TaxTMI 
TaxTMI 
2023 (5) TMI 959
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....d investment u/s. 69B of the IT Act of Rs.36,50,000/- thereby assessing total income at Rs.94,50,000/-. The Assessing Officer has gone through the facts and circumstances of the case and since the assessee had admitted the undisclosed investment of Rs.36,50,000/- in the sworn statements recorded u/s 131 during the course of assessment proceedings, the Assessing Officer held that the assessee is liable to levy of penalty u/s 271(1)(c) of the I.T. Act, 1961 for concealment of income and accordingly passed the penalty order u/s 271(1)(c) of the Act on 22.07.2021 determining the penalty of Rs.11,27,850/-. 3. In appeal, the learned CIT (A) sustained the penalty levied by the Assessing Officer by observing as under: "6. Decision: The issue in this appeal is levy of penalty of Rs.11,27,850/- u/s 271(1)(c) of the Act for concealment of income. Going into the facts of the case, the appellant individual has filed the Return of Income for A.Y.2015-16 on 30.09.2015 admitting total income of Rs.8,50,600/-. A search and seizure u/s. 132 of the IT Act was conducted in the case of Mytrah Energy group on 30.08.2017 and the appellant was also covered u/s. 132 of the 1T Act. Accordingly notice....
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....icer or the Commissioner (Appeals) or the Commissioner to be false, or B) Such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed." 7. The AO, in our view, shall not be carried away by the plea of the assessee like voluntary disclosure", "buy peace", "avoid litigation", "amicable settlement", etc. to explain away its conduct. The question is whether the assessee has offered any explanation for concealment of particulars of income or furnishing inaccurate particulars of income. Explanation to Section 271(1) raises a presumption of concealment, when a difference is noticed by the AO, between reported and assessed income. The burden is then on the assessee to show otherwise, by cogent and reliable evidence. When the initial onus placed by the expla....
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.... income Tax Act, 1961. ................" The Hon'ble ITAT, Rajkot in the case of M/s. Kashish Enterprise in ITA No. 256/Rajkot/20 14 dated 15.10.2018 held as under: "8. We have heard the rival contentions and perused the materials available on record The facts of the case as discussed above are not in disputed therefore we are inclined not to repeat the same for the sake of brevity and convenience. 8.1 It is a fact on record, the assessee did not disclose the income voluntarily but it was disclosed in pursuance to the survey conducted u/s 133A of the Act. During the course of survey, certain documents were found and seized which were sufficient enough to make the addition in the hands of the assessee. Therefore, the assessee has disclosed income of Rs. 53, 09,666/-. Thus, in our considered view had there not been Survey u/s 133A of the Act. the assessee would not have offered such undisclosed income. Therefore, in our considered view, the penalty u/s 271(1)(c) of the Act was correctly levied by the authorities below. In this regard, we also find support and guidance from the judgment of Hon'ble Jurisdictional High Court in the case of L.M.L. Precision Engineering Ltd. Vs.....
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.... if any, payable by him, a sum which shall not be less than, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or fringe benefits or the furnishing of inaccurate particulars of such income or fringe benefits.......... Explanation 5A.......... Where, in the course of a search initiated under section 132 on or after the 1st day of June, 2007, he assessee is found to be the owner of ...... (i) any money, bullion, jewellery or other valuable article or thing (hereafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilizing (wholly or in part) his income for any previous year; or (ii) any income 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 d....
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....ot disclosed in the return of income. During the appeal proceedings, the appellant submitted that the payments made in this regard are out of admitted income on which taxes were paid. The appellant had clearly deviated from his sworn statement where he stated that the amounts were not disclosed in the return of income. Further, the appellant did not provide any documentary evidence showing that the payments were out of nis admitted income in the returns s of incomes. In view of the above discussion, the A0 is correct in concluding the above investment of Rs. 6,00.000/- is concealed and levying penalty thereof. Similarly, the appellant had purchased a property Unit No. G-01, San Diego, Koramanmgala, Bangalore for Rs. 50,00.000/- as seen from the seized material vide Annexure A/SSR/0l. page no. 7. The said page also denoted that the payments were already made in three instalments. The appellant later executed a sale deed and the said property as registered for Rs. 19,50,000/-, With regard to the same, sworn statements u/s 131 were recorded during the assessment proceedings on 26.11.2019 and 19.12.2019. the relevant extract is as under: "Q.No.40. Please go through the answer to qu....
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.... return u/s 139 and also return u/s 153A. It was only during the assessment proceedings consequent to Search u/s 132, the undisclosed income was admitted. In view of the above discussion, the action of the Assessing Officer for levy of penalty is hereby confirmed in view of the detailed discussion in the preced1ng paragraphs, it is held that the appellant had income or investment particulars that were concealed and the decision of AO in determining the concealment of income particulars and levying penalty of Rs. 11,27,850/- is upheld and accordingly the ground no. 3,4 and 5 are dismissed " 4. Aggrieved with such order of the learned CIT (A) the assessee is in appeal before the Tribunal by raising the following grounds: "1. The order of the Hon'ble CIT (A) is erroneous both on facts and in law. 2. The order of the Hon'ble CIT (A) is erred in confirming levy of penalty u/s 271(1) (c) of Rs.11,27,850/- and further erred in confirming the observations of the Assessing Officer that there is concealment of income. 3. Without prejudice, the Hon'ble CIT (A) erred in confirming the penalty of Rs.11,27,850/- on facts of the case; 4. Any other ground or grounds that may b....
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....uments made by both the sides, perused the orders of the AO and the learned CIT (A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us by both sides. We find the assessee in the instant case had filed the original return of income disclosing total income of Rs. 8,50,600/-. After the search was initiated u/s. 132 of the I.T.Act in the case of assessee and his group concerns on 30.08.2017, the assessee, in response to the notice u/s. 153A filed the return of income declaring total income of Rs. 58,00,600/-. The AO completed the assessment u/s. 143(3) r.w.s. 153A determining the total income of the assessee at Rs. 94,50,600/- wherein he made addition of Rs. 36,50,000/- on account of undisclosed investment u/s. 69B. We find the assessee accepted the said income and no appeal was filed. Subsequently, the AO initiated penalty proceedings and levied penalty of Rs. 11,27,850/- on account of addition of Rs.36,50,000/-, the details which are as under:- (i) Undisclosed investment u/s. 69B, being payments Rs.6,00,000 (ii) Undisclosed investment u/s. 69B, being on-money paid towards purchase of property at Bangalore Rs.30,....