TaxTMI 
TaxTMI 
TaxTMI 
2017 (5) TMI 1679
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....been confirmed by Ld CIT(A) and hence these assessees have filed these appeals challenging the orders passed by Ld CIT(A). 3. The facts relating to the case are discussed in brief. The Indian Government collected details of Indians who held bank accounts in HSBC Bank, Geneva, Switzerland which were not disclosed to Indian tax authorities. The French authorities furnished details (referred to as "Base Note") wherein the account details such as Name, Date of birth, Place of birth, Sex, Residential address, profession, Nationality, date of opening of the bank account in HSBC Bank and amount of balance in that particular year etc were given. It was noticed that Shri Kumar S Nathani was having a bank account. Consequent to the said information, the revenue carried out search and seizure operations in the hands of Shri Kumar S Nathani u/s 132 of the Act on 21-09-2011. Simultaneously survey operations u/s 133A of the Act was carried out in the hands of certain firms. In the statement taken from Shri Kumar S Nathani, he admitted that the bank account was held by him jointly with another person named Shri Roop Kishanchand Khemani and it belongs to them in the ratio of 30:70. Shri Kumar su....
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....u/s 271AAA of the Act in the hands of Shri Roop Kishanchand Khemani and the penalties levied u/s 271(1)(c) of the Act in the hands of both the assessees herein. 7. We shall first take up the appeal filed by Shri Roop Kishanchand Khemani challenging the penalty levied u/s 271AAA of the Act for assessment year 2012- 13. The Ld A.R submitted that the penalty u/s 271AAA can be levied only in the hands of the person who has been subjected to search. He submitted that the search was conducted in the hands of Shri Kumar Satur Nathani only and not in the hands of Shri Roop Kishanchand Khemani. Accordingly he submitted that the very levy of penalty u/s 271AAA is beyond the scope of the said provisions. The Ld A.R submitted that Shri Kumar Satur Nathani has admitted the income in his hand and also in the hands of Shri Roop Kishanchand Khemani u/s 132(4) of the Act and hence the benefit of the provisions of sec. 271AAA(2) should also be extended to the assessee. He submitted that identical penalty levied in the hands of Shri Roop Kishanchand Khemani u/s 271AAA of the Act has since been deleted by the co-ordinate bench of Tribunal, vide its order dated 17-03-2017 passed in ITA No.4160/Mum/20....
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....the Ld D.R contends that the search conducted in the hands of Shri Kumar Satur Nathani should be extended, yet we are unable to agree with the said contentions, since the provisions of sec. 132 of the Act shall apply only in respect of persons in whose case the search warrant was issued. Under the Act, a partnership firm and its partners are treated as separate taxable persons. In any case the revenue has carried out survey operations only u/s 133A of the Act in the hands of the partnership firms. Hence, in the absence of search operation u/s 132 of the Act in the hands of Shri Roop Kishanchand Khemani, we are of the view that the assessing officer has misdirected himself in levying penalty u/s 271AAA of the Act. We also notice that the penalty levied u/s 271AAA of the Act in the hands of Shri Kumar Satur Nathani (searched person) has been deleted by the co-ordinate bench, vide its order referred supra. In any case, we are of the view that the assessee cannot be considered to have been subjected to search and hence we set aside the order passed by Ld CIT(A) and direct the AO to delete the penalty levied u/s 271AAA of the Act in the hands of Shri Roop Kishanchand Khemani. 11. We s....
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....formation was relating to US $ 751747, the assessees offered US $ 13,36,000/-. He submitted that the impugned assessments have been made u/s 153A/153C of the Act accepting the return of income filed by the assessees admitting the additional income. He submitted that, at the time of initiation of search, the assessment year 2007-08 has fallen in the category of completed assessment and hence the original assessment does not abate as per the provisions of sec. 153A of the Act. He submitted that the completed assessment could be disturbed only on the basis of incriminating material found during the course of search from the assessees. He submitted that, in the instant cases, no incriminating material was found during the course of search and the additional income was offered by the assessees on the basis of some external information procured by the revenue. Accordingly he submitted that the additional income offered by the assesses should be considered as voluntary one and not on the basis of any incriminating materials found during the course of search, since the assessments have been completed u/s 153A of the Act. Since there is no difference between the returned income and assessed....
