Dy. Commissioner of Income Tax, Lucknow V. M/s Sushrut Institute of Plastic Surgery Pvt. Ltd., Lucknow

ITA 372/LKW/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1875 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 02-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Competent authority; Revised return
• Section: 143(3); 133A; 139(5); 27

Judgement Text

I.T.A. NO.372/LKW/2017 ASSESSMENT YEAR:2013-14 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.372/LKW/2017 ASSESSMENT YEAR:2013-14 DY.C.I.T., RANGE-6, LUCKNOW. VS. M/S SUSHRUT INSTITUTE OF PLASTIC SURGERY PRIVATE LIMITED, 29, SHAHMEENA ROAD, LUCKNOW. PAN:AAICS 2582 G (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-II, LUCKNOW DATED 21/03/2017. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS THE ACTION OF THE LEARNED CIT(A) BY WHICH HE HAS DELETE D THE PENALTY WHICH THE ASSESSING OFFICER HAD IMPOSED U/S 271(1)(C) OF THE ACT. 2. AT THE OUTSET, LEARNED D. R. SUBMITTED THAT THE ASSESSING OFFICER HAD RIGHTLY IMPOSED THE PENALTY WHICH LEARNED CIT(A) HA S WRONGLY DELETED AS THE REVISED RETURN WAS FILED ONLY AFTER INCRIMINATI NG DOCUMENTS WERE FOUND DURING THE COURSE OF SURVEY AND THEREFORE, THERE WA S CONCEALMENT OF INCOME IN THE ORIGINAL RETURN AND HAD THERE BEEN NO SURVEY , THE INCOME OF THE ASSESSEE WOULD HAVE BEEN SHORT ASSESSED TO THAT EXT ENT AND THEREFORE, THE ASSESSING OFFICER HAD RIGHTLY IMPOSED THE PENALTY. APPELLANT BY SHRI AMIT NIGAM, D. R. RESPONDENT BY SMT SWETA MITTAL, ACA DATE OF HEARING 31/08/2018 DATE OF PRONOUNCEMENT 07 / 0 9 /201 8 I.T.A. NO.372/LKW/2017 ASSESSMENT YEAR:2013-14 2 3. LEARNED A. R., ON THE OTHER HAND, SUBMITTED THAT AFTER THE FILING OF RETURN OF INCOME A SURVEY TOOK PLACE U/S 133A OF TH E ACT AND CERTAIN INCRIMINATING DOCUMENTS SHOWING PAYMENTS OF RS.77,4 2,720/- WERE FOUND AND THEREAFTER THE ASSESSEE SURRENDERED SUCH PAYMEN T AND OFFERED THE SAME IN THE FORM OF REVISED RETURN AND THE ASSESSME NT WAS COMPLETED U/S 143(3) OF THE ACT WHEREIN THE ASSESSING OFFICER HAD NOTED THIS FACT AND HAD ACCEPTED THE SURRENDER. IT WAS ARGUED THAT THE ASS ESSING OFFICER THEREAFTER IMPOSED PENALTY FOR CONCEALMENT OF INCOME ON THIS A MOUNT OF SURRENDER BY HOLDING THAT THE ASSESSEE HAD CONCEALED THE INCOME IN ITS ORIGINAL RETURN OF INCOME. LEARNED A. R. SUBMITTED THAT THE REVISED R ETURN WAS FILED WELL WITHIN THE PRESCRIBED PERIOD OF TIME WHEREIN SUCH S URRENDER WAS OFFERED AS INCOME AND ASSESSING OFFICER DID NOT MAKE ANY ADDIT ION TO THE RETURNED INCOME ON THIS ACCOUNT AND THEREFORE, IT CANNOT BE SAID THAT ASSESSEE HAD CONCEALED ANY INCOME OR HAD FURNISHED WRONG PARTICU LARS OF INCOME AND THEREFORE, LEARNED CIT(A) AFTER RELYING ON A NUMBER OF CASE LAWS HAD RIGHTLY DELETED THE ADDITION. