2015 (10) TMI 2044

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e Act. 2. The appellant prays for the following relief - The order of the ld. CIT(A) confirming the levy of penalty may kindly be quashed. 3. Brief facts of the case as gathered from the records available are that the appeal is against levy of penalty of Rs. 2,29,000/- u/s 271(1)(c) of the I.T. Act, 1961 (herein after referred to as the Act). The original return of income was first filed on 16.3.2006 showing income of Rs. 2,38,538/-. Search operation u/s 132 of the Act was conducted at the premises of Mahendra Kataria Group, Silvassa on 27/12/2006 during which various documents and materials pertaining to assessee were found showing his investment in Om Surya Project. In the post search enquiries, statement of the assessee Mr. Natubhai G. Patel was also recorded on 10.1.2007 wherein he admitted to have made investment in Om Surya Project of Rs. 48,72,000/-. On the basis of documents and material found during the search and the statement recorded of the assessee admitting the investment, notice u/s 153C was issued on 31.7.2007. In response to this notice the assessee filed return of income on 8.11.2007 showing total income of Rs. 2,38,538/-. Notice u/s 143(2) along with the....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....income of Rs. 8,00,000/- for this investment only in the return filed on 20.10.2008 after detection of the concealment of income corresponding to this undisclosed investment made and issue of notice u/s 153C, 143(2) and detailed questionnaire. In view of these facts, it is apparent that the appellant had concealed income and filed inaccurate particulars of income. Therefore, the AO was justified in levying the penalty which is confirmed." 6. Aggrieved, the assessee is now in appeal before the Tribunal. The ld. AR made following submissions :- (A) (1) The assessee is an individual trading in building material and submitting return of income showing presumptive income u/s 44AD of the Act. (2) Consequent to search operation u/s 132 of the Act in the case of Mahendra Katariya Group of Silvasa, it was admitted to have made investment therein and disclosed income of Rs. 30,29,350/-. (3) Neither any search was conducted in his case nor were any documents recovered from the possession of the assessee. Hence, a notice u/s 153C of the Act was issued. In response to the same, the assessee submitted return of income on 8/11/2007, showing total income of Rs. 2,38,538/- (for AY 20....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

..... (4) The ld. CIT(A) has grossly erred in sustaining the penalty, without giving his own independent finding and in total disregard to the factual & legal aspect as well as peculiar circumstances involved in the case. Further to give support to his submission various judicial pronouncements were furnished by the ld. AR. However, special impetus was placed on the decision of Hon'ble Jurisdictional High Court in the case of Kirit Dahyabhai Patel vs. ACIT in Tax Appeal Nos.1181 of 2010, 1182 of 2010 and 1185 of 2010 and the orders of the Tribunal and placed copies of the same in the compilation. 7. On the other hand, the ld. DR relied on the orders of lower authorities. 8. We have heard the rival contentions and gone through the facts and circumstances of the case. In the judicial pronouncement referred by the ld. AR in the case of Kirit Dahyabhai Patel vs. ACIT in Tax Appeal No.1181 of 2010 along with others vide order dated 3/12/2014 wherein the facts of the case were as follows :- "4. The appellant-assessee had filed its return of income for the assessment year 2002-03 on 7.6.2002, declaring total income at Rs. 1,30,900/-. A search under section 132 of the Income-tax....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....o the facts of the present case. 16. In view of the aforesaid facts of the case and also the principle laid down in the decisions relied upon by the learned senior counsel for the appellant more particularly the principle laid down in the case of Assistant Commissioner of Income Tax vs. Gebilal Kanhailal (supra) and Commissioner of Income Tax vs. Abdul Rashid (supra), we are of the considered opinion that the penalty under section 271(1)(c) of the Incometax Act cannot be levied on the income shown in the return filed under section 153 of the I.T. Act. 17. Considering the facts and circumstances of the case and also considering the decision of the Madras High Court in the case of S.D.V. Chandu (supra), we are of the opinion that the appellant is entitled to the benefit of the provisions of explanation 5(2) to section 271(1)(c) of the Income Tax Act." 9. The facts of the case under appeal before us are identical to a great extent and quite similar to the facts as described herein above, in the decision of Hon'ble Jurisdictional Gujarat High Court in the case of Kirit Dahyabhai Patel vs. ACIT(supra). During the course of post search enquiries the assessee- appellant in reply ....