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TMI Blog2020 (2) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... ted above, the additional income offered by assessee in his return of income has been accepted by Assessing Officer. The fact of concealment of income and furnishing inaccurate particulars of income can be established with reference to the income declared in the return of income. In the present case, the income declared in the return of income has been accepted; therefore, it cannot be the case of concealment or furnishing inaccurate particulars of income. In our view there is no occasion for the assessee to evade the tax as the assessee offered the additional income declared during the survey action while filing the return in response to the notice under section 153C. When the income declared in the return of income was accepted without any variance. The assessee has neither concealed the income nor furnished any inaccurate particulars of income while filing return of income - Appeal of the assessee is allowed. - ITA No. 1305/Mum/2017 - - - Dated:- 14-1-2020 - SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI S. RIFAUR REHMAN, ACCOUNTANT MEMBER Appellant by : Shri A.K. Ghosh (AR) Respondent by : Shri V. Vinod Kumar (Sr. DR) PER PAWAN SINGH, JUDICIAL MEMBER; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the present appeal before this Tribunal by raising the following grounds of appeal: 1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in passing ex-parte order without affording reasonable opportunity of hearing. 2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the penalty of ₹ 5,09,850/- levied by the AO u/s 271(1)(c) despite the fact that the Ld. AO neither in the show cause notice nor in the assessment order specified under which charge he is contemplating to levy penalty. 2. We have heard the submission of ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the revenue and perused the material available on record. At the outset of hearing, the ld. AR of the assessee submits that he is not pressing the Ground No.1. Considering the submission of ld. AR of the assessee, Ground No.1 which relates to denial of reasonable opportunity by ld. CIT(A) is dismissed as not pressed. 3. Ground No.2 relates to levy of penalty under section 271(1)(c). the ld AR for the assessee submits that a regular assessment order unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable in the present case. In support of his submission, the ld. AR of the assessee relied upon the decision of Tribunal in Samson Perincherry vs. ACIT in ITA No. 4625 to 4630/M/2013 dated 11.10.2013, which is affirmed by Hon ble jurisdictional High Court in CIT vs. Samson Perincherry ITA Nos.1154, 953, 1097 and 1226 of 2014 dated 05.01.2017. 4. On the other hand, the ld. DR for the revenue supported the order of lower authorities. The ld. DR for the revenue submits that during the survey action, a diary was impounded which contains incriminating evidence with regard to certain unaccounted receipt and payment of money. The assessee was confronted with regard to the contents mentioned on page no. 183 of said diary. The assessee admitted in his statement recorded under section 131 on 27.04.2012 about unaccounted cash of ₹ 15 Lacs. The said cash transaction were not recorded in the books of account nor disclosed by assessee in original return of income. The assessee is not eligible in any leverage or any leniency. The assessee has not challenged the validity of notice under section 153C and has accepted by filing return of income. The assessee now cannot challenged th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except narration by assessing officer in the assessment order. Rather, the statements recorded by Investigating Team itself clearly suggest that the case of assessee was covered by survey action only. 7. The Assessing Officer while passing the assessment order invoked the provision of Explanation 5A of section 271(1)( c) specifically deals with the search initiated under section 132 and not for survey action under section 133A. 8. We have further noted that before passing the order, the Assessing Officer issued notice under section 274 r.w.s 271(1)(c) dated 27.03.2013 and again on 04.09.2014. The Assessing Officer recorded that assessee filed his reply in response to the show cause notice. The Assessing Officer in his order has not mentioned the contents of reply in response to notice. The Assessing Officer simply recorded that the statement of assessee was considered but not found acceptable on the ground that (i) during the search, the assessee admitted unexplained money, (ii) the assessee has not approached the appellate authority, (iii) the assessee furnished inaccurate particulars, (iv) the case of assessee is covered by Explanation 5A and (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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