ITO, CHENNAI V. B.Jayaraman, CHENNAI

ITA 776/CHNY/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90509 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 23-04-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 22-04-2013
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: R SIVARAMAN
• Keywords: Search and seizure; Revised return
• Section: 133A; 148

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHE NNAI , . !' !' !' !' , # # # # $% $% $% $% BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI V. DURGA RAO, JUDICIAL MEMBER ./ I.T.A.NO.776/MDS/2013 # ' &' / ASSESSMENT YEAR :2006-07 THE INCOME TAX OFFICER, COMPANY WARD II(1), ROOM NO. 515, 5 TH FLOOR, NEW BLOCK, 121, M.G. ROAD, CHENNAI 600 034. VS. SHRI B. JAYARAMAN, JAI EXPO, 5, O.P. RAMAN STREET, GANDHI NAGAR, AVADI, CHENNAI 600 054. [PAN: AACPJ8700C] ( '( '( '( '( /APPELLANT ) ( )*'( )*'( )*'( )*'( / RESPONDENT ) '( + , / APPELLANT BY : SHRI S. DASGUPTA, JCIT )*'( + , / RESPONDENT BY : SHRI R. SIVARAMAN, ADVOCATE + - / DATE OF HEARING : 23.04.2015 ./& + - /DATE OF PRONOUNCEMENT : 19.06.2015 0 0 0 0 / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) I, COIMBAT ORE, DATED 12.02.2013 RELEVANT TO THE ASSESSMENT YEAR 2006-07. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE H AS FILED RETURN OF INCOME BY ADMITTING TOTAL INCOME OF .1,14,30,042/-. THE RETURN FILED BY THE ASSESSEE WAS ACCEPTED AND ASSESSMENT WAS COMPLETED. THEREAFT ER, THE ASSESSING I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 2 OFFICER HAS ISSUED A NOTICE UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT AND INITIATED PENALTY PROCEEDINGS AGAINST THE ASSES SEE. THE REASONS STATED BY THE ASSESSING OFFICER TO INITIATE THE PENALTY PR OCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT ARE THAT THE ASSESSEE WAS SUPP OSE TO FILED THE RETURN OF INCOME ON OR BEFORE 31.10.2006 AS PER SECTION 139(1 ) OF THE ACT. HOWEVER, THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 31.0 3.2008 AFTER SURVEY UNDER SECTION 133A OF THE ACT WAS CONDUCTED ON 07.0 3.2008. THEREFORE, THE ASSESSING OFFICE CAME TO A CONCLUSION THAT THE RETU RN WAS FILED ONLY BECAUSE OF SURVEY CONDUCTED AND IT IS A CONCEALMENT OF INCO ME AND THEREFORE, INITIATED PENALTY PROCEEDINGS. THE ASSESSEE HAS EXP LAINED DETAILED REASONS FOR NOT FILING RETURN OF INCOME AND ALSO NOT SHOWIN G THE SALE TRANSACTION WITH HIS WIFE AS A POWER OF ATTORNEY HOLDER BY LETTER DA TED 02.02.2009. HOWEVER, THE ASSESSING OFFICER HAS NOT AGREED WITH THE SUBMI SSIONS OF THE ASSESSEE AND LEVIED THE PENALTY ON THE GROUND THAT THE RETUR N OF INCOME WAS FILED ONLY AFTER THE SURVEY CONDUCTED AND IT IS TANTAMOUNT TO CONCEALMENT OF INCOME. