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TMI Blog2021 (7) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... We affirm the order passed by ld CIT(A) - Appeal filed by the revenue is dismissed. - ITA No.154/SRT/2017 - - - Dated:- 5-7-2021 - Shri Pawan Singh, Judicial Member And Dr. Arjun Lal Saini, Accountant Member For the Assessee : Sh. P.M. Jagasheth CA For the Revenue : Ms. Anupama Singla, Sr.DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by Revenue is directed against the order of learned Commissioner of Income Tax (Appeals)-4, hereinafter referred as ld. CIT(A) Surat dated 07.07.2017, which in turn arises against the penalty levied under section 271(1)(c) of the Income Tax Act, 1961 [hereinafter referred to as the Act ] for the assessment year (AY) 2012-13. The Revenue has raised the following grounds of appeal: 1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the penalty of ₹ 64,49,270/- imposed under section 271(1)(c) of the Act. The Ld.CIT(A) did not appreciate the fact that Explanation 5A of section 271 of the Act is clearly applicable to this case as return of income was not filed till the date of search and due date of filing return of inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how-cause notice under section 274 read with section 271(1)(c) on 27.03.2015. The assessee filed his reply on 28.08.2015. In the reply, the assessee contended that he has filed appeal before the ld. CIT(A) and requested to keep the penalty proceeding in abeyance till the disposal of appeal. The AO noted that assessee has filed appeal against the various additions. No appeal is filed by assessee on offering such income of ₹ 3.12 Crore. The AO held that the penalty initiated on the amount of ₹ 3.12 crore, which was not shown in the original return of income on account of on money received on sale of land of Sultanabad, Surat. The AO further noted that at the time of filing return of income under section 153A, the assessee declared additional income and that the case of assessee is squarely covered under Explanation-5A of section 271(1)(c) of the Act and that the assessee has committed default in concealing the income and furnishing inaccurate particular without reasonable cause and liable for levy of penalty. The AO levied the minimum penalty @ 100% of tax sought to be evaded. 3. Aggrieved by the levying of penalty under section 271(1)(c) the assessee filed appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice is not sustainable. It was further stated that assessee has not filed original return as search action was conducted on 05.03.2013, i.e. before due date of filing return of income and return was filed only under section 153A. 5. The ld. CIT(A) after considering the order of penalty, submission of assessee held that assessee has declared the additional income in the return of income filed in response to notice under section 153A or under section 139(4). The ld. CIT(A) clarified that penalty has been levied on income declared in the return, filed in response to notice under section 153A and not on the additions/deviations made in the assessment order, with respect to which satisfaction has been recorded separately and penalty was initiated. The ld. CIT(A) also relied on the decisions of Hon ble Delhi High Court in S.A.S. Pharmaceutical ( 335 ITR 259 and Hon ble Gujarat High Court in Krit Dahyabhai Patel vs. ACIT (280 CTR 216), wherein it was held that penalty is not imposable, if the income has been declared in the return of income in response to the notice under section 153A. The ld. CIT(A) after referring the decision of Tribunal in ITO Vs Goplani Ruchandani (supra) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the ld. CIT(A). However, alternate submission of assessee was not adjudicated as the assessee was granted relief on merit. To support his contention that in absence of clear finding of AO whether the assessee is guilty of concealment of income or furnishing inaccurate particular of income, penalty cannot be levied under section 271(1)(c) of the Act, relied on the decision of jurisdictional High Court in CIT v/s. White Ford India [(2013) 38 taxmann.com 15 (Gujarat)]. 9. We have considered the rival submission of the parties and have gone through the orders of authorities below. We have also deliberated on the various case laws relied by ld. CIT(A) and by learned AR for the assessee. There is no dispute that a search action was carried out on the assessee group on 05.03.2013. The assessee disclosed additional income of ₹ 3.12 crore during the search. The assessee while filing return of income in response to the notice under section 153A disclosed the capital gain on 31.03.2014. The last date for filing return of income under section 139(4) for AY 2012-13 was 31.03.2014. The additional income declared by the assessee was offered and accepted by the assessing officer w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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