2023 (9) TMI 752

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....4-15. 2. The assessee has taken the following grounds of appeal:- "1. The order passed by the learned Commissioner of Income-tax (Appeals) confirming the penalty u/s. 271(1)(c) of the Act is bad in law and contrary to the provisions of law and facts. It be so held now and the order passed by the learned Assessing Officer levying penalty of Rs. 3,15,000/- as confirmed by the Commissioner of Income-tax (Appeals) be quashed. 2. The learned Commissioner of Income-tax (Appeals) erred in law and on facts in confirming penalty u/s. 271(1)(c) of the Act for a sum of Rs. 3,15,000/- in spite of the facts that the donation made by the appellant was genuine, was made through the banking channel was made to a registered trust and wa....

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....aid From No. 36 and grounds of appeal relating to the present appeal were misplaced by him inadvertently. Further, during the month of March 2021, when the Vivad Se Vishwas Scheme was to come to an end, the assessee required about the possibility of settlement of said appeal before ITAT to be covered under the VSV Scheme on the belief that appeal is pending before ITAT Ahmedabad. However, it was only then that it was discovered that there had been a lapse in filing of the present appeal by Shri Gaurang C. Trivedi and thereafter, appeal was filed with immediate effect before ITAT Ahmedabad. Looking into the facts leading to delay in filing of the present appeal, we are of the considered view that delay in filing of the present appeal has bee....

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....dingly, the Assessing Officer held that the assessee had furnished inaccurate particulars of his income and thereby concealed income of Rs. 10,50,000/- to evade legitimate tax. Accordingly, penalty amounting to Rs. 3,15,000/- being 100 % of tax on income concealed of Rs. 10,50,000/- was levied on the assessee. The appeal against the 271(1)(c) order passed by Assessing Officer, was upheld by the CIT(A) with the following observations:- "In instant case, there is specific finding by the A.O. as much as notice u/s. 148 was issued, the findings having wide tax effect. In a recent judgment dated 31.10.2013 in the case of Mak Data Pvt. Ltd. Vs. CIT, 38 TAxmann.Com 448 (SC), the Hon'ble Supreme Court has ruled, "Voluntary disclosure does ....

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....bmitted that the assessee had forgone the claim of deduction under Section 35 of the Act amounting to Rs. 10,50,000/- only in order to buy peace and looking into the instant facts, it cannot be said that such disclosure was not voluntary in the instant facts since the assessee was not in receipt of reasons for re-opening of assessment at the time when the return of income was filed on 04.04.2017. The second contention put forth by the Counsel for the assessee before us is that at the time when the claim of deduction under Section 35 of the Act was made by the assessee on account of donation given by the assessee to M/s. Herbicure Healthcare Bio-Herbal Research Foundation (HHBRF), the registration granted under Section 35(1)(iii) of the Act ....

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....8 of the Act on 04.04.2017 whereas the reasons recorded for reopening of assessment under Section 147 of the Act were provided to the assessee on 19.04.2017. Therefore, it cannot be presumed that the reasons for reopening of assessment were known to the assessee at the time when return was filed by the assessee in response to notice under Section 147 of the Act withdrawing the claim of deduction under Section 35(1)(ii) of the Act. We observe that the ITAT Ahmedabad in the case of S. G. Vat Care Pvt. Ltd. in ITA No. 1943/Ahd/2017 vide order dated 15.01.2019 has held that assessee is eligible for deduction under Section 35 of the Act in respect of donation given to M/s. Herbicure Health Care Bio Herbal Research Foundation since the donations ....