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Merely because a notice u/s 143(2) had already been issued and the assessee filed revised return thereafter, disclosing additional income towards capital gains, which was not correctly shown in the original return, does not tantamount to detection of concealment of income u/s. 271(1)(c) of the Act .
Hon’ble Delhi ITAT has in the case of M/s. Fortune Ploymers Industries Pvt.Ltd. vs. DCIT, has held that Penalty u/s 271(1)(c) cannot be imposed on an un-detailed assessment order passed in a cursory and summary manner .
The fact of actual sale consideration received by the assessee has not been disputed by the Assessing Officer but the addition was made simply by applying the deeming provisions of section 50C. Therefore, in view of the various decisions as relied upon by the Ld. Authorized Representative as well as by the CIT(A), we do not find any error in the impugned order of CIT(A) in deleting the penalty levied u/s 271(1)(c).
when the Hon’ble jurisdictional High Court has admitted substantial question of law on the addition, it becomes apparent that the addition so made has become debatable. The penalty was imposed on the basis of addition so made, therefore, when the addition on the basis of which the penalty was imposed has become doubtful/debatable, therefore, penalty imposed u/s 271(1)(c) of the Act cannot survive.
The dictum laid down in case of Rubber Udyog Vikas (P) Ltd. is that incorrect claim would not tantamount to furnishing of inaccurate particulars unless it is established that assesee has acted with malafide intention.
In the case in hand, from the facts, it was clearly established that the assessee had put a wrongful claim of depreciation and thereby had furnished inaccurate particulars of income for the purpose of concealment of real income, hence, the penalty proceedings were correctly initiated by the AO.
It is evident from the record that surrender was made during the course of survey by the assessee and furnished the return of income declaring additional income and paid the tax thereon. Nothing has been brought out on record by the Assessing Officer that the surrender was made when the assessee was cornered by the Assessing Officer.
The company was incorporated on 24-11-2004 under the Indian Companies Act with the authorized capital of Rs. 2,00,00,000/- being minimum capital for the company obtaining membership of stock broker.
There is no dispute about the fact that the order of penalty at annexure A dated 12.3.2010 was made against the petitioner on the basis of the assessment of income of the petitioner done by the assessing officer under section 143(3) of the Act.
Issue -During the course of search certain valuables including jewellery was found and the assessee has filed detailed explanation regarding the source of acquisition of jewellery. The assessee has explained that out of the jewellery found, some part belongs to the wife of the assessee