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UNDISPUTE D FACT THAT REVISED RETURN OF INCOME WAS FILED WITHIN THE PRESCRIBED PERIOD OF TIME. THE LEARNED CIT(A) HAD NOTED THIS FACT IN HIS ORDER IN PARA 7(1 ). THE LEARNED D. R. WAS ALSO NOT ABLE TO DEMONSTRATE THAT THE REVISED RETUR N WAS A BELATED ONE. IT IS ALSO A FACT THAT IN THE REVISED RETURN THE ASSES SEE HAD SURRENDERED THE SAME AMOUNT OF RS.77,42,720/- AS INCOME AND THE ASS ESSMENT OF THE ASSESSEE WAS COMPLETED U/S 143(3) VIDE ORDER DATED 28/03/2016 AND THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAD ACCEP TED THE SURRENDER AND NO FURTHER ADDITION WAS MADE ON THIS ACCOUNT THEREF ORE, IT CANNOT BE SAID THAT THE ASSESSEE HAD CONCEALED THE INCOME AS HE HA D ALREADY DECLARED THE SURRENDERED AMOUNT IN THE REVISED RETURN OF INCOME AND NO PARTICULARS OF I.T.A. NO.372/LKW/2017 ASSESSMENT YEAR:2013-14 3 INCOME WAS FOUND TO BE WRONG OR CONCEALED IN THE RE VISED RETURN OF INCOME. THE LEARNED CIT(A) HAS PASSED A DETAILED AND EXHAUS TIVE ORDER WHEREIN HE HAS RELIED ON A NUMBER OF CASE LAWS WHICH HOLD THAT ONCE THE INCOME AS DECLARED IN THE REVISED RETURN OF INCOME IS ACCEPTE D AND NO ADDITION WITH RESPECT TO THAT SURRENDER ARE MADE, THE PENALTY U/S 271(1)(C) WILL NOT BE IMPOSABLE. THE FINDINGS OF LEARNED CIT(A), AS CONT AINED FROM PARA 7.1 ONWARDS ARE REPRODUCED BELOW: 7(1) I HAVE EXAMINED THE FACTS AND CIRCUMSTANCES O F THE CASE. I HAVE CONSIDERED THE ORDER PASSED BY THE ASSESSING O FFICER AND THE DOCUMENTS PLACED BEFORE ME IN THE APPELLATE PROCEED INGS AS WELL AS IN THE QUANTUM PROCEEDINGS. I FIND THAT THE APPELLAN T FILED A RETURN OF INCOME SHOWING TOTAL INCOME OF RS.98,89,870/- ON 11 .09.2013 WITHIN THE TIME ALLOWED AS PER PROVISIONS CONTAINED IN SEC TION 139(1) OF THE ACT. THEREAFTER A SURVEY UNDER SECTION 133A OF THE ACT WAS CARRIED OUT ON 10.03.2015. DURING THE COURSE OF THE SAID SU RVEY CERTAIN INCRIMINATING DOCUMENTS WERE FOUND, ON THE BASIS OF WHICH THE APPELLANT MADE AN OFFER FOR SURRENDER OF RS.77,42,7 20/-. THE APPELLANT FILED A REVISED RETURN OF INCOME ON 31.03 .2015 IN WHICH THE AMOUNT OF RS. 77,42,720/- WAS OFFERED AS ADDITIONAL INCOME AND TOTAL INCOME OF RS. 1,66,89,870/- WAS SHOWN. THE SURRENDE RED AMOUNT WAS ACCEPTED IN THE ASSESSMENT ORDER PASSED UNDER S ECTION 143(3) OF THE ACT. THE REVISED RETURN OF INCOME FILED ON 3 1.03.2015 IS WITHIN THE TIME ALLOWED UNDER SECTION 139(5) OF THE ACT. T HE ISSUE THEREFORE IS WHETHER THE PENALTY UNDER SECTION 271(L)(C) OF T HE ACT IS LEVIABLE ON THE AMOUNT SURRENDERED ON SURVEY WAS SHOWN IN TH E RETURN OF INCOME. 