Case Law Details

Case Name : DCIT Vs Dr. Ravindra Babasaheb Kadam (ITAT Pune)
Appeal Number : ITA No.92/PUN/2017
Date of Judgement/Order : 08/03/2019
Related Assessment Year : 2012-13
Courts : All ITAT (6378) ITAT Pune (215)

DCIT Vs Dr. Ravindra Babasaheb Kadam (ITAT Pune)

The issue in the present ground is with respect to levy of penalty u/s 271(1)(c) of the Act. It is an undisputed fact that additional income of Rs.1.49 crores was offered by the assessee during the course of survey conducted on 12.01.2012. It is also a fact that aforesaid additional income was offered by the assessee in his return of income and the same has been accepted by the AO in the assessment framed u/s 143(3) of the Act. We find that Ld.CIT(A) while deleting the penalty has noted that on the date of survey, the date of filing of return u/s 139(1) of the Act had not expired and assessee had also not filed his return of income upto the date of survey. He has further noted that the fact of “concealment of income” and “furnishing of inaccurate particulars of income” can be established only with reference to the income declared in the return of income. In the present case, since the income declared by the assessee in the return of income has been accepted, there cannot be the case of “concealing the particulars of income” or “furnishing the inaccurate particulars of income”.

FULL TEXT OF THE ITAT JUDGEMENT

1. This appeal filed by Revenue is emanating out of the order of Commissioner of Income Tax (Appeals) – 13, Pune dated 25.10.2016 for the assessment year 2012-13.

2. The relevant facts as culled out from the material on record are as under :-

Assessee is an individual and a Doctor by profession. A survey operation was carried out u/s 133A of Act in the case of assessee on 12.01.2012. During the course of survey, assessee has disclosed additional income of Rs.1,49,59,870/- for A.Y. 2012-13 and the aforesaid income was included in the return of income filed by the assessee on 13.08.2012 for A.Y. 2012-13. The case was taken up for scrutiny and thereafter assessment was framed u/s 143(3) of the Act vide order dt.05.11.2014 and the total income was determined at Rs.2,18,19,100/-, after making adhoc disallowance of Rs.1,42,642/-on account of certain expenditure being not verifiable. On the additional income disclosed during the survey action and which was included in the return of income, AO in the penalty order passed u/s 271(1)(c) of the Act dated 15.05.2015 held that the additional income was declared by the assessee only as a result of survey and had the survey u/s 133A of the Act not been conducted, the assessee would have never offered such additional income in the return of income. He accordingly held that assessee is liable for penalty u/s 271(1)(c) of the Act and vide penalty order dated 15.05.015 levied penalty of Rs.46,22,600/-. Aggrieved by the order of AO, assessee carried the matter before Ld.CIT(A), who vide order dt. 25.10.2016 (in appeal No. PN/CIT(A)-13/ACIT Cir-09/104/2016-17) deleted the penalty. Aggrieved by the order of Ld.CIT(A), Revenue is now in appeal before us and has raised the following grounds :

“1. Whether in facts and circumstances of the case the Ld.CIT(A) was justified in deleting the penalty levied of Rs. 46,22,600/ – when the addition on which the penalty was levied was based on survey operation on assessee’s hospital & a large difference was noticed between assessee’s actual daily collection from hospital & manual recording in the books of accounts & daily accounting package.

2. Without prejudice to the above, the Ld.CIT(A) erred in not considering the Hon’ble Supreme Court’s decision in the case of MAK Data P. Ltd. v/s. Commissioner of Income Tax-II (CIVIL APPEAL NO. 9772 of 2013, arising out of Special Leave Petition (Civil) No.18389 of 2013) In which Hon’ble Supreme Court stated that under the explanation 1 to Section 271(1)(c) of the Act, It is trite law that the voluntary disclosure does not release the assessee from the mischief of penal proceedings. The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he had to be absolved from penalty.”

3. Both the grounds being inter-connected are considered together.

4. Before us, Ld.D.R. took us through the assessment order and submitted that assessee had disclosed additional income of Rs.149.59 lacs on the basis of alleged receipts which were not reflected in the books of accounts. He submitted that the income was declared by the assessee only on account of survey conducted u/s 133A of the Act and had the survey not been conducted, the assessee would have never offered such additional income in the return. He therefore submitted that AO was fully justified in levying the penalty u/s 271(1)(c) of the Act. Ld.A.R. on the other hand, reiterated the submissions made before AO and Ld.CIT(A) and further submitted that on identical facts resulting out of the same survey, addition was also made in the case of Dr. Ranjana, the wife of assessee. On such addition, penalty u/s 271(1)(c) of the Act was levied by the AO. The Co-ordinate Bench of the Tribunal vide order dt. 01.02.2019 in ITA No.91/PUN/2017 had dismissed the appeal of Revenue. He placed on record the copy of the aforesaid order. He therefore relying on the order of Tribunal in the case of assessee’s wife supported the order of Ld.CIT(A).

5. We have heard the rival submissions and perused the material on record. The issue in the present ground is with respect to levy of penalty u/s 271(1)(c) of the Act. It is an undisputed fact that additional income of Rs.1.49 crores was offered by the assessee during the course of survey conducted on 12.01.2012. It is also a fact that aforesaid additional income was offered by the assessee in his return of income and the same has been accepted by the AO in the assessment framed u/s 143(3) of the Act. We find that Ld.CIT(A) while deleting the penalty has noted that on the date of survey, the date of filing of return u/s 139(1) of the Act had not expired and assessee had also not filed his return of income upto the date of survey. He has further noted that the fact of “concealment of income” and “furnishing of inaccurate particulars of income” can be established only with reference to the income declared in the return of income. In the present case, since the income declared by the assessee in the return of income has been accepted, there cannot be the case of “concealing the particulars of income” or “furnishing the inaccurate particulars of income”. We further find that the case of Dr. Ranjana, the wife of assessee, penalty levied u/s 271(1)(c) of the Act on the additional income declared out of the same survey was deleted by the Co-ordinate Bench of the Tribunal vide order dt. 01.02.2019. Considering the totality of the facts, we find no reason to interfere with the order of Ld.CIT(A), more so when no fallacy has been pointed out by the Revenue in the order of Ld.CIT(A). Thus, the grounds of the Revenue are dismissed.

6. In the result, the appeal of Revenue is dismissed.

Order pronounced on 8th day of March, 2019.

Also,Check out section 10 38 of income tax act.

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