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFOR E THE LD. CIT(A) AND REITERATED THE SUBMISSIONS AS MADE BEFORE THE ASSES SING OFFICER. THE LD. CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE AS SESSEE, DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER ON THE GROU ND THAT THERE IS NO CONCEALMENT. THE RELEVANT PORTION OF THE ORDER OF T HE LD. CIT(A) IS EXTRACTED AS UNDER: I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 3 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MA DE BY THE APPELLANT AND ALSO THE ORDER OF THE ASSESSING OFFICER. THE AS SESSEE FILED HIS ORIGINAL RETURN OF INCOME ON 31.3.2008. A SURVEY WA S CONDUCTED ON 7.3.2008 BEFORE THE APPELLANT FILED HIS RETURN OF I NCOME. AS SEEN FROM THE PENALTY ORDER U/S 271(1)(C), THE ASSESSING OFFICER HAD SOME INFORMATION IN THE FORM OF ANNUAL INFORMATION RETURN. THE INFOR MATION WAS THAT THE ASSESSEE HAS PURCHASED PROPERTY TO THE TUNE OF RS.5 ,57,40,000/-. IN VIEW OF THIS AND ALSO IN VIEW OF THE FACT THAT THE ASSES SEE DID NOT FILE ANY RETURN ON HIS OWN U/S 139(1), A SURVEY WAS UNDERTAK EN ON 7.3.2008. THE ASSESSEE FILED A RETURN ON 31.3.2008 ADMITTING INCO ME OF RS.1,14,30,042/- AND PAID TAX OF RS.54,40,101/- U/S 140A. THE ASSESSMENT WAS COMPLETED ON 26.12.2008 ON AN INCOME OF RS.1,19,94,442/-. AS THE ASSESSEE DID NOT FILE THE RETURN OF INCOME SUOMOTO WITHIN THE TIME ALLOWED U/S 139(1) AND AS T HE RETURN WAS FILED ONLY AFTER THE SURVEY U/S 133A, PENALTY PROCEEDINGS WERE INITIATED. THE APPELLANT DURING THE COURSE OF PENALTY PROCEEDINGS FILED A REPLY DATED 2.2.2009 BEFORE THE ASSESSING OFFICER EXPLAINING TH E FACTS OF THE CASE. THE ASSESSING OFFICER AFTER CONSIDERING THE ASSESSEE'S SUBMISSIONS, HELD THAT THE ASSESSEE FILED THE RETURN OF INCOME ONLY AFTER A SURVEY U/S 133A WAS CONDUCTED ON 7.3.2008 AND TREATED THE FILING OF THE RETURN OF INCOME AFTER THE SURVEY ACTION AS CONCEALMENT OF INCOME AND LEVI ED PENALTY U/S 271(1)(C). 7. COMING TO THE FACTS OF THE CASE, THE ANNUAL INF ORMATION REPORT WAS ONE OF THE BASIS FOR CONDUCTING SURVEY. AS PER THE PENALTY ORDER, THE AIR INFORMATION WAS THAT THE ASSESSEE HAD PURCHASED SOME PROPERTY TO THE TUNE OF RS.5,57,40,000. THE ASSESSEE HAD PURCHA SED 555 CENTS OF LAND FROM SHAW WALLACE LIMITED IN 2002 AND THE PROPERTY WAS REFLECTED IN THE PROPRIETARY CONCERN M/S JAK ESTATES AS ADVANCE GIVE N TO SHAW WALLACE LIMITED. A SWORN STATEMENT WAS RECORDED FROM THE AS SESSEE DURING THE COURSE OF SURVEY OPERATION ON 7.3.2008. AS SEEN FRO M THE STATEMENT, THE ASSESSEE FURNISHED BOOKS OF ACCOUNT, PROFIT AND LOS S ACCOUNT AND BALANCE SHEET FOR THE FINANCIAL YEAR 200506 AND 2006-07. TH E LEARNED AR SUBMITTED