TaxTMI 
TaxTMI 
2015 (4) TMI 787
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....the assessee filed its return of income response to the notice under section 153A of the Act declaring total income at Rs. 29,25,680/- which included the undisclosed income of Rs. 26 lakhs disclosed during the course of search as pertaining to the year under consideration. The AO initiated penalty proceedings under section 271(1)(c) of the Act in response to the disclosure of Rs. 26 lakhs offered in the return of income. The AO levied penalty of Rs. 8,29,400/- on the disclosure of Rs. 26 lakhs offered in the return of income for concealment of income. 5. On appeal, the CIT(A) deleted the penalty by observing that the assessee had offered additional income of Rs. 26.00 lakhs in her return of income u/s.153A and has paid the tax along with interest thereon. The said disclosure has been made in respect of unaccounted investments in assets and the same stands accepted by the AO in the assessment order. He observed that the facts of the assessee's case are covered by the decision of the Hon'ble Court of Rajasthan in the case of CIT Vs. Kanaiyalal, (2008) 299 ITR 19 (Raj) and CIT Vs. Mishrimal Soni, (2007) 289 ITR 77, and the decision of Hon'ble Madras High Court in the case of CIT Vs. ....
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....ed in response to notice under section 153A of the Act. The return filed by the assessee has also been accepted by the AO and no addition has been made by AO. The AO in the present case had levied penalty on the amount surrendered by the assessee during the course of search and seizure operation and the aforesaid penalty was confirmed by Ld. CIT(A) by following the decision in the case of Kirit Dayabhai Patel (supra). We find that the decision in the case of Kirit Dayabhai Patel (supra) was challenged by the assessee and the Hon'ble Gujarat High Court vide order dated 03-12-2014 in Tax Appeal Nos. 1181-1185 of 2010 has reversed the order of Hon'ble Tribunal by holding as under:- "13. Considering the facts and circumstances of the case and also considering the decisions 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 inco....
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....10. The sole ground of appeal of the assessee is as under: "1. On the facts and circumstances of the case, the ld.CIT(A) has grossly erred in upholding the penalty of Rs. 8,67,700/- u/s.271(1)(c) of the Act as levied by the AO in respect of alleged unaccounted investment in land, which is erroneous and bad in law and needs to be deleted. 11. Brief facts of the case are that in response to the notice under section 153A of the Act, the assessee filed her return of income declaring income at Rs. 29,25,680/-. The assessment was made under section 143(3) r.w.s. 153A of the Act which was completed on 30.6.2008, wherein addition of Rs. 25,36,720/- for unaccounted investment in land was made by the AO. 12. On appeal, the CIT(A) confirmed action of the AO. 13. Thereafter, the AO levied penalty |under section 271(1)(c) of the Act on the said addition of Rs. 25,36,720/- amounting to Rs. 8,67,700/- for concealment of income. 14. On appeal there against, the CIT(A) confirmed the penalty. 15. Before us, the AR of the assessee filed copy of the order of this Bench of the Tribunal in the case of quantum appeal of the assessee in IT(SS)A.No.187, 240 and 241/Ahd/2010 order dated 28.8.2014 and ....
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....High Court in the case of Kirit Dahyabhai Patel Vs. ACIT, Tax Appeal No.1181, 1182 and 1185 of 2010 order dated 3.12.2014 and submitted that the Hon'ble Gujarat High Court has reversed the order of the Tribunal in that case, and therefore, he submitted that the order of the CIT(A) should be set aside and penalty levied by the AO should be deleted. 22. The DR agreed with the submissions of the AR of the assessee. 23. We find that the Hon'ble Gujarat High Court has decided the following substantial question of law: "Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in law in restoring the penalty imposed under section 271(1)(c) of the Act holding that benefit under explanation 5 to section 271(1)(c) of the Act would be available only for period where due date for filing the return under section 139(1) of the Act had not expired.? 24. The Hon'ble Gujarat High Court held as under: "13. Considering the facts and circumstances of the case and also considering the decisions 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 th....