7(2)(I) HON'BLE ITAT, BANGLORE IN THE CASE OF MUNIN AGA REDDY VS ACIT (2013) 37 TAXMANN.COM 440 (BANGLORE - TRIB) HA S EXAMINED THE ISSUE. THE HEAD NOTE READ AS UNDER- SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 - PEN ALTY - FOR CONCEALMENT OF INCOME [SURVEY, DECLARATION OF INCOM E AFTER, EFFECT OF] - ASSESSMENT YEAR 2008-09 - ASSESSEE ALO NG WITH ONE 'E' DEVELOPED A LAYOUT OF HOUSE SITE -COMPETENT AUTHORITY CONDUCTED A SURVEY UNDER SECTION 133A UPON 'E' ON 1 1-11- 2009 - CONSEQUENT TO SURVEY, ASSESSEE DECLARED HIS SHARE OF INCOME FROM JOINT VENTURE AT RS. 81 LAKHS - IN RETUR N OF INCOME FILED FOR ASSESSMENT YEAR 2008-09 ON 9-6-201 0, ASSESSEE APART FROM OTHER INCOME ALSO DECLARED AFOR ESAID INCOME OF RS. 81 LAKHS AS INCOME FROM BUSINESS - AS SESSING I.T.A. NO.372/LKW/2017 ASSESSMENT YEAR:2013-14 4 OFFICER ACCEPTED SAID INCOME AND PASSED ASSESSMENT ORDER - HE ALSO LEVIED PENALTY UNDER SECTION 271(1)(C) ON P LEA THAT BUT FOR SURVEY OPERATIONS UNDER SECTION 133A ASSESS EE HAD DECLARED INCOME OF RS. 81 LAKHS AND, THEREFORE, HE HAD CONCEALED PARTICULARS OF INCOME TO EXTENT OFRS. 81 LAKHS - WHETHER SINCE ASSESSEE HAD MADE A COMPLETE DISCLOSU RE IN RETURN OF INCOME AND OFFERED SURRENDERED AMOUNT FOR PURPOSES OF TAX, WHICH WAS ACCEPTED AND BROUGHT TO TAX, THERE COULD BE NO QUESTION OF TREATING ASSESSEE AS HAVING CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCU RATE PARTICULARS OF INCOME - HELD, YES - WHETHER, THEREF ORE, THERE WAS NO JUSTIFICATION FOR IMPOSITION OF PENALTY UNDE R SECTION 271(1)(C) ON INCOME OF RS. 81 LAKHS- HELD, YES [PAR AS 7,10 & 12] [IN FAVOUR OF ASSESSEE] 7(2)(II) SIMILAR ISSUE WAS EXAMINED BY HON'BLE ITAT , AHEMDABAD IN THE CASE OF R. UMEDBHAI JEWELLERS PVT.LTD VS DCIT I N ITA NO. 221/AHD/2015 DATED 09.10.2015 AFTER CONSIDERING THE APEX COURT JUDGEMENT IN THE CASE OF MAK DATA (P) LTD VS CIT OB SERVED AS UNDER- 4.2. IN THE PRESENT CASE, IT IS NOT THE CASE WHERE THE ASSESSEE HAS SURRENDERED THE AMOUNT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. IN THE CASE OF MAK DATA (P.) LTD. [SUPRA] BEFORE THE HON'BLE APEX COURT, THE ASSESSEE HAD ALREADY FILED ITS RETURN OF INCOME FOR AY 2004-05 O N 27/10/2004, WHEREIN ASSESSEE DECLARED A TOTAL INCOM E OF RS.16,17,040/-, HOWEVER, BEFORE THE AO, ASSESSEE SURRENDERED ANOTHER AMOUNT OF RS.40.74 LACS TO AVOI D LITIGATION, BUY PEACE AND AMICABLE SETTLEMENT OF TH E DISPUTE. IN THE PRESENT CASE, THE ASSESSEE HAD FILED ITS RETU RN OF INCOME BEFORE THE DUE DATE OF FILING AND INCLUDING THE AMOUNT ON WHICH PENALTY HAS BEEN LEVIED, ADMITTEDLY, PRIOR TO INITIATION OF ASSESSMENT PROCEEDINGS. FURTHER, THE LD.CIT(A) FAILED TO TAKE NOTE OF THE OBSERVATION OF THE HON'B LE APEX COURT THAT THE SURVEY WAS CONDUCTED MORE THAN 10 MO NTHS BEFORE THE ASSESSEE FILED ITS RETURN OF INCOME. HAD IT BEEN THE INTENTION OF THE ASSESSEE TO MAKE FULL AND TRUE DIS CLOSURE OF ITS INCOME, IT WOULD HAVE FILED THE RETURN DECLARING AN INCOME INCLUSIVE OF THE AMOUNT WHICH WAS SURRENDERED