TaxTMI 
TaxTMI 
2017 (9) TMI 1226
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....s placed by the revenue as well as the contention of the respondent assessee that the evidence found during the survey or the evidences placed on record do not justify any enhancement calculation and that income of Rs. 12,000 per day is just an estimate without basis of foundation and is not supported by any material. The Hon'ble high court clarified that the observation made in the order of the Hon'ble high court for the purpose of disposal of the present appeal and the tribunal will independently apply its mind to all factual issues and contentions. Therefore in view of the direction of the Hon'ble high court this issue is required to be decided afresh. 4. The assessee is a doctor and practicing psychiatrist at New Delhi. During the year under consideration the assessee has shown the gross professional receipt of Rs. 3203134 and declared that profit of Rs. 2344629, as per profit and loss account filed with the return of income of the assessee. The assessee filed its return of income declaring total income of Rs. 303750/- on 01/11/2004. Subsequently the survey under section 133A of the income tax act, 1951 of conducted on the business premises of the assessee on 16/12/2004. Subse....
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....e penalty allowing the appeal of the assessee for the reason that though the assessing officer has attempted to work out the income of the assessee at Rs. 12,000 daily receipt for to written 61 days, that is only an estimate which does not match with the income declared by the assessee. On the facts and circumstances of the case in the opinion of the coordinate bench the surrender by the assessee was before any detection or investigation done by either the survey Timor the assessing officer. It was further held by the coordinate bench that it was also not based on any record found during the search. Therefore, we fact that there is been a survey under section 133A, without any material on record justify the existence of concealment of income the penalty for concealment cannot be levied if the assessee surrenders the income before the assessing officer. Therefore, the coordinate bench held that levy of penalty in the aforesaid facts and circumstances of the case are not justified. 7. Revenue aggrieved with the order of the coordinate bench preferred the appeal before the Hon'ble high court wherein Hon'ble high court was pleased to remand the matter back to the file of the tribunal.....
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....ppeal as well as the Hon'ble high court have held that the assessee is liable for penalty. 10. We have carefully considered the rival contentions. Admittedly, the assessee has disclosed the additional income in its return of income only after the survey was carried out by the revenue authorities. The identical the identical question before the Hon'ble Gujarat High Court in case of CIT versus Girish Devcahnd Rajani in ITA number of 13 of 2013 dated 18/03/2013 wherein Hon'ble Gujarat High Court held as under:- "Revenue is in appeal against the judgment of the Income Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal') dated August 03, 2012. The following questions have been presented for our consideration : (a) Whether in the circumstances and the facts of the case and in law, the Appellate Tribunal is right in deleting the penalty levied by the Assessing officer levied by the u/s.271(1)(c) of the Act amounting to Rs. 1261050/- ? (b) Whether in the circumstances and the facts of the case and in law, the Appellate Tribunal has failed to appreciate the fact that the assessee filed revised return only after the case was selected for scrutiny and after issu....
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.... Vs. Shankerlal Nebhmal Uttamchandani 311 ITR 327 (Guj.) has held that revised return filed before the detection of concealment, in such case no penalty is leviable. Respectfully following above decision & in view of the above discussion, the penalty levied by the AO of Rs. 12,61,050/- is hereby ordered to be cancelled. The Revenue carried such order of CIT (Appeals) before the Tribunal. The Tribunal by the impugned judgment rejected Revenue's appeal. The Tribunal made the following observations : 6. Having heard the ld.D.R., we have carefully gone through the orders of authorities below. The assessee before the AO has submitted that to buy peace as assessee was disturbed after death of his brother and to avoid any protracted litigation with the department he opted filing revised return of income on 1st February, 2007 by offering further income of Rs. 37,00,000/- over and above income offered in the original return of income. This covers loan taken by him from various persons of Rs. 19,00,000/- as well as further amount to cover error of omission and commission and other discrepancy if any. The reason given for filing revised return was that most of the business was looke....
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....cord to indicate that the aforesaid finding of the Tribunal is incorrect in any manner whatsoever. Furthermore, the Tribunal has also noted as a matter of fact that the very same amounts standing to the credit of the bank accounts of various family members had already been assessed by the departmental authorities along with interest in the hands of the family members and it was also an admitted position that those family members have nowhere admitted that the family members were benamidars of the assessee. In the present case also, it is not the case of the Revenue that the assessee filed revised return since some of the details of inaccurate particulars of the income were detected by the Assessing Officer during the course of assessment. In our opinion, the Tribunal therefore committed no error. We may, however, clarify that we should not be seen to have approved the observation of the CIT (Appeals) to the effect that once the revised return was filed within the time limit prescribed under Section 139(5) of the Act, there could be no penalty because the liability to penalty and filing of the revised return are mutually exclusive and that if the case falls within the scope of....