2022 (11) TMI 306

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....leting the penalty levied u/s 271(1)(C) of the Act of Rs. 72,30,600/- without appreciating the fact that the assessee disclosed unaccounted income of Rs.2.34 crores during the survey action u/s 133A of the Act conducted on the assessee. 2. On the facts and circumstances of the case, the Ld.CIT (Appeals) failed to appreciate the fact that the disclosed unaccounted income was never part of books of accounts of the assessee & had there been no survey action on the assessee, the income of Rs. 2.34 crores would have escaped assessment and therefore, the income declared in the return of income filed after the date of survey cannot be considered as 'voluntary'. 3. On the facts and circumstances of the case, the Ld.CIT (Appeals) e....

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...., Ward-2(2), Pune ('the Assessing Officer') vide order dated 31.03.2016 passed u/s 143(3) of the Act at a total income of Rs.3,05,47,900/-. The Assessing Officer also issued a notice u/s 271(1)(c) initiating the penalty proceedings alleging that the respondent-assessee is guilty of concealment of particulars of income. In response to show-cause notice, the respondent-assessee filed an explanation stating that the respondent-assessee is not guilty of concealment of particulars of income nor furnishing inaccurate particulars of income. Since the income declared during the course of survey operation proceedings by assessee was disclosed in the revised return of income placing reliance on the decision of Hon'ble Delhi High Court in the case of ....

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....-assessee is guilty of concealing the particulars of income. The ratio laid down by the Hon'ble Supreme Court in the case of MAK Data (P.) Ltd. vs. CIT, 358 ITR 593 (SC) has no application to the facts of the present case. 7. On the other hand, ld. AR submits that the respondentassessee is not guilty of furnishing inaccurate particulars of income for the reason that an item of income with reference to which the penalty was levied, was already included in the return of income. The ratio of the decision of the Hon'ble Supreme Court in the case of MAK Data (P.) Ltd. vs. CIT, 358 ITR 593 (SC) is squarely applicable to the facts of the present case. 8. We heard the rival submissions and perused the material on record. The issue in the pres....

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....ntended by the learned counsel for the respondent. 16. No doubt, the discrepancies were found during the survey. This has yielded income from the assessee in the form of amount surrendered by the assessee. Presently, we are not concerned with the assessment of income, but the moot question is to whether this would attract penalty upon the assessee under the provisions of section 271(1)(c) of the Act. Obviously, no penalty can be imposed unless the conditions stipulated in the said provisions are duly and unambiguously satisfied. Since the assessee was exposed during survey, may be, it would have not disclosed the income but for the said survey. However, there cannot be any penalty only on surmises, conjectures and possibilities. Se....