TaxTMI 
TaxTMI 
2024 (8) TMI 542
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....ny willful attempt to evade tax and there is no concealment of income, except by ignorance of law position which got rectified by filing the return of income. 4. The Ld. CIT(A) ought to have appreciated that the Ld. AO erred in passing order u/s 271(1)(c) of the Act by levying penalty when the appellant has neither resorted to concealment of income nor furnished inaccurate particulars of income. 5. The Ld. CIT(A) ought to have appreciated that the non-admission of short-term capital gain in the original return of income is on account of misnomer and difference of opinion as also ignorance of the latest law positions. 6. The appellant may add or alter or amend or modify or substitute or delete and/or rescind all or any of the grounds of appeal at any time before or at the time of hearing of the appeal." 3. The brief facts of the case are that the assessee is an individual and derives income from capital gain and income from other sources. The assessee had filed his original return of income u/s 139(1) of the I.T. Act, 1961 on 30.08.2015 declaring total income of Rs. 4,41,180/-. A search & seizure operation u/s 132 of the I.T. Act, 1961 was conducted on the assessee as part of....
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.... of the assessee fall under Explanation 5A of section 271(1)(C) of the Act, where it has been clearly stated that notwithstanding that such income is declared by him in any return of income furnished on or after the date of search, if the assessee is found to be owner of any income based on the document found during the course of search initiated u/s 132 of the I.T. Act, 1961 on or after 1.6.2007, he shall be deemed to have concealed his particulars of income. Therefore, opined that although the appellant have admitted additional income in the return of income filed u/s 153A, but additional income declared by the assessee fall under deemed concealment and thus, opined that it is a fit case for levy of penalty u/s 271(1)(c) of the I.T. Act, 1961. Thus, rejected the explanation of the assessee and levied penalty of Rs. 62,08,225/- being 100% tax sought to be evaded. 6. Being aggrieved by the penalty order, the assessee preferred an appeal before the learned CIT (A). Before the learned CIT (A), the assessee reiterated his arguments taken before the Assessing Officer and submitted that voluntary surrender of income cannot be treated as willful concealment of income within the meaning ....
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....d concealment of income on account of non-disclosure of Short-Term Capital Gain from sale of property in the original return filed u/s 139(1) of the I.T. Act, 1961. Although, the assessee disclosed Short-Term Capital Gain in subsequent return filed u/s 153A of the Act, but as per Explanation 5A, it fall under deemed concealment and penalty is leviable. The Assessing Officer after considering the relevant fact has rightly levied the penalty and thus, the order of the learned CIT (A) in sustaining the penalty levied by the Assessing Officer should be upheld. 10. We have heard both the parties, perused the material available on record and gone through the orders of the authorities below. There is no dispute with regard to the fact that the assessee had admitted additional income towards Short-Term Capital Gain derived from sale of property at Rs. 1,83,88,030/- in the return of income filed u/s 153A of the I.T. Act, 1961 dated 19.2.2021. Further, the said capital gain was not offered in the return of income filed u/s 139(1) of the Act on 30.08.2015. It is also an admitted fact that although the Assessing Officer has stated that the said capital gain was offered on the basis of incrimi....
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....sing Officer has accepted the return of income filed by the assessee without any addition towards capital gain, in our considered view, for the purpose of section 271(1)(c) of the I.T. Act, 1961, it can be said there is no concealment of income and penalty cannot be levied u/s 271(1)(c) of the Act. 12. Be that as it may, coming back to another aspect of the issue. Admittedly, additional income declared by the assessee towards Short-Term Capital Gain derived from sale of property is not based on any incriminating material. Although the Assessing Officer refer to page 305 to 327 of the seized material, but on perusal of the said seized material, we find that those documents are copies of sale deed documents and sale agreement and as per the said documents, there is no reference of any consideration received in cash. Although the seized material does not show any undisclosed income on account of Short-Term Capital Gain derived from sale of property, but the assessee has admitted additional income of Rs. 1,83,88,030/- voluntarily to buy peace and to cooperate with the Department with an understanding that the Assessing Officer would not levy penalty u/s 271(1)(c) of the Act. In our co....