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TMI Blog2018 (12) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... correct particulars of income. In the case of assessee, it is not salary which was not declared but it was business receipts of assessee on which TDS was deducted and total receipts were not taxable in the hands of assessee. The claim of assessee was as per Income & Expenditure Account which needs to be verified and then net income was to be added in the hands of assessee. In such circumstances, it cannot be said to be a case of inadvertency. - Decided against assessee. - ITA No.1327/PUN/2016 - - - Dated:- 26-11-2018 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For The Appellant : Shri Suhas P. Bora For The Respondent : Shri Sanjeev Ghei ORDER PER SUSHMA CHOWLA, JM: The appeal filed by assessee is against order of CIT(A)-2, Pune, dated 22.02.2016 relating to assessment year 2011-12 against levy of penalty under section 271(1)(c) of the Income-tax Act, 1961 (in short the Act ). 2. The assessee has raised the following grounds of appeal:- On facts and in law 1. The ld CIT(A) has erred in confirming penalty of ₹ 4,39,162/- levied u/s 271(1)(c) by the AO without appreciating the facts of the case and submissions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Authorized Representative for the assessee further stated that the books of account have been maintained and the assessee has prepared Profit and Loss Account and offered ₹ 14,55,987/- as profit from business profession. The assessee had not shown the business income in the return of income and hence, the same was added to total income of assessee as concealed income from business profession, to which the learned Authorized Representative for the assessee agreed. Penalty proceedings under section 271(1)(c) of the Act were initiated for concealing the particulars of income. Further, the Assessing Officer also noted that the assessee had failed to declare income from interest and dividend of ₹ 57,673/- in his return of income. Hence, the same was also added and penalty proceedings were initiated for concealing the particulars of income. The assessee had further sold plot at Savedi during the year under consideration and worked out the short term capital gains at ₹ 10,800/-. However, the working submitted by assessee was not correct and the short term capital gain was worked out at ₹ 39,150/-. The assessee had also not shown the short term capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Supreme Court in the case of MAK Data (P.) Ltd. Vs. CIT reported in 358 ITR 593 (SC) in this regard and penalty levied was upheld in the hands of assessee. 6. The assessee is in appeal against the order of CIT(A) and pointed out that income from business, short term capital gain and interest on dividend as well as TDS on the same was remained to be disclosed in the return of income. He further stated that as against total income declared in the return of income at ₹ 4,52,637/-, the Assessing Officer had assessed the income at ₹ 20,05,450/- and once the credit for TDS was allowed, then no further tax had to be paid by assessee. The learned Authorized Representative for the assessee pleaded that the income from business which was earned in earlier year also was not shown in the return of income but was shown in the revised computation filed during the course of assessment, in which the assessee makes claim of TDS at ₹ 6,43,191/-, which was not claimed in the original return of income. After the adjustment of TDS, refund was due to the assessee, hence it was not case where the assessee had defaulted in payment of tax. The next plea of assessee before us was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of income, the assessee had declared gross income of ₹ 16,02,200/-. The assessee has also attached Profit and Loss Account of M/s. Classic Advertising i.e. the concern in which the assessee was earning commission and incentive to the tune of ₹ 25,26,716/- and advertising receipts of ₹ 14,22,530/-. The assessee has worked out the net profit after expenditure at ₹ 11,69,941/-. The assessee was also preparing Balance Sheet and has filed copy of the same along with Annexures. The declaration of gross total income of ₹ 16 lakhs is apparently on account of business income of about ₹ 11.70 lakhs and salary of about ₹ 5 lakhs. The assessee has not filed any computation of income and hence, we are not clear about exact income declared under each head. 10. Now, let us look at the return of income filed for assessment year 2011-12, which is placed at pages 15 and 16 of Paper Book. The assessee has filed computation of income and only has declared salary income from Classic Publicity Pvt. Ltd. at ₹ 5,60,000/-. The assessee has not declared any income from business of proprietary concern, which admittedly, he was carrying on during the year u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings and when confronted with the details of Form No.26AS by Assessing Officer, the assessee claims that he has declared income; it cannot be said to be declaration of income by the assessee voluntarily. The onus was on the assessee to declare the said income in the return of income or may be in the revised return of income within stipulated time. The declaration, if any, made during the course of assessment proceedings, once the proceedings have been commenced and the assessee is confronted with the details in Form No.26AS statement, then such a declaration cannot be said to be voluntary and cannot discharge the assessee from his onus. We find no merit in the plea of assessee in this regard. He has time and again pointed out that it was by an inadvertent mistake the said income was not declared but keeping in mind the declaration of assessee in assessment year 2010-11 and when compared to the declaration of income in assessment year 2011-12, it is not case wherein the business income has arisen for the first time. Similar income was being carried on in earlier years, even receipts were similarly earned and the assessee had declared the business income in earlier years, then no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , so the plea of inadvertency could not be rejected. This is the case where the employer had deducted tax from salary and the said deduction is on the prevalent market rates. However, in the case of assessee, it is not salary which was not declared but it was business receipts of assessee on which TDS was deducted and total receipts were not taxable in the hands of assessee. The claim of assessee was as per Income Expenditure Account which needs to be verified and then net income was to be added in the hands of assessee. In such circumstances, it cannot be said to be a case of inadvertency. 15. Similar is the ratio laid down in other decisions of Calcutta Bench of Tribunal in Anandmoy Bhattacharjee Vs. ITO (supra), which is also case of salary income being covered by TDS deduction and the Pune Bench of Tribunal in ITO Vs. Smt. Madhuri Satish Misal (supra), wherein also it was case of TDS out of interest earned on fixed deposits. Another point to be noted in the decision of Pune Bench of Tribunal is that addition was made in the hands of assessee on account of transaction of assessee s husband and she agreed to the addition, hence it was held that it is not case of concealment. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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