The 'concealment has to be in the return of income' filed by the assessee. Further, the provisions of Sections 153A, 153B and 153C are intended to be a complete code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is filed by the assessee. Thus, for the purpose of levying penalty under Section 271(1)(c), what has to be seen is whether there is any concealment in the return filed by the assessee under Section 153A, and not vis-a-vis the original return under Section 139. 9.2 In the given case, the assessee has voluntarily admitted the unexplained expenditure of ₹ 3.4 lakhs and declared the same in the revised return of income filed in response to the notice u/s 153A, which was accepted by the AO and made the assessment accordingly. Therefore, concealment of income or furnishing of inaccurate particulars of income does not arise in this case and hence, penalty levied u/s 271(1)(c) is hereby cancelled. 10. In the result, appeal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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