LATER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. CONSEQUEN TLY, IT IS CLEAR THAT THE ASSESSEE HAD NO INTENTION TO DECLARE ITS TRUE INCOME. IN THE PRESENT CASE, THE ASSESSEE HAS INCLUD ED THE AMOUNT INTO THE RETURN OF INCOME, THEREFORE, IN OUR CONSIDERED VIEW, THE ASSESSEE CANNOT BE HELD GUILTY OF CONCEAL ING THE PARTICULARS OF INCOME. THE COORDINATE BENCH OF THE TRIBUNAL I.T.A. NO.372/LKW/2017 ASSESSMENT YEAR:2013-14 5 (ITAT 'A' BENCH AHMEDABAD) IN ITA NO.1960/AHD/2011 FOR AY 2006-07 IN THE CASE OF ITO VS. SHRI VALIBHAI KHA NBHAI MANKAD, VIDE ITS ORDER DATED 27/02/2015 HAS CONFIRM ED THE VIEW OF THE ID.CIT(A) BY OBSERVING AS UNDER:- '6........ THE LD. CIT(A) HAS FOLLOWED THE DECISION OF THIS BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF DOT VS. DR. SATISH B GUPTA (42 SOT 48)(AHD). LD. CIT-DR HAS CONTENDED TH AT THE CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ADDIT IONAL INCOME AMOUNTING TO RS.41,73,000/- WAS DECLARED IN CONSEQU ENCE TO THE SURVEY ACTION BY THE REVENUE. HOWEVER, IT IS NO T DISPUTED BY THE ID. CIT-DR THAT THE ASSESSEE HAS DECLARED THI S INCOME IN HIS ORIGINAL RETURN OF INCOME, ALTHOUGH IT WAS B ELATED RETURN. AS PER PROVISIONS OF SECTION 271(1)(C) OF T HE INCOME- TAX ACT, PENALTY CAN BE IMPOSED IF THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHING THE INACCUR ATE PARTICULARS OF SUCH INCOME. THERE IS NO DISPUTE WIT H REGARD TO THE FACT THAT THE PARTICULARS OF INCOME ARE REFLECT ED IN THE RETURN OF INCOME. IT IS NOT THE CASE OF THE REVENUE THAT THE RETURNS OF INCOME FILED WERE INVALID. IN FACT, THE ASSESSING OFFICER HAS PROCEEDED ON THE BASIS OF THE RETURNS F ILED BY THE ASSESSEE AND PARTICULARS FURNISHED THEREIN. THEREFO RE, WE DO NOT SEE ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE ID. CIT(A) WHICH IS HEREBY CONFIRMED. THUS, THIS GROUND OF APPEAL OF THE REVENUE IS REJECTED.' 4.3. IN THE LIGHT OF THE ABOVE, WE ARE OF THE CONSID ERED VIEW THAT THE LD.CIT(A) HAS WRONGLY APPLIED AND MISCONSTRUED THE JUDGEMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF MAK DATA (P.)LTD. VS. CIT[SUPRA] AS THE FACTS OF THE PRESENT CASE ARE ENT IRELY DIFFERENT FROM THE FACTS OF THE CASE OF MAK DATA (P.)LTD. VS. CIT[ SUPRA], THEREFORE WE DIRECT THE AO TO DELETE THE PENALTY. 7(2)(III) BANGLORE BENCH OF HON'BLE ITAT ALSO EXAMI NED THE SAME ISSUE IN THE CASE OF VASAVI SHELTERS VS ITO IN ITA NO. 499 & 500 OF 2012 DATED 22.02.2013 OBSERVING AS UNDER 13. THERE CAN BE NO CONCEALMENT OR NONDISCLOSURE, A S THE ASSESSEE HAD MADE A COMPLETE DISCLOSURE IN THE IT R ETURN AND OFFERED THE SURRENDERED AMOUNT FOR THE PURPOSES OF TAX AND THEREFORE, NO PENALTY UNDER S. 271(1)(C) COULD BE L EVIED. THE WORDS IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT' IN SEC. 271(1)(C ) OF THE ACT ARE PREFACED BY THE SATISFACT ION