TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 1140
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....arch operation and notice under section 153A was issued to the assessee, and in response to this notice, he filed return of income on 24.1.2013 declaring total income at Rs. 7,73,820/-. Notice under section 143(2) was issued and served upon the assessee. Thereafter, the ld.AO passed assessment order on 24.3.2014 under section 143(3) r.w.s. 153A of the Act. He found that the assessee has shown short term capital gain at Rs. 6,28,035/-. There was difference of opinion between the assessee vis-à-vis the AO qua cost of acquisition taken for this property. The assessee took cost of acquisition at Rs. 44,38,650/- which has been scaled down by the AO at Rs. 43,33,350/-. Accordingly, he made an addition of Rs. 1,05,300/-. The discussion made by the AO in this aspect read as under: "5. During the course of assessment proceedings, it was noticed that the assessee has shown short term capital gain of Rs. 6,28,035/- on sale of flat. In the working of short term capital gain, the assessee has taken cost of acquisition at Rs. 44,38,650/-. However in the submission of the assessee, it was found that the assessee has incurred total expenses towards purchase of said flat of Rs. 43,33,350....
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....long term capital gains as per return .... Rs.3,31,162/- III Income from other sources ..... Rs.1,56,970/- Total income as per return ..... Rs.6,85,477/- Rounded off ..... Rs.6,85,480/- Assessed Income .... Rs.6,85,480/- 5. The AO has initiated penalty proceedings under section 271(1)(c) of the Act in both the assessment years. 6. With regard to Asstt.Year 2010-11, he observed that since the assessee has not filed return under section 139 of the Act, therefore, the income declared in response to the notice under section 153A is to be construed as representing concealed income. Hence, on the addition of Rs. 6,85,480/- he considered that the assessee has concealed particulars of income. He imposed a penalty of Rs. 93,829/-. Appeal to the ld.CIT(A) did not any relief to the assessee. 7. Similarly, he imposed penalty of Rs. 35,540/- qua the addition made to the income of the assessee in the Asstt.Year 2008-09. 8. With the assistance of the ld.representatives, we have gone through the record carefully. Before dealing with the issue, whether penalty is imposable upon the assessee or not, we have to appraise ourselves as to how income....
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....based on any entry in any books of account or other documents or transactions and he claims that such entry in the books of account or other documents or transactions represents his income (wholly or in part) for any previous year, which has ended before the date of search and,- (a) where the return of income for such previous year has been furnished before the said date but such income has not been declared therein; or (b) the due date for filing the return of income for such previous year has expired but the assessee has not filed the return, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income." 10. We have considered this aspect in the case of Shri Mansukhbhai R. Sorathia and others Vs. JCIT, Rajkot in ITA No.46/RJT/2012 and others. We deem it pertinent to take note of discussion made by the Tribunal on this issue in this order: "8. A perusal of both these sections together would indic....
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....of imposition of penalty under clause (c) of sub-section (1) of this Section be deemed to have been concealed particulars of income or furnished inaccurate particulars. The moot question for attracting this explanation is that in the course of search money, bullion, jewellery or income based on any entry in the books of accounts or other documents ought to have been found. In a given situation, no money or bullion or jewellery or income might have found from the assessees for the assessment years which were not part of "specified previous year" contemplated in section 271AAA or immunity available to the assessees under sub-clause (a) and (b) of Explanation 5A, then also, if in response to the notice under section 153A, the assessee disclosed some additional income voluntarily, would he be deemed to have concealed the income for visiting him with penalty under section 271(1)(c) of the Act ? The ld.Revenue authorities had drawn inference that since the assessee has not disclosed additional income in the original returns, meaning thereby, it is to be assumed that they have disclosed this amount only when some incriminating material was found. To our mind this assumption ought to be su....