AI Drafter 
TaxTMI 
TaxTMI 
2020 (1) TMI 352
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....disclosing total income at Rs. 5,82,150/- and for the assessment year 2011-2012 the assessee filed his return of income on 26.08.2011 declaring total income at Rs. 7,37,250/-. A search and seizure action u/s.132 of the Act was conducted against the assessee on 03.09.2015 in the business premises of Companies at Cuttack and residential premises of the Directors at Cuttack and Bhubaneswar and residential premises of above assessee at Talcher. In consequence to that search, the AO issued notice u/s.153A of the Act and in pursuance to the same the assessee filed his return of income on 16.02.2017 disclosing total income of Rs. 5,82,279/- and revised return was filed on 21.11.2017 disclosing total income of Rs. 6,45,586/-. Similarly, the assessee in pursuance to notice u/s.153A of the Act filed his return of income for the assessment year 2011-2012 on 16.02.2017 disclosing his total income at Rs. 7,11,720/- and revised return was filed on 21.11.2017 declaring total income at Rs. 7,91,720/-. During the course of assessment proceedings, the AO found that the assessee has disclosed additional income of Rs. 1,00,000/- under the head professional income as compared to the income disclosed in....
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....ore the date of search for A.Y.2010-2011 & 2011-2012, therefore, the provisions of section 271(1)(c) r.w. Explanation 5A are applicable. It was also the contention of ld. DR that the assessee has not given any reasonable cause as to why the additional income was not disclosed earlier. Accordingly, ld. DR submitted that the penalty imposed by the AO and confirmed by the CIT(A) deserves to be upheld for the both the assessment years under appeals. 8. After considering the submissions of both the parties and perusing the entire material available on record, we find that in consequence of search, the AO issued notice u/s.153A of the Act and in response to which the assessee filed his return on 16.02.2017 declosing total income of Rs. 5,82,279/- and subsequently it was revised on 21.11.2017 disclosing total income of Rs. 6,45,586/- for A.Y.2010-2011 and Rs. 7,91,720/- for A.Y.2011-2012. During the course of assessment proceedings, the AO found that the assessee has disclosed additional income of Rs. 1,00,000/- under the head professional income and Rs. 50,000/- as unexplained investment as compared to the income disclosed in the return filed u/s.139(1) of the Act for A.Y.2010-2011 an....
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....e heard analogously and disposed off by this consolidated order. For the sake of convenience, we shall take into consideration the facts mentioned in ITA No.42/CTK/2019 for the assessment year 2012-2013 for deciding all the appeals. 12. Brief facts of the case are that the assessee was working in Government of Odisha as a Doctor and also engaged in private practice in nursing home of his wife Smt. Ranjita Jena in the name of 'Jena & Jena Nursing Home' and filed his original return of income on 21.09.2012 for the assessment year 2012-2013 disclosing total income at Rs. 7,43,880/-. A search and seizure action u/s.132 of the Act was conducted against the assessee on 03.09.2015 in Cuttack Hospitals (P) Limited and group of cases and residential premises of the above assessee. In consequence to that search, the AO issued notice u/s.153A of the Act and in pursuance to the same the assessee filed his return of income on 16.02.2017 disclosing total income of Rs. 8,74,000/- . During the course of assessment proceedings, the AO found that the assessee has disclosed his income of Rs. 8,74,000/- in the return filed u/s.153A of the Act, whereas the assessee has shown total income in the retu....
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....ed before the date of search for the assessment years under consideration, therefore, the provisions of section 271(1)(c) r.w. Explanation 5A are applicable. It was also the contention of ld. DR that the assessee has not given any reasonable cause as to why the bank interest and long term capital gain/short term capital gain was not disclosed earlier. Accordingly, ld. DR submitted that the penalty imposed by the AO and confirmed by the CIT(A) deserves to be upheld for the both the assessment years under appeals. 17. After considering the submissions of both the sides and perusing the entire material available on record, we find that the AO in the assessment has initiated penalty u/s.271(1)(c) of the Act on the differential amount disclosed in the return of income filed u/s.153A of the Act by the assessee without mentioning either of the two limbs as provided under the provisions of Section 271(1)(c) of the Act i.e. for concealment of particulars of income or for furnishing of inaccurate particulars of such income. Thereafter in the penalty order dated 28.06.2018, also the AO while levying penalty u/s.271(1)(c) of the Act has used both the expression. For more clarification, we w....
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....itiated and, therefore, is not sustainable. In this regard, we would like to place reliance on the decision of Hon'ble Gujarat High Court in the case of Snita Transport Pvt. Ltd., 42 taxmann.com 54, wherein it is held that while passing final order, the AO has to record a specific finding accepting the fact that penalty is being imposed for concealment of particulars of income or for furnishing of inaccurate particulars of such income. The relevant observations of the Hon'ble Gujarat High Court at para 9 read as under:- "9. Regarding the contention that the Assessing Officer was ambivalent regarding under which head the penalty was being imposed namely for concealing the particulars of income or furnishing inaccurate particulars, we may record that though in the assessment order the Assessing Officer did order initiation of penalty on both counts, in the ultimate order of penalty that he passed, he clearly held that levy of penalty is sustained in view of the fact that the assessee had concealed the particulars of income. Thus insofar as final order of penalty was concerned, the Assessing Officer was clear and penalty was imposed for concealing particulars of income. In li....
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....) and other cases relied upon by the assessee, the return of income filed pursuant to the notice u/s 153A takes the place of the return filed u/s 139(1) which was validly revised by the assessee even before any defect was pointed out by the learned AO. In such circumstances, in view of the decision in the case of CIT vs Reliance Petro Products P. Ltd. (2010) 322 ITR 158 (SC), no penalty could be levied. 16. Lastly, when the revised return is accepted and the income is assessed as per the revised income, there is no scope for penalty. In the case of Kirit Dahyabhai Patel vs ACIT, (2017) 80 Taxmann.com 162 (Guj), the Hon'ble High Court held that in view of specific provision of Section 153A, the return of income filed in response to notice u/s 153A is to be considered as return filed u/s 139, as the AO has made assessment on the said return and, therefore, the return has to be considered for the purpose of penalty u/s 271(1)(c) of the Act and the penalty is to be levied on the income assessed over and above the income returned u/s 153A, if any. Admittedly, in this matter both the returned income and the assessed income are nil. On this ground also, we cannot sustain the ....