OF THE AO OR THE CIT(A). WHEN A SURVEY IS CONDUCTED BY A S URVEY TEAM, THE QUESTION OF SATISFACTION OF AO OR THE CIT (A) OR THE CIT DOES NOT ARISE. ONE HAS TO KEEP IN MIND THAT IT IS THE AO I.T.A. NO.372/LKW/2017 ASSESSMENT YEAR:2013-14 6 WHO INITIATES PENALTY PROCEEDINGS AND DIRECTS THE P AYMENT OF PENALTY. HE CANNOT RECORD ANY SATISFACTION DURING T HE COURSE OF SURVEY. DECISION TO INITIATE PENALTY PROCEEDINGS IS TAKEN WHILE MAKING ASSESSMENT ORDER. IT IS, THUS, OBVIOUS THAT THE EXPRESSION 'IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT' CANNOT HAVE THE REFERENCE TO SURVEY PROCEEDINGS. IT NECESSARILY FOLLOWS THAT CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULAR OF INCOME BY THE ASSESSEE HAS TO BE IN THE IT RETURN FILED BY IT. TH E ASSESSEE CAN FURNISH THE PARTICULARS OF INCOME IN HIS RETURN AND EVERYTHING WOULD DEPEND UPON THE IT RETURN FILED BY THE ASSESSEE. THIS VIEW GETS SUPPORTED BY EXPLANATIONS 4 AS WELL AS 5 AND 5A OF S. 271. OBVIOUSLY, NO PENALTY CAN BE IMPOSED UNLESS THE CONDITIONS STIPULATED IN THE SAID PROVIS IONS ARE DULY AND UNAMBIGUOUSLY SATISFIED. SINCE THE ASSESSEE WAS EXPOSED DURING SURVEY, MAY BE, IT WOULD HAVE NOT DISCLOSED THE INCOME BUT FOR THE SAID SURVEY. HOWEVER, THERE CANNOT BE A NY PENALTY ONLY ON SURMISES, CONJECTURES AND POSSIBILITIES. SE C. 271(1)(C) HAS TO BE CONSTRUED STRICTLY. UNLESS IT IS FOUND TH AT THERE IS ACTUALLY A CONCEALMENT OR NONDISCLOSURE OF THE PART ICULARS OF INCOME PENALTY CANNOT BE IMPOSED. THERE IS NO SUCH CONCEALMENT OR NONDISCLOSURE AS THE ASSESSEE HAD MA DE A COMPLETE DISCLOSURE IN THE IT RETURN AND OFFERED TH E SURRENDERED AMOUNT FOR THE PURPOSES OF TAX. 15. FOR THE REASONS GIVEN ABOVE WE HOLD THAT THERE CAN BE NO JUSTIFICATION FOR IMPOSITION OF PENALTY ON THE INCO ME OFFERED IN THE RETURN OF INCOME BY THE ASSESSEE FOR BOTH THE A .YS., BECAUSE THERE CANNOT BE ANY PENALTY ON INCOME WHICH IS DECLARED IN A RETURN OF INCOME, ON THE FACTS AND CI RCUMSTANCES OF THE PRESENT CASE. 7(2)(IV) THE ISSUE WAS ALSO DECIDED BY HON'BLE DELH I HIGH COURT IN THE CASE OF CIT VS SAS PHARMACEUTICALS IN ITA NO. 1 058 OF 2009 DATED 08.01.2011: 13. IT IS NOT THE CASE OF FURNISHING INACCURATE PAR TICULAR OF INCOME, AS IN THE INCOME TAX RETURN, PARTICULARS OF INCOME HAVE BEEN DULY FURNISHED AND THE SURRENDERED AMOUNT OF INCOME WAS DULY REFLECTED IN THE INCOME TAX RETURN. THE QUESTION IS WHETHER THE PARTICULARS OF INCOME W ERE CONCEALED BY THE ASSESSEE OR NOT IT WOULD DEPEND UPO N THE ISSUE AS TO WHETHER THIS CONCEALMENT HAS REFERENCE TO THE INCOME TAX RETURN FILED BY THE ASSESSEE, VIZ., WHET HER CONCEALMENT IS TO BE FOUND IN THE INCOME TAX RETURN . I.T.A. NO.372/LKW/2017 ASSESSMENT YEAR:2013-14 7 16. NO DOUBT, THE DISCREPANCIES WERE FOUND DURING T HE SURVEY. THIS HAS YIELDED