2023 (3) TMI 93

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....ter referred to as "the Act") relevant to the Assessment Year 2015-16. 2. The only issue raised by the assessee is that the learned CIT(A) erred in confirming the levy of penalty under section 271(1)(c) of the Act. 3. The facts in brief are that the assessee is an individual and engaged in the profession of advocacy and practicing in Hon'ble Supreme and various other courts of India. In the return filed under section 139 of the Act for the year, the assesse declared income at Rs. 4,03,78,080/- under the head income from profession, STCG and other income. The case of assessee was selected under limited scrutiny under section 143(2) of the Act. During the assessment, the assessee vide letter dated 18-08-2017 submitted that due to oversi....

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....y after once it was detected by the department. Had there not been any scrutiny, the impugned receipt should have evaded from tax. The AO also found that it is the duty of the assessee to disclose true income. The assessee did not disclose the income on account of impugned professional receipt but claimed the credit of tax deducted by the payee. The AO also found that the assessee emphasized on mens rea, however the element of means rea has been done away by inserting the explanation to the provision of section 271(1)(c) of the Act. The explanation to section 271(1)(c) provides that any addition made to the total income shall be deemed as concealment of income unless the assessee furnishes explanation and proves that such explanation is bon....

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.... law that the penalty proceedings are different from assessment proceedings. In the penalty proceeding, the burden lies on the revenue to prove that the assessee has concealed income or furnished inaccurate particular of income. In holding so, I find support and guidance from the judgment of Hon'ble Madhya Pradesh High Court in case of CIT vs. Suresh Chandra Mittal reported in 241 ITR 124 where it was held as under: It is well-settled that under section 271(1)(c), the initial burden lies on the revenue to establish that the assessee has concealed the income or has furnished inaccurate particulars of such income. The burden shifts to the assessee only if he fails to offer any explanation for the undisclosed income or offers an expla....

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....h was omitted due to oversight without being any mala fide intention. As such, the AO only on the basis of presumption and surmises held that the assessee offered income only after same has been identified by the department. Such presumption of the AO is not based on any material. Therefore, in this fact and circumstances it cannot be held that the assessee has concealed or furnished inaccurate particulars of his income and liable to penalty under section 271(1)(c) of the Act. In holding so, I also fine support and guidance from the judgment of Hon'ble Gujarat High Court in case of PCIT vs. Gujarat State Electricity Corporation Ltd. reported in 144 taxmann.com 165 where the Hon'ble court held that in no penalty can be imposed where the asse....