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....io of 30:70, which has also been accepted by the revenue. Both the assessees have submitted that the income was earned prior to 2003, but agreed to offer the same in AY 2007- 08 in order to co-operate with the revenue. In order to prove the correctness of their statement, both the assessees have give no-objection to the revenue to collect the bank transaction details from the HSBC Bank, Geneva. He submitted that the bank would not be giving the details without no-objection certificate from the account holders. The action of the assessees in giving no-objection certificate to the AO would vindicate their statements. Accordingly he submitted that the explanations given by the assessee have not been found to be false and hence no penalty could have been levied by the AO u/s 271(1)(c) of the Act in the hands of both the assessees. He further submitted that income voluntarily offered in the statement has been disclosed in the return of income also and hence no penalty shall be leviable in such kind of situation as held by Hon'ble Delhi High Court in the case of SAS Pharmaceuticals (335 ITR 259). 17. The Ld D.R, however, submitted that the provisions of Explanation 5A has been discusse....
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....so as to assess the same u/s 153A of the Act. 20. The Ld D.R further submitted that voluntary offer of income would not absolve the assessee from the penalty, when the relevant materials were confronted by the revenue. In support of this proposition, the Ld D.R placed here reliance on the decision rendered by Hon'ble Supreme Court in the case of MAK Data Vs. CIT (359 ITR 593) and the decision rendered by Hon'ble jurisdictional Bombay High Court in the case of Samson Maritime Ltd Vs. CIT (ITA No.1718 of 2014 dated 09-03-2017). The Ld D.R further submitted that the Pune bench of Tribunal has examined the scope of Explanation 5A to sec 271(1)(c) of the Act in the case of Mrs. Sarita Kaur Manjeet Singh Chopra Vs. ITO (ITA No.1562/PN/2013 dated 30-10-2015) and almost on identical facts, the penalty has been confirmed. The Ld D.R also placed reliance on the decisions rendered in the case of CIT Vs. Usha International ltd (ITA 1696/2006 - Delhi HC) and CIT Vs. Dr. Sajjan Singh Malik (P & H HC 47 taxmann 264). 21. With regard to the claim of the assessee that the assessing officer has initiated penalty proceedings under one charge and levied penalty under other charge, the Ld D.R submi....
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....the Ld A.R submitted that the submissions of the assessee that the deposits belong to the two assessees herein in the ratio of 30:70 was accepted by the AO belatedly and hence he has disclosed the additional income in the revised return of income, after its acceptance. However the relevant tax was paid by that assessee before the issuing of notice u/s 153C of the Act. 23. We have heard rival contentions and perused the record. We shall first deal with the legal issues urged by the assessee. We are rendering our decision after duly considering the contentions of Ld D.R also with regard to the legal issues. It is the contention of the assessee that the assessing officer has initiated penalty proceedings under one limb of the penalty provisions, but levied penalty under another limb, i.e., the AO has initiated penalty proceedings for concealing the particulars of income, but levied penalty for "concealing income and furnishing inaccurate particulars of income". Though it is contended by Ld D.R that the AO has stated both the charges in the penalty order, yet the fact remains that there is no clarity in the action of the AO. In fact, the furnishing of inaccurate particulars of income....
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....t all these details from HSBC, Geneva. The AO has not discussed anything about the results of his enquiry, which has been interpreted by the assessees as acceptance of their explanations. In the absence of any contradictory findings, it may be presumed that the explanations of the assessee may be right. In that case, these additional income have been earned by the assessees prior to 2003 and hence the voluntary offer made in AY 2007-08 would not give rise to penalty, as the concerned income does not belong to that year. This view is supported by the decision of Delhi bench of Tribunal rendered in the case of Dr. Kaushal Goel (supra). 26. The Ld A.R also contended that the impugned addition could not have been made in sec. 153A assessments, since the material was an external material. The Ld D.R, on the contrary, submitted that the sworn statement given by the assessee u/s 132(4) shall constitute sufficient material. The year under consideration, i.e., AY 2007-08 was concluded assessment and the same can be disturbed only on the basis of incriminating material found. Thus we notice that the question of assessing the impugned income in a 153A assessment in AY 2007-08, in the facts ....