9911796707
TMI Blog2024 (11) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... a bald statement to the effect that the assessee has understated her turnover and thus, concealed her income and that the assessee s original return failed to reflect the true state of affairs. We find that neither the impugned order of the Ld.CIT(A) nor the Assessment Order/penalty order of the AO, doesn t even spell out as to what amount assessee returned in the original return in both the years. AO/Ld.CIT(A) didn t bother to even point out how much amount the assessee has concealed. Neither the Assessment Order nor the penalty order spells out as to what was the original returned income as well as the revised returned income. Therefore, merely based on projected financials contained in the hard disc found during survey and the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 days in filing of the appeal for AY 2009-10. In this regard, it is noted that the assessee has filed an affidavit along with petition for condonation of delay dated 22.04.2022. The affidavit of the assessee has been duly notarized and the assessee submits that the impugned order is dated 17.12.2018 and that she had to file appeal before 25.02.2019, which she couldn t because her husband met with an accident in USA, and hence she went to USA to attend to him; and moreover, since, the papers relating to the appeals were misplaced and couldn t be handed over to the Ld.AR before she left to USA, the delay happened. It is also noted that meanwhile the assessee was advised to file application under Vivad Se Viswas Scheme, 2020. However, the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the penalty proceedings, the assessee was heard and thereafter, the AO levied penalty of Rs. 16 lakhs as under: The assessee's original return failed to reflect the true state of affairs. The Assessee was understating her turnover and concealing her income. It was only through the survey action this concealment was brought on record. Also it is pertinent to mention that only when notice under 148 was issued a revised return was filed accommodating the findings of the survey. The AR made submission to the effect that Assessee made disclosures only to buy peace with the department and to avoid protracted litigation. It is true that Assessee has cooperated with the department and paid the tax liability raising out the revised return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolve the assessee from penal action initiated for the concealment of income. The Assessee's original return failed to reflect the true state of affairs regarding assessee's income as assessee concealed the same and I am convinced that this attracts penalty as contemplated u/s 271(1)(c.). The maximum and minimum penalty in this case works out to Rs. 10,49,071/- and Rs. 31,47,213/- respectively. I am convinced that this is a case of concealment of income on part of the assessee and as per section 271(1)() of the act a penalty of Rs. 11,00,000 is levied. This order is issued after getting the approval of JCIT, NCR-1, Chennai. 5. Aggrieved, by the aforesaid action of the AO levying penalty of Rs. 16 lakhs for AY 2009-10 and Rs. 11 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2016 admitting total income of Rs. 57,94,860/- and his action of accepting the RoI filed at Rs. 57,94,860/- by Assessment Order dated 19.12.2016 u/s. 143(3) read with sec.147 of the Act. Thereafter, he levied penalty of Rs. 11 lakhs. On appeal, the Ld.CIT(A) noted the assessee s explanation, wherein she submitted that the hard disk found during survey contained only projected finance of the business and in order to avoid protracted litigation, she admitted the turnover and paid the tax accordingly, upon receipt of notice u/s. 148 of the Act. It is noted from the statement of fact based on the projected financials and statement recorded u/s. 133A of the Act, the assessee had accepted the turnover and paid tax by including it in the revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty, because, the AO failed to show that the assessee had deliberately under estimated her income. Survey team found the turnover not matching with books maintained by the assessee. Only the profit embedded in turnover can be brought to tax. Unless the assessee while estimating her income has deliberately suppressed her income by under estimating her income, an inference of concealment couldn t have been drawn. 9. Bearing in mind the fact that the related quantum addition (accepted by the AO) was purely on estimated basis with inherent subjectivity involved, we are of the considered opinion that no penalty is warranted in both the appeals 10. In the result, appeals filed by the assessee are allowed. Order pronounced on the 22nd day of Novem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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