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TMI Blog2018 (10) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... w, the penalty u/s 271(1)(c) was correctly levied by the authorities below. - Decided against assessee. - ITA No. 256/Rjt/2014 - - - Dated:- 15-10-2018 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER For The Assessee : Shri M. J. Ranpura, A.R. For The Revenue : Shri Praveen Verma, Sr. D. R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the assessee against the appellate order of the Learned Commissioner of Income-Tax (Appeals)-II, Rajkot [ CIT(A) in short] relevant to Assessment Year 2009-10. 2. Assessee has raised the following grounds of appeal:- 1.0 The grounds of appeal mentioned hereunder are without pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of hearing. Accordingly, the AO invoked the provision of Section 145(3) of the Act and estimated the profit @20% of its gross receipts. Thus, the AO worked out the profit of ₹ 59,49,656/- (20% of 2,97,48,281). Accordingly, the AO made the addition of ₹ 6,39,990/- (59,49,656-53,09,666) and added to the total income of the assessee. Accordingly, the AO completed the assessment proceedings u/s 143(3) r.w.s. 147 of the Act vide order dated 11.10.2011 at ₹ 59,49,656/-. The AO during the assessment proceedings initiated the penalty proceedings u/s 271(1)(c) of the Act on account of concealment of the particulars of income. 4.3 Subsequently, the AO issued notice u/s 274 of the Act dated 21.02.2012 for levying the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 6.4 I have carefully considered the submission of the appellant and the assessment as well as penalty order. There is no dispute as to facts. However, it is pertinent to mention here that the quantum appeal in this case against order u/s. 143(3) r.w.s. 147 has already been decided and the appeal order has been passed by the undersigned vide order in Appeal No.CIT(A)-II/Rjt/0188/11-12, dt. 20/2/2014. In this appeal order, the addition of ₹ 6,39,990/- made by the A.O. has been deleted. Thus, the income returned by the appellant in its return of income tiled in response to notice u/s.148 is now required to be considered for the levy of penalty. The first issue required to be answered is whether the penalty u/s.271(1)(c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation has progressed, the subject-matter of investigation by the department, and the evidence available in the course of such investigation. 10. If the aforesaid principles are applied to the facts of the case, it can safely be noted that the overall conduct of the assessee does not indicate that the revised returns were filed voluntarily and in good faith. In fact, the first disclosure on 20-10-1988 came in pursuance of the inquiries undertaken by DD1T (Inv,). Mumbai and after statement of Chairman and Managing Director in relation to the subject-matter of purchases being recorded on 21-9-1988. For assessment year 1985-86 the assessee, by its very conduct, acted contrary to its own stand of the revised return being voluntary when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted. The act of filing of the return in response to notice u/s. 148 cannot be said to be a voluntary action on part of the appellant. It goes without saying that had the appellant not filed this return and not offered this income, the addition was inevitable as it was very vividly demonstrated in the impounded books. This is a very clear case of concealment of particulars of income and the A.O. is justified in levying the penalty u/s.271(1)(c). The action of the A.O. is confirmed. 6.6 The issue is about the quantum of the income on which tax was sought to be evaded. The appellant had offered an income of ₹ 57,00,000/- in the return filed in response to notice u/s.148. The income returned in the original return of income was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has disclosed income of ₹ 53,09,666/-. Thus, in our considered view had there not been survey u/s 133A of the Act, the assessee would not have offered such undisclosed income. Therefore, in our considered view, the penalty u/s 127(1)(c) of the Act was correctly levied by the authorities below. In this regard, we also find support and guidance from the judgment of Hon ble Jurisdictional High Court in the case of L.M.L. Precision Engineering Ltd. Vs. DCIT reported in 330 ITR 93. The relevant extract of the order is already been reproduced hereinabove. Thus, we do not find any reason to disturb the finding of ld. CIT(A). Hence, the ground of appeal of the assessee is dismissed. 9. In the result, appeal of the assessee is dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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