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05-09-2019, Ram Prakash Nagori, Section 153A, 271(1)(c), Tribunal Hydrabad

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5 days 5 hours ago #10755 by amit
Section - 153A, 271(1)(c), 271, 276C
Order Date - 05-09-2019
Favouring - Assessee
Court - Tribunal Hydrabad
Appellant - Ram Prakash Nagori
Respondent - DCIT
Justice - P. MADHAVI DEVI JM & S. RIFAUR RAHMAN AM
Citation - 919Taxpundit76
Appeal No. - ITA No. 230/H/19
Asstt. Year - 2015-16

Order

PER : S. RIFAUR RAHMAN, A.M.

These three appeals filed by different assessees are directed against the orders of CIT(A) -12, Hyderabad, all dated, 10/01/2019. As identical issue is involved in these appeals, the same were clubbed and heard together and therefore, disposed of these appeals by this consolidated order for the sake of convenience.

2. Brief facts as taken from ITA No. 230/Hyd/2019 in the case of Ram Prakash Nagori are, the assessee, an individual derives income from salary from M/s Sree Sai Roller Flour Mills (P) Ltd., house property and income from other sources. He originally filed his return of income for AY 2015-16 on 28/08/2015 admitting total income of Rs. 66,47,293/- after claiming exempt income u/s 10(38) of Rs. 3,51,94,419/- towards long term capital gains (LTCG) on listed securities.

2.1 Thereafter, search and seizure operations u/s 132 of the Income-tax Act, 1961 (in short ‘the Act’) were conducted and warrant of authorization was executed on 21/01/2016. The assessee filed revised return of income on 12/04/2016 admitting income of Rs. 4,18,41,710/-. In the original return of income filed by the assessee, LTCG was claimed u/s 10(38) of the Act, which ed the AO to initiate penalty proceedings u/s 271(1)(c) on the ground that the assessee has concealed his income to the extent tax was leviable on account of LTCG. Accordingly, vide order dated 09/08/2018, the AO levied penalty at Rs. 1,22,00,000/- u/s 271(1)(c) relying on the decision of Hon’ble Supreme Court in the case of MAK Data (P) Ltd., [2013] 38 Taxmann.com 448 (SC).

3. Aggrieved by the order of AO, the assessee preferred an appeal before the CIT(A). Before the CIT(A), the assessee filed written submissions, which were extracted by the CIT(A) at pages 5 to 7 of his order After considering the submissions of the assessee, the CIT(A) upheld the penalty levied by the AO.

4. Aggrieved by the order of CIT(A), the assessee is in appeal before us by raising the following grounds of appeal, which are common in all the appeals under consideration, except the quantum of penalty:

“1) The order of the Learned Commissioner of Income Tax (Appeals)-12, Hyderabad [CIT (A)] in sustaining the levy of penalty u/s 271(1)(c) of the Income Tax Act, 1961 (the Act) at Rs. 1,22,00,000/- is wholly unsustainable in law and on facts.

2) The Ld. CIT (A) failed to note that the return of income filed in response to the notice u/s 153A of the Act on 12/04/2016 admitting an income of Rs. 4,18,41,710/- which was accepted and therefore, the CIT (A) ought to have held that there was no concealment or furnishing inaccurate particulars whatsoever in the return of income filed u/s 53A of the Act and therefore erred in confirming the levy of penalty u/s 271(1)(c) o fRs. 1,22,00,000/-.

(3) The Ld. CIT(A) failed to note that there was no concealment whatsoever in the return of income u/s 153A on 12/04/2016 as section 153A treats a return of income filed u/s 153A as a return of income required to be filed u/s 139 and therefore, the Ld. CIT (A) erred in confirming the penalty u/s 271(1)(c) of the Act at Rs. 1,22,00,000/- .

(4) Ld. CIT (A) failed to note that the exemption u/s 10(38) was surrendered on the basis of a discussion with the authorities that no penalty proceedings will be initiated / levied and therefore, the Ld. CIT (A) erred in confirming the levy of penalty u/s 271(1)(c) at Rs. 1,22,00,000/- .

(5) The Ld. CIT (A) erred in confirming the levy of penalty u/s 271(1)(c) of Rs. 1,22,00,000/- when the appellant in the original return of income filed for the AY 2015-16 on 28/08/2015 admitted a total income of Rs. 66,47,293/- after claiming exemption of income u/s 10(38) of the Act at Rs. 3,51,94,419/- which was clearly mentioned in the Return of Income flied originally.

(6) Ld. CIT(A) failed to note that the appellant had neither concealed the particulars of income nor furnished inaccurate particulars in submission of return of income either originally or in response to section 153A of the Act and therefore, erred in confirming the levy of penalty u/s 271(1)(c) of the Act at Rs. 1,22,00,000/-

(7) The Ld. CIT (A) failed to note that notice issued U/S 274 r.w.s 271 of the Act, proposing to levy penalty U/S 271(1)(c) of the Act did not specify in the notice whether the charges were for concealment of income or for furnishing of inaccurate particulars of income and therefore, the notice issued was invalid, bad in law and without jurisdiction and thus, the Ld. CIT(A) erred in confirming the levy of penalty u/s 271 (1)(c) of the Act at Rs.1,22,00,000/-“

5. Before us, the ld. AR of the assessee brought to the facts of the case and submitted that assessee has already disclosed the

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