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08-01-2020, Dr. Subash Chandra Jena, Section 271(1)(c), 153A, Tribunal Cuttack

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8 months 2 weeks ago - 8 months 2 weeks ago #11982 by amit
Section - 271(1)(c), 153A, 132, 139(1)
Order Date - 08-01-2020
Favouring - Revenue
Court - Tribunal Cuttack
Appellant - Dr. Subash Chandra Jena
Respondent - ACIT
Justice - C.M. GARG, JM & L.P. SAHU, AM
Citation - 120Taxpundit71
Appeal No. - ITA Nos.40 to 45/CTK/2019
Asstt. Year - 2010-2011 to 2015-2016

Order

PER : C.M. GARG, JM

These are the appeals filed by the assessee against the two separate orders of CIT(A)-2, Bhubaneswar, i.e. one dated 11.12.2018 for the assessment years 2010-2011 & 2011-2012 and other dated 28.11.2018 for the assessment years 2012-2013 to 2015-2016.

2. First we shall take up appeals of the assessee for assessment years 2010-2011 & 2011-2012 in ITA Nos.40 & 41/CTK/2019, wherein the sole issue involved is with regard to confirming the penalty levied u/s.271(1)(c) of the Act.

3. Brief facts of the case are that the assessee was working in Government of Odisha as a Doctor and also engaged in private practice in nursing home of his wife Smt. Ranjita Jena in the name of ‘Jena & Jena Nursing Home’ and filed his original return of income on 17.08.2010 for the assessment year 2010-2011 disclosing total income at Rs.5,82,150/- and for the assessment year 2011-2012 the assessee filed his return of income on 26.08.2011 declaring total income at Rs.7,37,250/-. A search and seizure action u/s.132 of the Act was conducted against the assessee on 03.09.2015 in the business premises of Companies at Cuttack and residential premi es of the Directors at Cuttack and Bhubaneswar and residential premises of above assessee at Talcher. In consequence to that search, the AO issued notice u/s.153A of the Act and in pursuance to the same the assessee filed his return of income on 16.02.2017 disclosing total income of Rs.5,82,279/- and revised return was filed on 21.11.2017 disclosing total income of Rs.6,45,586/-. Similarly, the assessee in pursuance to notice u/s.153A of the Act filed his return of income for the assessment year 2011-2012 on 16.02.2017 disclosing his total income at Rs.7,11,720/- and revised return was filed on 21.11.2017 declaring total income at Rs.7,91,720/-. During the course of assessment proceedings, the AO found that the assessee has disclosed additional income of Rs.1,00,000/- under the head professional income as compared to the income disclosed in the return filed u/s.139(1) of the Act for A.Y.2010-2011 and Rs.54,470/- for the assessment year 2011-2012. During the course of assessment proceedings, Rs.50,000/- was discovered from the bank statement as unexplained investment also. Accordingly, the AO completed the assessment u/s.153A of the Act assessing total income of the assessee at Rs.6,95,590/- for the assessment year 2010-2011 and Rs.7,91,720/- for assessment year 2011-20112. Consequently, the AO initiated penalty u/s.271(1)(c) of the Act and penalty order was passed on 28.06.2018 levy ng penalty of Rs.46,350/- for A.Y.2010-2011 and Rs.24 436/- for the assessment year 2011-2012, respectively.

4. Feeling aggrieved with the penalty order, the assessee preferred appeals before the CIT(A), however, the CIT(A) after considering the submissions of the assessee and findings of AO, upheld the penalty so levied by the AO u/s 271(1)(c) of the Act for both the assessment years under consideration.

5. Further feeling aggrieved with the order of CIT(A), the assessee is in appeals before the Income Tax Appellate Tribunal.

6. Ld. AR before us submitted that the AO while imposing the penalty u/s.271(1)(c) of the Act on the ground that the assessee has disclosed excess income over and above the income declared in the original return, the same was not mentioned in the body of the show cause notice issued by the AO. It was also the contention of ld. AR that the assessee has challenged the penalty in both the appeals on two grounds, firstly, when the assessee filed revised return and the return filed by the assessee u/s.153A of the Act was accepted as such by the AO and that income disclosed by the assessee u/s.153A of the Act was higher than the income in the original return filed u/s.139(1) of the Act, then such disclosure of additional income will not automatically lead to penalty. In this regard ld. AR relied on the decision of Hon’ble High Court in the case of Neeraj Jindal, (2017) 393 ITR 1 (Del). Accordingly, ld. AR submitted that the penalty imposed in both the appeals deserves to be deleted.

7. On the other hand, ld. DR relied on the orders of both the authorities below and submitted that in the returns filed in response to notice u/s.153A of the Act the assessee has claimed that additional income has been received by him, which was not declared by him, in the returns furnished before the date of search for A.Y.2010-2011 & 2011-2012 therefore, the provisions of section 271(1)(c) r.w. Explanation 5A are applicable. It was also the contention of ld. DR that the assessee has not given any reasonable cause as to why the additional income was not disclosed earlier. Accordingly, ld. DR submitted that the penalty imposed by the AO and confirmed by the CIT(A) deserves to be upheld for the both the assessment years under appeals.

8. After considering the submissions of both the parties and perusing the entire material available on record, we find that in consequence of search, the AO issued notice u/s.153A of the Act and in response to which the assessee filed his return on 16.02.2017 declosing total income of Rs.5,82,279/- and subsequently it was revised on 21.11.2017 disclosing total income of Rs.6,45,586/- for A.Y.2010-2011 and Rs.7,91,720/- for A.Y.2011-2012. During the course of assessment proceedings, the AO found that the assessee has disclosed additional income of Rs.1,00,000/- under the head professional income and Rs.50,000/- as unexplained investment as compared to the income disclosed in the return filed u/s.139(1) of the Act for A.Y.2010-2011 and Rs.54,470/- for the assessment year 2011-2012. It was also noted by the AO that the assessee could not disclose the said additional income u/s.139(1) of the Act, against which the AO initiated penalty proceedings u/s.271(1)(c) of the Act for concealment of particulars of income. In the appellate proceedings the CIT(A) observed that had there been no search, the additional income would not have been disclosed by the assessee. In this case, the date of search was 03.09.2015 and both the two previous years had ended before the date of search. In the returns filed in response to notice u/s.153A of the Act the assessee claimed that additional income has been received by him and the same was not declared by him in the returns filed before the

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