AI Drafter 
TaxTMI 
TaxTMI 
2017 (12) TMI 473
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....the fact that explanation 5A of Section 271(1) was inserted by the Finance Act, 2009, w.e.f. 1.6.2007 which is after the assessment year in question. (B) The assessee craves leave to add, alter or amend the grounds of appeal at and before the hearing. 2. The brief facts of the case are that a search and seizure operation was conducted at the premises of the Bestech group on 07.02.2008. Assessee was also covered. In this case survey operations u/s. 133A(1) of the Income Tax Act, 1961 (hereinafter referred as the Act) were also conducted simultaneously in the premises of some of the members of the group. Assessment u/s. 153A(1)(b) of the Act was completed on a total income of Rs. 3,25,98,240/- on 17.7.2009, which happened to be the income returned u/s. 153A of the Act. Penalty proceedings were initiated culminating into levy of penalty of Rs. 2,36,000/- @ the minimum rate of 100% vide order dated 19.03.2010 passed u/s. 271(1)(c) of the Act. 3. Against the above Penalty Order dated 19.3.2010 passed by the Assessing Officer, assessee appealed before the Ld. First Appellate Authority, who vide impugned order dated 09.7.2014 has dismissed the appeal of the assessee. 4. ....
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....section 139 of the Act [refer clause (a) of section 153(A)(91)]. Further, concealment/furnishing of inaccurate particulars of income/undisclosed income, has to be necessarily seen vis-a-vis return filed by the appellant, once, income itself is declared which is accepted as such under section 139 r.w.s. 153A of the Act, then, the question of there being concealment/furnishing of inaccurate particulars of income/undisclosed income, does not arise at all. In the present case, the entire undisclosed income has been offered for tax by the appellant in the return of income, which was subject matter of assessment before the Assessing Officer. The return filed by the appellant has been accepted as such by the learned Assessing Officer, without any variation. Therefore, in the absence of any undisclosed income being found in the assessment vis-a-vis the return filed, the issue of imposition of penalty does not arise. Thus the Assessing Officer is erred in imposing the penalty on the assessee. It is well established principle that law prevailing on the date of filing of return is applicable for imposition of penalty. In the present case for the assessment year 2007-08, though the first two c....
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....g of inaccurate particulars of income/undisclosed income, does not arise at all. In the present case, the entire undisclosed income has been offered for tax by the appellantcompany in the return income, which was subject matter of assessment before assessing officer. The return filed by the appellant has been accepted as such by your assessing officer, without any variation. Therefore, in the absence of any undisclosed income being found in the assessment vis-a-vis the return filed, the issue of imposition of penalty does not, arise. 5.3 The reliance is placed on the following decision in this regard. i) It has been held in the decision of the Delhi Bench of the Tribunal in the case of Prem Arora vs. DCIT in (2012) 78 DTR (Del)(Trib)91 wherein the Tribunal held that where returned income filed u/s. 153A is accepted by the assessing officer, there will be no concealment of income and consequently penalty u/s.271(l )(c) cannot be imposed. ii) In CIT vs. SAS Pharmaceuticals (2011) 3351TR 259, Hon'ble Delhi High Court held -"It necessarily follows that concealment of particulars of income or furnishing of inaccurate particulars of income by the assessee h....
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....levied where the revised return had been accepted and assessed at the hands of the appellant although the revised returns had been fled after a search under section 132 of the Act and after a notice had been under section 148 of the Act. v) Rajiv Garg 175 Taxman 184 (P&H) in the return filed in pursuance to notice under section 148 of the Act the appellant revised its claim one instead of offering for tax the amount of capital gain, he offered the entire sale proceeds as income. Such additional income offered was assessed to tax. Therefore, the finally assessed income was the same as income declared by the appellant in the return filed in response to the notice issued under section 148 of the Act. The Court, while affirming the order of the Tribunal deleting penalty, observed that undeniably the notice, under section 148 of the Act was issued on 21-3-2003 and the appellant filed its return on 30-4-2003. The CTT(A) has recorded a finding that the enquiries conducted by the DDTT (bn.), Gurgaon regarding the nature of transaction, sale and purchase of shares carried out through the broker Shri S.S. Mehta enabled the Assessing Officer to hold the capital gain as bogus....