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TMI Blog2024 (8) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty u/s 271(1)(c) by invoking the provisions of section 271(1)(c) and Explanation 5A provided therein. CIT (A) without appreciating the relevant facts has simply sustained the penalty levied by the AO - Thus, we set aside the order passed by the CIT (A) and direct the AO to delete the penalty levied u/s 271(1)(c). Assessee appeal allowed. - Shri Laliet Kumar, Judicial Member And Shri Manjunatha, G. Accountant Member For the Assessee : Shri P Murali Mohan Rao CA For the Revenue : Shri Shakeer Ahmed, DR ORDER PER MANJUNATHA, G. A.M This appeal and Stay Application filed by the assessee are directed against the order dated 30.09.2022 of the learned CIT (A)-12, Hyderabad, relating to A.Y. 2015-16. 2. The assessee has raised the following grounds: 1. On the facts and in the circumstances of the case the order passed by the CIT(A) is erroneous both on facts and in law. 2. The Ld. CIT(A) ought to have appreciated that the Ld. AO erred in passing order u/s. 271(1)(c) of the Act, without fairly examining and judiciously considering the replies submitted by the assessee during the course of penalty proceedings. 3. The Ld. CIT(A) ought to have appreciated that the Ld. AO erred in passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,15,49,330 and also received a sum of Rs. 98,69,330/- in cash. However, no capital gain was offered for taxation in respect of the sale of the above property in the return of income filed for A.Y 2015-16. The assessee admitted undisclosed income of Rs. 1,83,88,030/- and also included in his return of income filed u/s 153A of the I.T. Act, 1961. Therefore, opined that the assessee has concealed particulars of income which fall under Explanation 5A, which is applicable for a search initiated u/s 132 on or after 1.6.2007 and shall be considered as deemed to have concealed the particulars of income. Therefore, called upon the assessee to explain as to why penalty shall not be levied. In response, the assessee submitted that he has not willfully concealed particulars of income. Further, although the seized document denotes only sale consideration but not cash consideration as agreed but to buy peace, the appellant has admitted additional income of Rs. 1,83,88,030/- towards Short- Term Capital Gain derived from the sale of property. Since the appellant has offered additional income to buy peace, no penalty can be levied. 5. The Assessing Officer however, was not satisfied with the expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed u/s 153A of the Act, without any modification and thus once there is no difference between the returned income and assessed income, the question of concealment of income as contemplated u/s 271(1)(c) of the Act does not arise. The learned Counsel for the assessee further referring to the decision of the Hon'ble Gujarat High Court in the case of Kirit Dahayabhai Patel vs. ACIT reported in (2017) 80 Taxmann.com 162 submitted that the return of income filed in response to notice u/s 153A is to be considered as return filed u/s 139 of the Act and penalty has to be levied on income assessed over and above income returned u/s 153A, if any. The learned Counsel for the assessee further referring to decision of the Hon'ble Supreme Court in the case of CIT vs. Suresh Chandra Mittal, [2001] 251 ITR 9 (S.C) submitted that voluntary surrender of income in good faith cannot be considered as concealment of income. Therefore, he submitted that the Assessing Officer and the learned CIT (A) erred in sustaining the penalty levied u/s 271(1)(c) of the I.T. Act, 1961. 9. The learned DR, on the other hand, supporting the orders of the authorities below submitted that, it is a fit case for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, any return filed u/s 153A of the I.T. Act, 1961 is to be considered as return filed u/s 139 for the purpose of penalty u/s 271(1)(c) of the Act and as per the said return, if the assessed income and the returned income is one and the same or there is no difference between the income returned by the assessee and income assessed by the Assessing Officer, then for the purpose of section 271(1)(c) of the Act, it can be said that there is no concealment of income. This legal proposition is supported by the decision of the Hon'ble Gujarat High Court in the case of Kirit Dahayabhai Patel vs. ACIT (Supra) where it has been clearly held that in view of the specific provision of section 153A, the return of income filed in response to notice u/s 153A is to be considered as return filed u/s 139, as the Assessing Officer has made assessment on the said return and therefore, the return is to be considered for the purpose of penalty u/s 271(1)(c) of the Act and penalty is to be levied on the income assessed over and above the income returned u/s 153A, if any. In the present case, there is no difference between the income returned by the assessee u/s 153A and income assessed by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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