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TMI Blog2020 (1) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... overt the above findings of the authorities below. Accordingly, we do not see any good reason to interfere in the orders of both the authorities below and, hence, we uphold the same and dismiss both the appeals of the assessee for A.Y.2010-2011 2011-2012, respectively. Penalty u/s.271(1)(c) - AY 2012-2013 to 2015-2016 - HELD THAT:- AO in the assessment has initiated penalty u/s.271(1)(c) of the Act on the differential amount disclosed in the return of income filed u/s.153A of the Act by the assessee without mentioning either of the two limbs as provided under the provisions of Section 271(1)(c) of the Act i.e. for concealment of particulars of income or for furnishing of inaccurate particulars of such income. Thereafter in the penalty order dated 28.06.2018, also the AO while levying penalty u/s.271(1)(c) of the Act has used both the expression. AO is not sure on which count he intends to levy penalty as per the provisions of Section 271(1)(c) of the Act either for concealment of particulars of income or for furnishing of inaccurate particulars of such income. Both these situations are contradictory to each other. Neither the assessment order nor the penalty order nowhere s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 5,82,279/- and revised return was filed on 21.11.2017 disclosing total income of ₹ 6,45,586/-. Similarly, the assessee in pursuance to notice u/s.153A of the Act filed his return of income for the assessment year 2011-2012 on 16.02.2017 disclosing his total income at ₹ 7,11,720/- and revised return was filed on 21.11.2017 declaring total income at ₹ 7,91,720/-. During the course of assessment proceedings, the AO found that the assessee has disclosed additional income of ₹ 1,00,000/- under the head professional income as compared to the income disclosed in the return filed u/s.139(1) of the Act for A.Y.2010-2011 and ₹ 54,470/- for the assessment year 2011- 2012. During the course of assessment proceedings, ₹ 50,000/- was discovered from the bank statement as unexplained investment also. Accordingly, the AO completed the assessment u/s.153A of the Act assessing total income of the assessee at ₹ 6,95,590/- for the assessment year 2010-2011 and ₹ 7,91,720/- for assessment year 2011-20112. Consequently, the AO initiated penalty u/s.271(1)(c) of the Act and penalty order was passed on 28.06.2018 levying penalty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f both the parties and perusing the entire material available on record, we find that in consequence of search, the AO issued notice u/s.153A of the Act and in response to which the assessee filed his return on 16.02.2017 declosing total income of ₹ 5,82,279/- and subsequently it was revised on 21.11.2017 disclosing total income of ₹ 6,45,586/- for A.Y.2010-2011 and ₹ 7,91,720/- for A.Y.2011-2012. During the course of assessment proceedings, the AO found that the assessee has disclosed additional income of ₹ 1,00,000/- under the head professional income and ₹ 50,000/- as unexplained investment as compared to the income disclosed in the return filed u/s.139(1) of the Act for A.Y.2010-2011 and ₹ 54,470/- for the assessment year 2011-2012. It was also noted by the AO that the assessee could not disclose the said additional income u/s.139(1) of the Act, against which the AO initiated penalty proceedings u/s.271(1)(c) of the Act for concealment of particulars of income. In the appellate proceedings the CIT(A) observed that had there been no search, the additional income would not have been disclosed by the assessee. In this case, the date of search wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ife Smt. Ranjita Jena in the name of Jena Jena Nursing Home and filed his original return of income on 21.09.2012 for the assessment year 2012-2013 disclosing total income at ₹ 7,43,880/-. A search and seizure action u/s.132 of the Act was conducted against the assessee on 03.09.2015 in Cuttack Hospitals (P) Limited and group of cases and residential premises of the above assessee. In consequence to that search, the AO issued notice u/s.153A of the Act and in pursuance to the same the assessee filed his return of income on 16.02.2017 disclosing total income of ₹ 8,74,000/- . During the course of assessment proceedings, the AO found that the assessee has disclosed his income of ₹ 8,74,000/- in the return filed u/s.153A of the Act, whereas the assessee has shown total income in the return filed u/s.139(1) of the Act at ₹ 7,43,880/-. Therefore, the AO added the differential amount of ₹ 1,30,120/- to the total income of the assessee as undisclosed income as the assessee failed to disclose the income before the proceedings u/s.153A of the Act and completed the assessment u/s.153A of the Act determining total income of the assessee at ₹ 8,74,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain/short term capital gain was not disclosed earlier. Accordingly, ld. DR submitted that the penalty imposed by the AO and confirmed by the CIT(A) deserves to be upheld for the both the assessment years under appeals. 17. After considering the submissions of both the sides and perusing the entire material available on record, we find that the AO in the assessment has initiated penalty u/s.271(1)(c) of the Act on the differential amount disclosed in the return of income filed u/s.153A of the Act by the assessee without mentioning either of the two limbs as provided under the provisions of Section 271(1)(c) of the Act i.e. for concealment of particulars of income or for furnishing of inaccurate particulars of such income. Thereafter in the penalty order dated 28.06.2018, also the AO while levying penalty u/s.271(1)(c) of the Act has used both the expression. For more clarification, we would like to reproduce the relevant observations made by the AO for A.Y.2012-2013 while passing the penalty order as under :- Under the provisions of section 271(l)(c) of the Income Tax Act, 1961, if the Assessing Officer in the course of any proceedings under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vitiated and, therefore, is not sustainable. In this regard, we would like to place reliance on the decision of Hon ble Gujarat High Court in the case of Snita Transport Pvt. Ltd., 42 taxmann.com 54, wherein it is held that while passing final order, the AO has to record a specific finding accepting the fact that penalty is being imposed for concealment of particulars of income or for furnishing of inaccurate particulars of such income. The relevant observations of the Hon ble Gujarat High Court at para 9 read as under:- 9. Regarding the contention that the Assessing Officer was ambivalent regarding under which head the penalty was being imposed namely for concealing the particulars of income or furnishing inaccurate particulars, we may record that though in the assessment order the Assessing Officer did order initiation of penalty on both counts, in the ultimate order of penalty that he passed, he clearly held that levy of penalty is sustained in view of the fact that the assessee had concealed the particulars of income. Thus insofar as final order of penalty was concerned, the Assessing Officer was clear and penalty was imposed for concealing particulars of inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income. As is held in the case of Neeraj Jindal (supra) and other cases relied upon by the assessee, the return of income filed pursuant to the notice u/s 153A takes the place of the return filed u/s 139(1) which was validly revised by the assessee even before any defect was pointed out by the learned AO. In such circumstances, in view of the decision in the case of CIT vs Reliance Petro Products P. Ltd. (2010) 322 ITR 158 (SC), no penalty could be levied. 16. Lastly, when the revised return is accepted and the income is assessed as per the revised income, there is no scope for penalty. In the case of Kirit Dahyabhai Patel vs ACIT, (2017) 80 Taxmann.com 162 (Guj), the Hon'ble High Court held that in view of specific provision of Section 153A, the return of income filed in response to notice u/s 153A is to be considered as return filed u/s 139, as the AO has made assessment on the said return and, therefore, the return has to be considered for the purpose of penalty u/s 271(1)(c) of the Act and the penalty is to be levied on the income assessed over and above the income returned u/s 153A, if any. Admittedly, in this matter both the returned income and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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