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TMI Blog2023 (11) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... ancel the same and offer my apology and promise to not put any kind of non-documentary submission in future. This version does not establish that the claim of the assessee is bogus or non genuine nothing contrary brought on record. Considering the facts and circumstances of the case the penalty is not sustainable in light of this circumstances of the case, we are of the considered view that the penalty of levy of the lower authorities confirmed by the CIT(A) u/s 270A of the Act does not have any legs to stand, therefore, the same is deleted based on stated facts. Appeal of the assessee is allowed. - DR. S. SEETHALAKSHMI, JM SHRI RATHOD KAMLESH JAYANTBHAI, AM For the Appellant : Shri Virendra R Jain-C.A. For the Respondent : Shri S.M. Joshi, JCIT-DR ORDER PER: Dr. S. Seethalakshmi, JM The assessee has filed an appeal against the order of the National Faceless Appeal Centre, Delhi [herein after NFAC/Ld.CIT(A) ] dated 28.11.2022 for the assessment year 2017-18. 2. The assessee has raised the following grounds of appeal:- 1. On the fact and circumstances of the case worthy CIT(A) has erred in confirming the penalty order imposed by the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the assessee had voluntarily surrendered his claim of deduction so in this case no penalty should be imposed because there was no addition on record and the voluntarily surrender never attracts penalty provision as held in various judgments penalty is unjustified in this case wherein assessee has surrender the amount voluntarily. The ld. AO noted that the reply of the assessee considered but not found tenable and since the assessee misreported his income to the extent of Rs. 5,00,000/- penalty of Rs. 1,91,500/- being the amount calculated @ 200 % of the tax payable on misreported income. 4. Aggrieved, from the said order of levying the penalty the assessee has filed an appeal before the ld. CIT(A). The ld. CIT(A) after hearing the contention of the assessee dismissed the appeal of the assessee by giving following findings on the issue:- 4. Decision:- I have considered the contentions made by appellant. I have also considered the observations of the Assessing Officer while deciding the issue under consideration. It is seen that no appeal was filed by the appellant against the assessment order from which the penalty proceedings originated. The appellant has not contes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated as under:- Returned Income 4,29,620/- Add: Addition on a/c of wrong claim of 80G 5,00,000/- Total Income 9,29,620/- After that Ld. AO initiated penal proceedings u/s 270A of the IT Act 1961 and imposed a penalty u/s 270A Rs. 191500/-. On before I appeal CIT(A) confirmed the penalty order. Being aggrieved to the said order I have filed an appeal before your office. Now your office has awarded me the honour to submit my reply:- Section 270AA has been inserted into the Act as a measure to reduce the litigation and to get the speedy recovery of the tax along with interest. In section 270AA of the Act, the Assessee has been provided with option to making application to AO for granting immunity from imposition of penalty under section 270A and initiation of proceedings under section 276C or section 276CC. subject to fulfilment of following conditions: - (a) the tax and interest payable as per the order of assessment or reassessment under sub-section (3) of section 143 or section 147, as the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has surrendered income than penalty in these case is unjustified and deserve to be cancelled this is not a question whereas the surrender has been made in return or at the time of asst. proceedings thus in this case no penalty should be imposed because the appellant has voluntarily surrendered the amount to buy peace. It is held in the judgement Of Kishanchand Shivchand Rai VS CIT (1973) 88 ITR 293 (Punjab) That the mere fact of surrender could not be a necessarily admission of the assessee that the surrender amount were his undisclosed income so such surrender alone could not be the basis of imposing penalty. Relying upon the above decision, Hon'ble Karnataka High Court in the case of CIT Vs SSA'S Emerald Meadows (2016) 73 taxguru.in 241 (Karnataka) dismissed appeal of the Department in which substantial question of law was as follows: (1) Whether, omission if assessing officer to explicitly mention that penalty proceedings are being initiated for furnishing of inaccurate particulars or that for concealment of income makes the penalty order liable for cancellation even when it has been proved beyond reasonable doubt that the assessee had concealed income in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. The findings of the ld. CIT(A) is nothing but only confirmation of the contention of the Assessing Officer and even though the assessee has submitted that he has neither the assessee has not unreported his income, the income has already been taxed. The Only deduction which was claimed in advertently and by the guidance of counsel who is praying the return of income remained the same even there is no lose to the income as TDS has already been deducted during the assessment proceedings. The assessee has already been surrendered the claim and not persuaded considering the facts that even after the assessment there is no liability of tax. He has not filed any appeal on account of the assessment shows that there is no unreported of his income by the assessee and merely the assessee has not filed and there cannot be any automatically levy penalty u/s 271A of the Act. 7. Per contra, the ld. DR relied upon the reasoned order of the lower authorities, wherein the assessee has filed two different return of income and in the later one has filed wrong claim when the assessee wrong claim of donation and was called upon to justify the claim. Then the assessee has surrendered the exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat 380028 AACTS9727 400000 200000 Total B 1000000 500000 In the assessment proceeding the assessee did not produce the proof and the ld. AO based on the information placed on record nothing contrary placed on record that the claim of the assessee in real terms not given. The assessee has given the name of trust, pan number and amount of donation given was made in the return of income the assessee has withdrawn the said claim of donation and ld. AO did not investigate this matter further considered the revised computation and in that there is no further amount of tax or interest payable and the details of the donation was already available on record. But the assessee in the assessment proceeding submitted that Regarding Donation-I don t any document slip so request you to cancel the same and offer my apology and promise to not put any kind of nondocumentary submission in future. This version does not establish that the claim of the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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