INCOME FROM THE ASSESSEE IN THE FO RM OF AMOUNT SURRENDERED BY THE ASSESSEE. PRESENTLY, WE A RE NOT CONCERNED WITH THE ASSESSMENT OF INCOME, BUT THE MO OT QUESTION IS TO WHETHER THIS WOULD ATTRACT PENALTY U PON THE ASSESSEE UNDER THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. OBVIOUSLY, NO PENALTY CAN BE IMPOSED UNLESS THE CON DITIONS STIPULATED IN THE SAID PROVISIONS ARE DULY AND UNAM BIGUOUSLY SATISFIED. SINCE THE ASSESSEE WAS EXPOSED DURING SU RVEY, MAY BE, IT WOULD HAVE NOT DISCLOSED -THE INCOME BUT FOR THE SAID SURVEY. HOWEVER, THERE CANNOT BE ANY PENALTY ONLY O N SURMISES, CONJECTURES AND POSSIBILITIES. SECTION 27 1 (1) (C) OF THE ACT HAS TO BE CONSTRUED STRICTLY. UNLESS IT IS FOUND THAT THERE IS ACTUALLY A CONCEALMENT OR NON-DISCLOSURE O F THE PARTICULARS OF INCOME, PENALTY CANNOT BE IMPOSED. T HERE IS NO SUCH CONCEALMENT OR NON-DISCLOSURE AS THE ASSESSEE HAD MADE A COMPLETE DISCLOSURE IN THE INCOME TAX RETURN AND OFFERED THE SURRENDERED AMOUNT FOR THE PURPOSES OF TAX. 17. WE, THUS, ANSWER THE QUESTIONS AS FORMULATED AB OVE, IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE FIND ING NO FAULT WITH THE DECISIONS OF THE CIT(A) AS WELL AS T HE TRIBUNAL. AS A RESULT, THIS APPEAL IS DISMISSED. 7(3) IN VIEW OF THE DECISIONS DISCUSSED SUPRA I FIND THAT CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURAT E PARTICULAR OF INCOME BY THE ASSESSEE HAS TO BE IN THE INCOME TAX RETURN FILED BY IT. THE ASSESSEE CAN FURNISH THE PARTICULARS OF INCOME IN HIS RETURN AND EVERYTHING WOULD DEPEND UPON THE INCOME TAX RETURN FILED BY THE ASSESSEE. THIS VIEW GETS SUPPORTED BY EXPLANATION 4 AS WELL AS 5 AND 5A OF SECTION 271 OF THE ACT. IN THE INSTANT CASE T HE APPELLANT HAS INCLUDED THE SURRENDERED AMOUNT OF RS.77,42,720/- I N THE REVISED RETURN OF INCOME FILED BY IT. THERE IS NO SUCH CONC EALMENT OR NON- DISCLOSURE AS THE ASSESSEE HAD MADE A COMPLETE DISC LOSURE IN THE INCOME TAX RETURN AND OFFERED THE SURRENDERED AMOUN T FOR THE PURPOSES OF TAX. 8(4) RESPECTFULLY FOLLOWING THE CASES (SUPRA), I FIN D THAT THE SURRENDERED AMOUNT HAVING BEEN INCLUDED IN THE REVI SED RETURN OF INCOME, IT DOES NOT ATTRACT PENALTY UNDER SECTION 2 71(1)(C) OF THE ACT. IN ACCORDANCE WITH THE DISCUSSION ABOVE, THE PE NALTY OF RS.23,95,000/- LEVIED BY THE AO UNDER SECTION 271(1 )(C) OF THE ACT IS CANCELLED. THE APPELLANT GETS THE CONSEQUENTIAL REL IEF. I.T.A. NO.372/LKW/2017 ASSESSMENT YEAR:2013-14 8 4.1 FINDING NO INFIRMITY IN THE ORDER OF LEARNED CI T(A), THE APPEAL OF THE REVENUE STANDS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 07/09/2018) SD/. SD/. (PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR ) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED:07/09/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. R EGISTRAR