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TMI Blog2023 (9) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... wing grounds of appeal:- "1. The order passed by the learned Commissioner of Income-tax (Appeals) confirming the penalty u/s. 271(1)(c) of the Act is bad in law and contrary to the provisions of law and facts. It be so held now and the order passed by the learned Assessing Officer levying penalty of Rs. 3,15,000/- as confirmed by the Commissioner of Income-tax (Appeals) be quashed. 2. The learned Commissioner of Income-tax (Appeals) erred in law and on facts in confirming penalty u/s. 271(1)(c) of the Act for a sum of Rs. 3,15,000/- in spite of the facts that the donation made by the appellant was genuine, was made through the banking channel was made to a registered trust and was supported by evidences which cannot be rebutted. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misplaced by him inadvertently. Further, during the month of March 2021, when the Vivad Se Vishwas Scheme was to come to an end, the assessee required about the possibility of settlement of said appeal before ITAT to be covered under the VSV Scheme on the belief that appeal is pending before ITAT Ahmedabad. However, it was only then that it was discovered that there had been a lapse in filing of the present appeal by Shri Gaurang C. Trivedi and thereafter, appeal was filed with immediate effect before ITAT Ahmedabad. Looking into the facts leading to delay in filing of the present appeal, we are of the considered view that delay in filing of the present appeal has been on account of inadverting mistake made by the Officer Clerk of the Chart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particulars of his income and thereby concealed income of Rs. 10,50,000/- to evade legitimate tax. Accordingly, penalty amounting to Rs. 3,15,000/- being 100 % of tax on income concealed of Rs. 10,50,000/- was levied on the assessee. The appeal against the 271(1)(c) order passed by Assessing Officer, was upheld by the CIT(A) with the following observations:- "In instant case, there is specific finding by the A.O. as much as notice u/s. 148 was issued, the findings having wide tax effect. In a recent judgment dated 31.10.2013 in the case of Mak Data Pvt. Ltd. Vs. CIT, 38 TAxmann.Com 448 (SC), the Hon'ble Supreme Court has ruled, "Voluntary disclosure does not absolve assessee, bonafide explanation of income required". The facts of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 10,50,000/- only in order to buy peace and looking into the instant facts, it cannot be said that such disclosure was not voluntary in the instant facts since the assessee was not in receipt of reasons for re-opening of assessment at the time when the return of income was filed on 04.04.2017. The second contention put forth by the Counsel for the assessee before us is that at the time when the claim of deduction under Section 35 of the Act was made by the assessee on account of donation given by the assessee to M/s. Herbicure Healthcare Bio-Herbal Research Foundation (HHBRF), the registration granted under Section 35(1)(iii) of the Act in respect of the above Institute i.e. HHBRF was valid. It was only subsequently that a survey action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act were provided to the assessee on 19.04.2017. Therefore, it cannot be presumed that the reasons for reopening of assessment were known to the assessee at the time when return was filed by the assessee in response to notice under Section 147 of the Act withdrawing the claim of deduction under Section 35(1)(ii) of the Act. We observe that the ITAT Ahmedabad in the case of S. G. Vat Care Pvt. Ltd. in ITA No. 1943/Ahd/2017 vide order dated 15.01.2019 has held that assessee is eligible for deduction under Section 35 of the Act in respect of donation given to M/s. Herbicure Health Care Bio Herbal Research Foundation since the donations were given by the assessee on 25.03.2014 and at that point of time, the donee was identified as an eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigation, penalty was to be deleted." The Hon'ble Madhya Pradesh High Court in the case of CIT vs. Punjab Tyres 162 ITR 517 (Madhya Pradesh) the High Court held that when an amount is surrendered to purchase peace, or for other similar reason, such surrender cannot amount to admission, constituting evidence of concealment in penalty proceedings. The High Court held that unless there is any evidence showing that assessee had consciously concealed particulars of his income, any admission made by him surrendering the said particular amount as his income would not by itself justify imposition of penalty. 9. Accordingly, in light of the facts of the instant case and judicial precedents on the subject, we are hereby directing deletion of lev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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