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TMI Blog2021 (2) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... culars of income by the assessee has to be in the income tax return filed by the assessee. The Hon ble Delhi High Court held that no penalty would be exigible in such scenario. The facts of the case before us are exactly similar and identical to the facts before the Hon ble Delhi High Court. In the instant case also there is no dispute that assessee had indeed disclosed ₹ 3 Crores additional income in the income tax return filed by it. As decided in Shree Sai Developers [ 2019 (8) TMI 59 - GUJARAT HIGH COURT ] since there was no concealment in the return of income filed by the assessee which was ultimately accepted by the Revenue, there cannot be any levy of penalty u/s.271(1)(c) of the Act. Thus we hold that no penalty u/s.271(1)(c) would be exigible thereof in the hands of the assessee. Accordingly, the grounds raised by the assessee are allowed. - ITA No. 7663/Mum/2013 - - - Dated:- 23-2-2021 - HON BLE JUSTICE P. P. BHATT , PRESIDENT And SHRI M. BALAGANESH , AM Assessee by : Shri Nitesh Joshi Revenue by : Shri Tharian Oommen ORDER PER M. BALAGANESH (A.M): This appeal in ITA No.7663/Mum/2013 for A.Y.2009-10 arises out of the order by the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see in the return of income which was accepted by the ld. AO while completing the assessment. Thereafter, the ld. AO levied the penalty u/s.271(1)(c) of the Act on the sum of ₹ 3 Crores ultimately offered by the assessee pursuant to the survey. This action of the ld. AO was upheld by the ld. CIT(A) on the ground that assessee had not recorded the cash of ₹ 3 Crores in its regular books of accounts, and that , but for the survey, the assessee would not have come forward to offer the same to the Income Tax department. 3.1. We find that on perusal of page 10 read with page 13 of the factual paper book filed by the assessee comprising of the profit and loss account for the year ended 31/03/2009 and the schedule for the other income thereon, the sum of ₹ 3 Crores has been disclosed by the assessee exclusively as income declared under survey under the head other income . This itself goes to prove that the assessee had duly recorded that income offered in the survey in its books of accounts. We find that this sum of ₹ 3 crores was also duly offered to tax by the assessee in the return of income filed. Moreover, we find that similar issue had been the subject ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 271 (1) (c) of the Act. The perusal of the said Explanation also clearly establishes the direct nexus between the concealment/inaccurate particular being furnished with the return filed. 10. To bolster this submission, the learned counsel for the assessee took refuge of Explanation 5 and Explanation 5A of Section 271 of the Act and submitted that these Explanations provide that in cases of search by way of deeming fiction, the liability towards penalty has been prescribed even in cases where the return of income for such year has not been furnished before the said date of search. Therefore, wherever the legislature intended to impose a penal liability covering a case where return was yet to be filed, a deeming fiction has been consciously provided. In the absence of any such deeming fiction imposing penalty in a case of survey where return is yet to be filed, the penal provision of Section 271 of the Act cannot be invoked as the mandatory ingredients thereof are not met at all. 11. He also sought to draw sustenance from the judgment of Supreme Court in the case of Commissioner of Income Tax, Ahmedabad Vs. Reliance Petroproducts Pvt. Ltd. (2010) 3 SCR 510 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contending that even during survey when it was found that the assessee had concealed the particular of his income, it would amount concealment in the course of any proceedings . The words in the course of any proceedings under this Act are prefaced by the satisfaction of the AO or the Commissioner of Income Tax (Appeals). When the survey is conducted by a survey team, the question of satisfaction of AO or the Commissioner (Appeals) or the Commissioner does not arise. We have to keep in mind that it is the AO who initiated the penalty proceedings and directed the payment of penalty. He had not recorded any satisfaction during the course of survey. Decision to initiate penalty proceedings was taken while making assessment order. It is, thus, obvious that the expression in the course of any proceedings under this Act cannot have the reference to survey proceedings, in this case. 15. It necessarily follows that concealment of particulars of income or furnishing of inaccurate particular of income by the assessee has to be in the income tax return filed by it. There is sufficient indication of this in the judgment of this Court in the case of Commissioner of Income Tax, Delhi- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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