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TMI Blog2020 (7) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... ther with compliance of other conditions submitted in Clause-2 of Explanation-5 to Section 271(1)(c) of the Act which provides immunity to the assessee from levy of penalty. By this, the penalty levied for all the assessment years in the total sum is deleted. In respect of penalty on additions made during the course of assessments framed u/s.153A of the Act for three assessment years i.e. A.Yrs 2001-02, 2003-04 and 2007-08, we hold that the same is deleted for recording improper satisfaction on the part of the ld. AO by not mentioning the specific offence committed by the assessee in the quantum assessment order and also for initiating penalty on one limb and levying penalty on the other limb of the alleged offence. By this, the penalty lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was a search u/s.132 of the Act in the case of Shri Jayant B Patel and persons connected with him on 10/01/2007 in the premises of Cliffton society, Juhu. Pursuant to the search, notices u/s.153A of the Act were issued to the assessee for all the assessments years commencing from A.Y.2001-02 onwards. It is not in dispute that at the time of search, certain dairies numbered as A-1 to A-6 in the panchanama dated 10/01/2007 were found which admittedly contained certain transactions of undisclosed income. The assessee during the course of search had given a declaration statement u/s.132(4) of the Act accepting to the contents of the dairies and the related undisclosed income reflected thereon by duly substantiating the manner in which su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty could at all be levied in the total sums of ₹ 17,39,035/- as detailed in the aforesaid table for the A.Yrs. 2001-02 to 2006-07 since the same represents the income disclosed by the assessee in the returns filed u/s.153A of the Act, which would be eligible for immunity in terms of Clause-2 of Explanation-5 of Section 271(1)(c) of the Act. Hence, we are in agreement with the argument advanced by the ld. AR that no penalty at all could be initiated in respect of the said sums disclosed by the assessee in the returns filed u/s.153A of the Act. 3.2. The remaining penalty of ₹ 3,03,339/- are levied as under:- A.Y.2001-02 - ₹ 1,67,407/- A.Y.2003-04 - ₹ 16,322/- A.Y.2007-08 - ₹ 1,19,610/- Total ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is penalty order dated 31/07/2017 had mentioned in bold letters by supplying more emphasis thereon that the aforesaid three items would constitute undisclosed income of the assessee eligible for levy of penalty for furnishing inaccurate particulars of income (underlining and emphasis provided by us). 3.7. But we find that the ld. AO in para 12 of his penalty order had mentioned that the penalty is levied for both concealment of income as well as furnishing of inaccurate particulars of income by the assessee and accordingly, levied penalty of ₹ 4,79,306/- for the A.Y.2001-02. The break-up of the said penalty is as under:- Penalty for income disclosed in the return filed u/s.153A of the Act - ₹ 3,11,899/- Penalty for additions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee as to whether the assessee has concealed the particulars of his income or has furnished inaccurate particulars of his income. The divergent stand taken at the time of recording satisfaction in the assessment proceedings and at the time of framing of penalty order is very much evident from the aforesaid narration of facts. Hence, this is a classic case of both non-application of mind on the part of the ld. AO mentioning the specific offence and also initiating penalty on one limb of the alleged offence and levying penalty on the other limb of the alleged offence thereon. Hence, the ratio laid down by the Hon'ble Jurisdictional High Court in the case of Samson Perinchery - ITA No.1154/2014 dated 05/01/2017 squarely becomes applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hable as is evident from the aforesaid narration of facts. 4.2. We hold that the decision of Hon'ble Jurisdictional High Court in the case of CIT vs Samson Perinchery in ITA No.1154/2014 dated 05/01/2017 would hold the field in the facts of the instant case. Respectfully following the said decision, the penalty levied for A.Y.2001-02 is hereby directed to be deleted. 5. Hence we hold that in respect of penalties levied for the additions made in the section 153A assessments, the decision rendered for A.Y.2001-02 for cancellation of penalty in the sum of ₹ 1,67,407/- thereon would apply with equal force for deleting the penalties of ₹ 16,322/- and ₹ 1,19,610/- for the A.Yrs 2003-04 and 2007-08 respectively also, in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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