TaxTMI 
TaxTMI 
2017 (1) TMI 573
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....ommissioner of Income Tax (A)- 23, Mumbai has erred in law in confirming the penalty levied of Rs. 3,13,540/- u/s 271(1)(c) by the A.O. " 3. The Brief facts of the case are that the assessee filed original return of income on 30th March, 2007 declaring total income of Rs. 1,63,557/- and subsequently filed another return of income on 15-01-2009 declaring total income of Rs. 11,23,860/- . Since this return of income filed on 15-01-2009 was not filed u/s 139 of the Act , proceedings were initiated u/s 147 of the Act and at the time of completion of the assessment, penalty proceedings were initiated u/s. 271(1)(c) of the Act. On the basis of information received by the Investigation Wing that the assessee and family members were receiving funds mostly from three different persons namely, Shri Rohit Kapadia, , Ms. Neeta Jain & Shri Daulat Jain. Besides this the information was also received that there were substantial cash deposits in the said accounts which were subsequently transferred to the account of the assessee or his wife Smt. Sunita Kantilal Vardhan or daughter Ms. Ruchita Kantilal Vardhan. These bank accounts were not disclosed by the assessee to the Revenue. When confronte....
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....ubsequent to such detection cannot be considered to be a voluntary disclosure. It was further observed by the AO that in the instant case there was no disclosure in the original return of income filed and in the subsequent return of income was filed which was filed beyond the time prescribed u/s 139 of the Act and that too after finding of the Revenue that the assessee was involved in undisclosed share trading activity, hence, it cannot be considered to be voluntary and sufficient compliance of law so as not to attract the penalty action u/s 271(1)(c) of the Act. Thus, the AO held that the assessee has concealed the particulars of income and deliberately furnished inaccurate particulars of income and is liable for penalty u/s 271(1)(c) of the Act. Thus minimum penalty @ 100% being Rs. 3,13,540/- was levied u/s 271(1)(c) of the Act for not only furnishing inaccurate particulars of income but also concealing correct taxable income to the extent of Rs. 9,60,303/- , vide penalty orders dated 29-06-2011 passed by the AO u/s. 271(1)(c) of the Act. 4. Aggrieved by the penalty order dated 29-06-2011 passed by the A.O. u/s 271(1)(c) of the Act , the assessee preferred first appeal before....
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....late order dated 06-11-2012 of the ld. CIT(A), the assessee is in appeal before the tribunal. 7. The ld. Counsel for the assessee , at the outset, submitted that the A.O. has levied the penalty of Rs. 3,13,540/- against the assessee u/s 271(1)(c) of the Act. It is submitted that on similar circumstances, the Tribunal in ITA No. 6180/Mum/2012, ITA No. 6181/Mum/2012 & ITA No. 6182/Mum/2012 for assessment years 2004-05 to 2006-07 vide orders dated 23rd December, 2015 in the case of assessee's sister Smt Sunita K Vardhan in appeal before the Tribunal in Smt. Sunita K. Vardhan v. ITO ordered deletion of the penalty levied u/s 271(1)(c) of the Act. The co-ordinate benches of the tribunal in the afore-stated orders held as under:- "We have considered the submissions of the parties and perused the material available on record. Undisputedly, the assessee in the present case, has filed a revised return of income offering additional income on her own before any notice was issued by the Department. However, it is the allegation of the Department that only because in an investigation conducted by the Department, it was found that assessee has not disclosed income from share transaction sh....
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.... that filing of revised return of income by the assessee offering additional income is not voluntary. Therefore, on consideration of overall facts and circumstances, we are of the view that there being no conscious or deliberate act on the part of the assessee to either conceal particulars of income or furnish inaccurate particulars of income imposition of penalty under section 271(1)(c) is uncalled for. The decision relied upon by the learned counsel also supports this view. As far as the decision of the Hon'ble Supreme Court in Mak Data Pvt. Ltd. (supra) is concerned, same is factually distinguishable. In case of Mak Data Pvt. Ltd. (supra), even after non-disclosure of income was detected by the Department, assessee did not voluntarily come forward to file any revised return of income offering additional income. Only in course of assessment proceedings on the basis of material obtained during survey when it was proved that assessee had not disclosed certain income, he came forward to offer additional income. Therefore, taking into consideration that fact, Hon'ble Supreme Court upheld imposition of penalty under section 271(1)(c). However, in the present case, undisputedly....
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....n the learned Departmental Representative was called upon to have his say on the aforesaid contention of the learned counsel, he agreed that the information obtained through investigation pertained to assessment year 2007-08 and 2008-09. Thus, this fact proves that as far as assessment year 2004-05 and 2006-07 are concerned, there are no material before the Department to indicate that assessee has not disclosed income from share transactions. Therefore, considered in the aforesaid context the explanation of the assessee that having become aware of the fact that income from share transaction have not been offered in these assessment years she voluntarily came forward to file revised return of income offering additional income appears plausible. It is also a fact on record that revised returns of income filed by the assessee are prior to issuance of any notice by the Department. It is also a fact to be taken note of that apart from the additional income offered in the revised return of income Department has not assessed any other income. In other words, the income offered in the revised return of income was accepted by the Department without any variation. It is pertinent to note her....