TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 638
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....08 (ITA No.3118, 3119 and 3127/Ahmedabad/2008) A.Y.2005-06 and confirmed the order of learned CIT(A) by dismissing the appeals of the Revenue Department. The Tribunal has confirmed the deletion of penalty after recording the following reasons: "6. We have heard both the parties. It is true that the assessees had filed revised returns of income without any detection by the Department. The Department had not issued any notice of enquiry or any of the statutory notices u/s 142 or 143 of the Income-tax Act till the revised returns were filed. On the facts of the case, the original returns will stand substituted by the revised returns for all intent and purpose. There is no concealment of income in the revised returns. In our view, the learned CIT(A) has correctly appreciated the factual and legal aspects of the case. We, therefore, endorse his order." 2.1 The aforesaid finding of the Tribunal was challenged by the Revenue Department before the Hon'ble High Court in Tax Appeal No.1309 of 2009 and Tax Appeal No.1310 of 2009 and Tax Appeal No.1307 of 2009 all order dated 28th June, 2011. The Hon'ble Gujarat High Court in respect of these three cases have taken an identical view that the....
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.... Learned Sr.D.R. has also pointed that the assessee was asked to file month-wise production detail, the details of goods dispatched through transporter and the details of packaging material purchased. The argument of learned Sr.D.R. is that the return was revised by the assessee on 30th of October, 2006, i.e., after receiving this notice declaring an additional income of Rs. 9,18,409/- as GP on unaccounted sales of Rs. 31,47,392/-. Originally the loss declared was therefore reduced to Rs. 10,43,850/-. Learned Sr.D.R. has also pointed out that thereafter an order u/s.143(3) was passed dated 30th of November, 2007 according to which there was an addition of cost of unaccounted purchases of corrugated boxes of Rs. 4,63,034/- 4. We have noted that in the background of above facts in the case of Sonata Ceramic a penalty u/s.271(1)(c) was imposed vide an order dated 29th of April, 2008. A penalty of Rs. 4,95,592/- was imposed in respect of both the additions, namely, "unaccounted purchases" and "GP on unaccounted sales". When the matter was carried before the First Appellate Authority, learned CIT(A) has deleted the penalty primarily on the ground that the return was revised to avoid th....
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.... 2 ACIT Vs. Radhey Shyam, (1980) 123 ITR 125 (Allahabad H.C.) 3. CIT Vs. JKA Subramania Chettiar, (1977) 110 ITR 602 (Madras HC) 4. Sunanda Ram Deka Vs. CIT, (1994) 210 ITR 988 (Gauhati HC) 5. DCIT V. Gray Cast Foundry Works, (2006) 99 ITD 515 (Ahmedabad ITAT) 6. Ravi & Co. V. ACIT, (2004) 271 ITR 286 (Madras HC) 7. PC Joseph & Bros V. CIT, (2000) 243 ITR 818 (Kerala HC)" 6. From the side of the respondent-assessee, learned AR, Mr. S.N. Divetia appeared and vehemently supported the view already taken by the Tribunal in the past. The first argument was that the penalty levied on GP addition should not be sustained because the amount as disclosed in the revised return was accepted in the assessment order, therefore there was no element of concealment, vis-à-vis, income furnished as per the revised return. His next argument was in respect of purchase of corrugated boxes. He has informed that there was no detection of any concealment from the factory premises of the Assessee. The impugned addition was made merely on the basis of statement of an another concern, namely, Crompton Industries. Learned AR has then raised a legal argument that in a situation when an assessment ....
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....to impose concealment penalty pertaining to that amount. We have raised this question during the hearing in the light of a recent decision of Hon'ble Gujarat High Court pronounced in the case of Kiritbhai Dayabhai Patel Vs. ACIT (Tax Appeal No.1181 of 2010 and other orders dated 03.12.2014) wherein the Hon'ble High Court has given the verdict as under: "13. Considering the facts and circumstances of the case and also considering the decision relied upon by learned Senior Advocate for the appellant, we are of the considered opinion that the view taken by the Tribunal is erroneous. The CIT(A) rightly held that it is not relevant whether any return of income was filed by the assessee prior to the date of search and whether any income was undisclosed in that return of income. In. view of specific provision of Section 153A of the I.T. Act, the return of income filed in response to notice under Section 153A of the I.T, Act is to be considered as return filed under Section 139 of the Act, as the Assessing Officer has made assessment on the said return and therefore, the return is to be considered for the purpose of penalty under Section 271(l)(c) of the I. T. Act and the penalty is to be....
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....peace consequent to search by the Central Excise Department in the premises of M/s.Crompton Industries and thereafter the partner of the appellant firm disclosed additional income in the revised return disclosing G.P. on unaccounted sales. It is the contention of the A.R. that the said addition has been made on the basis of evidence collected from third party and the revised return was filed before any detection by the Income-tax Department. The appellant agreed to pay Excise Duty on the additional sales to avoid litigation with the department and harassment to its customers as the Central Excise Department continued inquiry for a period of about six months after the search. It has been held in Bhairav Lal Verma reported in 230 ITR 855 (All.) that if the department has any incriminating material with respect to disclosed income then disclosure cannot be said to be voluntary. If income is disclosed after books of accounts had been seized at a raid it cannot be said to be voluntary as per decision in Hakam Singh v.CIT reported in 124 ITR 228 (All.). In the case of Joy A.V. AIukkas Jewellery V.CIT reported in 185 ITR 638 (Ker.) it has been held that it cannot be said as a principle of....