9911796707
TMI Blog2019 (6) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... ial premises of the directors of the appellant company subsequent to which returns were filed by the assessee u/s 153A fo the act with total income of Rs. 36,79,88,163/- dated 31.10.2011. The return was later revised at total income of Rs. 33,64,88,160/-. The assessment was made by the AO u/s 143(3) r.w.s. 153A of the Act by order dated 30.12.2011. The assessment was made at the total income of the assessee as per return i.e. Rs. 33,64,88,160/-. Penalty proceedings were initiated by the AO u/s 271(1)(c) while completing the assessment u/s 143(3) r.w.s. 153A. Order of penalty was made dated 18.06.2012 levying penalty of Rs. 73,00,000/-. The AO treated the amount of Rs. 2,42,13,619/- as the concealed income and computed the penalty accordingly. In the penalty proceedings, the AO dealt with issues of addition in quantum proceedings as under:- Issue of payments to bogus sub-contractors- At the time of search and assessment proceedings it was found that the assessee had claimed following expenditure in its P/L account during the year on account of bogus subcontract payments to following parties- I) Siva Construction- Rs. 1,17,74,454/- ii) Krat Engineering- Rs. 3,00,000/- It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as unexplained income of the assessee for the F. Y 2007-08 The total amount paid as per the power of attorneys listed in enclosed is Rs. 1,49,89,325/- out of which Rs. 46,00,000 was paid from the books of Shri R. M. Gutte (copy of account of Gangakhed land in the books of R. M. Gutte is enclosed). Out of the balance Rs. 1,03,08,925/-(Rs. 1,49,89,325 - 46,007000) an amount of Rs. 5691141/-is paid out of the unaccounted income surrendered in respect of SIVA Construction and the balance amount i.e. Rs. 46,98184/- is unaccounted in the books of the SHEL for the F. Y 2007-08 and is surrendered as undisclosed income for the F. Y 2007- 08. Accordingly the assessee revised its return of income and surrendered its income as stated. Penalty proceedings were initiated u/s 271(1)(c) of the Act for concealment of income of Rs. 1,07,89,165/- (Rs. 4,80,240/- + Rs. 1,03,08,925/-). In its reply dated 13-06-2012 to the penalty show-cause on the issues discussed above the assessee stated as follows- 2. During the course of search proceedings the assessee has filed a declaration u/s 132(4) on 07.10.2009 declaring total unaccounted income for the search period at Rs. 50.00 crores to cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . iii) The declaration of Rs. 5 crores made at the time of search for the relevant year, has no relevance as the assessee revised its return and made disclosure of income on the basis of various issues raised at the time of assessment proceedings. iv) The assessee revised its return and made disclosure of income only when the concealment was detected at the time of assessment proceedings, on the basis of incriminating seized material. It is well-settled that revised return after detection of concealed income offers no immunity from penalty. Hence, it is a clear case of concealment of income and penalty is ought to be levied on the assessee. Based on the above facts and arguments I am satisfied that the assessee has concealed its income amounting to Rs. 2,42,13,619/- and penalty needs to be levied upon the assessee u/s 271(1)(c) of the I.T. Act." 4. Against above order, assessee appealed before the Ld. CIT(A). The Ld. CIT(A) referred to assessee's submissions. He observed as under:- "The order of penalty of the AO dated 18.06.2012 and assessee's arguments during hearing as well as assessee's submissions have been considered. It is a fact that the assessee has made decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everal case laws including apex court decision in the case of S.C. Mittal. 9. We have carefully considered the submissions and perused the records. We note that Assessing Officer in the penalty order and the assessment order has clearly given a finding that assessee had agreed for the impugned additions only when assessee was confronted with the incriminating materials by the assessing officer during the course of assessment. Furthermore as regards the assessee's claim of aforesaid income under a statement under section 132(4) is concerned we note that nothing is on the records as to when pursuant to the said admission taxes were paid by the assessee or in which return filed the said disclosure was made. We find that provisions of law under section 271(1)(c) for search conducted is contained in Explanation 5 & Explanation 5A to that section. We note that Ld. CIT(A) in his appellate order has not dealt with the concerned section. He has also not dealt with the Assessing Officer's observation that the offer of income was not voluntarily. We also note that Ld. CIT(A) has not dealt with as to when assessee paid the taxes in accordance with his offered under section 132(4) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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