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TMI Blog2020 (2) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... deleted. 3] On the facts and in the prevailing circumstances of the case and in law the learned CIT(A) has grossly erred in confirming the penalty imposed by A.O without having jurisdiction to him to imposed such penalty on enhanced income to Rs. 32,13,100/-, hence, it is bad in law and it may please be deleted. 4] On the facts and in the prevailing circumstances of the case, the learned CIT(A) has grossly erred in confirming the penalty u/s.271 (1)(c) of the I T Act, even though A.O has not given any clear finding , as to whether it is imposed for "furnishing inaccurate particulars of income", or " for concealment of income" and hence, in absence of clear finding, penalty imposed cannot be sustained and it is bad in law ab initio. Thus, penalty may please be deleted. 5] The Appellant craves the permission to add, amend, modify, alter, revise, substitute, delete any or all grounds of the appeal, if deemed necessary at the time of hearing of the appeal." 3. Briefly stated the relevant facts include that the assessee is in the status of HUF and earned income from unexplained deposits and interest thereon. The assessee filed the return of income declaring total income of Rs. 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in assessee's own case vide ITA No.1427/PUN/2011 dated 05.09.2019. In this regard, ld. AR brought our attention to the contents of para 4 and 5 of the order of the Tribunal (supra) for demonstrating the reasons for granting relief to the assessee. The ld. AR for the assessee further mentioned that the Tribunal granted relief to the assessee on the issue of penalties giving the reason that the penalty does not survive when the quantum addition is deleted. Thus, the ld. AR fairly mentioned that the Tribunal may take a view on the issue of penalty u/s 271(1)(c) of the Act and prayed for reversing the order of the lower authorities. 7. On the other hand, ld. DR for the Revenue relied heavily on the orders of the Assessing Officer and the CIT(A). Otherwise, ld. DR fairly admitted that if the quantum addition is deleted at the level of the Tribunal or the CIT(A) the impugned penalty does not survive. 8. We have heard both the sides and perused the orders of the revenue authorities and the decision of the Tribunal in assessee's own case (supra). We have also gone through the contents of para 4 and 5 of the order of the Tribunal in assessee's own case (supra) and find it relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant in this regard. 8. The ld. DR for the Revenue, on the other hand, relied heavily on the orders of the Assessing Officer and the CIT(A). 9. On hearing both the sides on this issue, I find the contents of para 7 to 11 of the order of the Tribunal (supra) are relevant to extract. For the sake of completeness of this order, the said para 7 to 11 of the order of the Tribunal (supra) are extracted hereunder :- "7. Briefly, in the facts of the case, the assessee had furnished return of income in time which was processed under section 143(1) of the Act. The Assessing Officer in the case, had received information from the Office of the Deputy Director of Income Tax (Inv), Unit - II(1), Pune vide letter dated 30.03.2013. Based on the above said information, the Assessing Officer made proposal for initiating proceedings under section 147 of the Act. Information in this regard was received from the Addl.CIT, Range-8, Pune vide letter dated 30.03.2013. The Assessing Officer thereafter, issued notice under section 148 of the Act, dated 30.03.2013. The reasons recorded by the Assessing Officer for issue of notice under section 148 of the Act are reproduced at pages 2 to 8 of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be forwarded to the Assessing Officer in-charge of the person other than the person searched. The proceedings have to be initiated against such person on the basis of such document found and impounded. Section 153C of the Act very clearly provided that where the conditions as mentioned in the said section prevail, then provisions of said section have to be applied notwithstanding anything contained in sections 139, 147, 148, 149, 151 and 153 of the Act. The requirement of section 153C of the Act is the first satisfaction of Assessing Officer that any money, bullion, jewellery or other valuable article or thing or books of account or documents or assets belongs to a person other than the person referred in section 153A of the Act, then the books of account or documents or assets seized or requisitioned, shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against such other person and issue notice of assessment or re-assessment of the income of other person in accordance with provisions of section 153A of the Act. The Assessing Officer has to record satisfaction that books of account or assets seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of section 153A: Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A in the second proviso to sub-section (1) of section 153A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person. ..... (2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the Assessing Officer having jurisdiction over such other person after the due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year- (a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or (b) a return of income has been furnished by such oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of which, additional income was to be assessed in the hands of partnership firm i.e. one of the assessees before us, then for making aforesaid addition, recourse which was open to the Assessing Officer was to initiate proceedings under section 153C of the Act. Where the provisions of said section are to be applied, then no proceedings can be initiated under section 147, 148, 151 and 153 of the Act. Accordingly, we hold that when during the course of search under section 132 of the Act at the residence of Mrs. Vasundhara S. Joshi and Shri Shailesh Joshi, loose paper bundle Nos.6, 7, 8 and 9 were found, which depicted the receipts and expenditure relating to different outlets being run under the partnership firms and the additional income was also offered by the persons searched on behalf of partnership firms, in which he was partner, on the basis of such documents found during the course of search, then for making addition in the hands of partners, provisions of section 153C of the Act are attracted. Once the said provisions are so attracted, then there is no question of initiating any proceedings under section 147 / 148 of the Act. Accordingly, we hold that proceedings i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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