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TMI Blog2018 (9) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... eta Mittal, ACA ORDER PER T. S. KAPOOR, A.M. This is an appeal filed by the Revenue against the order of CIT(A)-II, Lucknow dated 21/03/2017. The only issue involved in this appeal is the action of the learned CIT(A) by which he has deleted the penalty which the Assessing Officer had imposed u/s 271(1)(c) of the Act. 2. At the outset, Learned D. R. submitted that the Assessing Officer had rightly imposed the penalty which learned CIT(A) has wrongly deleted as the revised return was filed only after incriminating documents were found during the course of survey and therefore, there was concealment of income in the original return and had there been no survey, the income of the assessee would have been short assessed to that extent and therefore, the Assessing Officer had rightly imposed the penalty. 3. Learned A. R., on the other hand, submitted that after the filing of return of income a survey took place u/s 133A of the Act and certain incriminating documents showing payments of ₹ 77,42,720/- were found and thereafter the assessee surrendered such payment and offered the same in the form of revised return and the assessment was completed u/s 143(3) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 98,89,870/- on 11.09.2013 within the time allowed as per provisions contained in Section 139(1) of the Act. Thereafter a survey under section 133A of the Act was carried out on 10.03.2015. During the course of the said survey certain incriminating documents were found, on the basis of which the appellant made an offer for surrender of ₹ 77,42,720/-. The appellant filed a revised return of income on 31.03.2015 in which the amount of ₹ 77,42,720/- was offered as additional income and total income of ₹ 1,66,89,870/- was shown. The surrendered amount was accepted in the assessment order passed under section 143(3) of the Act. The revised return of income filed on 31.03.2015 is within the time allowed under section 139(5) of the Act. The issue therefore is whether the penalty under section 271(l)(c) of the Act is leviable on the amount surrendered on survey was shown in the return of income. 7(2)(i) Hon'ble ITAT, Banglore in the case of Muninaga Reddy Vs ACIT (2013) 37 Taxmann.com 440 (Banglore - Trib) has examined the issue. The head note read as under- Section 271(1)(c) of the Income-tax Act, 1961 - Penalty - For concealment of income [Survey, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt that the survey was conducted more than 10 months before the assessee filed its return of income. Had it been the intention of the assessee to make full and true disclosure of its income, it would have filed the return declaring an income inclusive of the amount which was surrendered later during the course of the assessment proceedings. Consequently, it is clear that the assessee had no intention to declare its true income. In the present case, the assessee has included the amount into the return of income, therefore, in our considered view, the assessee cannot be held guilty of concealing the particulars of income. The Coordinate Bench of the Tribunal (ITAT A Bench Ahmedabad) in ITA No.1960/Ahd/2011 for AY 2006-07 in the case of ITO vs. Shri Valibhai Khanbhai Mankad, vide its order dated 27/02/2015 has confirmed the view of the Id.CIT(A) by observing as under:- 6........ The ld. CIT(A) has followed the decision of this Bench of the Tribunal rendered in the case of DOT Vs. Dr. Satish B Gupta (42 SOT 48)(Ahd). Ld. CIT-DR has contended that the CIT(A) failed to appreciate the fact that the additional income amounting to ₹ 41,73,000/- was declared in consequence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that concealment of particulars of income or furnishing of inaccurate particular of income by the assessee has to be in the IT return filed by it. The assessee can furnish the particulars of income in his return and everything would depend upon the IT return filed by the assessee. This view gets supported by Explanations 4 as well as 5 and 5A of s. 271. Obviously, no penalty can be imposed unless the conditions stipulated in the said provisions are duly and unambiguously satisfied. Since the assessee was exposed during survey, may be, it would have not disclosed the income but for the said survey. However, there cannot be any penalty only on surmises, conjectures and possibilities. Sec. 271(1)(c) has to be construed strictly. Unless it is found that there is actually a concealment or nondisclosure of the particulars of income penalty cannot be imposed. There is no such concealment or nondisclosure as the assessee had made a complete disclosure in the IT return and offered the surrendered amount for the purposes of tax. 15. For the reasons given above we hold that there can be no justification for imposition of penalty on the income offered in the return of income by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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