THAT AT THE TIME OF SURVEY, RETURNS WERE IN THE PROCESS OF PREPARATION AND THE ASSESSEE WAS PREPARING TO PAY T HE TAXES BEFORE 31.3.2008. THE ASSESSING OFFICER HAS ALSO COLLECTED TWO CHEQUES ON THE SAME DAY AND DEPOSITED INTO THE BANK ON 31.3.2008. AFTER OBTAINING THE CHALLAN FROM THE ASSESSING OFFICER, THE RETURN WAS IMMEDIATELY FILED ON 31.3.2008. THE SUBMISSIONS OF THE AR THAT THE DEPAR TMENT HAS NOT FOUND ANY CONCEALMENT IN THE BOOKS OF ACCOUNT, NOR THE 8. AS SEEN FROM THE STATEMENT RECORDED, IN RESPONS E TO QUESTION NO.24, THE ASSESSEE STATED 'I HAVE PURCHASED ONLY O NE PROPERTY FOR I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 4 RS.L,85,80,000/- AND I AM GIVING YOU A COPY OF THE DOCUMENT. OTHER THAN THIS PURCHASE, I HAVE NOT PURCHASED ANY OTHER PROPE RTY'. THE ASSESSING OFFICER QUESTIONED THE ASSESSEE REGARDING THE SALE DEEDS EXECUTED BY HIM AS POWER HOLDER IN FAVOUR OF SMT.J.AMSAVENI, HIS WI FE AMOUNTING TO RS.2,44,96,000/- AND RS.1,88,85,000/-. THE ASSESSEE SUBMITTED THAT HE HAS NOT RECEIVED ANY SALE CONSIDERATION FROM HIS WI FE. THE AR FURTHER SUBMITTED THAT THE ASSESSEE HAS ENTERED INTO AGREEM ENT OF SALE ON 2.9.2002 FOR PURCHASE OF SHAW WALLACE PROPERTY. THE ASSESSEE HAS BROUGHT THE POWER OF ATTORNEY ON 13.12.2002. THE PR OPERTY WAS NOT REGISTERED IN THE NAME OF THE ASSESSEE. THE ASSESSE E APPROACHED THE FINANCIAL INSTITUTIONS FOR THE DEVELOPMENT OF THE P ROPERTY AND HE WAS NOT SUCCESSFUL. IN THE MEAN TIME, MR. MANU CHABBRIA, CH AIRMAN OF SHAW WALLACE EXPIRED AND MANY CHANGES HAVE TAKEN PLACE I N THE BOARD OF SHAW WALLACE. THE AR SUBMITTED THAT BECAUSE OF THE CHANGE OF DIRECTORS IN THE BOARD, IT WAS ADVISED TO THE ASSESSEE NOT TO APPROACH THE BOARD FOR REGISTERING THE LAND IN HIS NAME AS IT MAY WORK AGA INST HIM. FURTHER, THE ADVOCATE HAS ADVISED THAT AS PER LAW, THE POWER OF ATTORNEY HOLDER CANNOT REGISTER THE LAND IN HIS NAME. SO, TO PROTEC T HIS INVESTMENT IN THE LAND, A PORTION OF THE LAND WAS REGISTERED IN THE N AME OF THE ASSESSEE'S WIFE. THE SUB-REGISTRAR HOWEVER, REFUSED TO REGISTE R THE LAND AT ORIGINAL AGREEMENT OF SALE VALUE AND REGISTRATION WAS DONE A S PER GUIDE LINE VALUE. THIS HAS RESULTED IN BOOK PROFIT ON THE PAPE R AND THERE WAS NO REAL CASH PROFIT TO THE ASSESSEE. 9. THE AR ARGUED THAT THE APPELLANT SOLD THE PROPE RTY TO HIS WIFE TO RETAIN THE PROPERTY IN HIS CUSTODY AND PAID HUGE IN COME TAX ON THE PROFIT. THE AR'S ARGUMENT THAT THE APPELLANT HAS ALREADY SU FFERED INCOME TAX ON THE PROFIT MADE BY HIM BY REGISTERING THE PROPERTY ON HIS WIFE'S NAME AND THERE WAS NO CONCEALMENT TO THAT EXTENT ON THE SALE OF THE PROPERTY HAS SOME MERIT. THE ASSESSING OFFICER IN HIS ORDER COULD NOT BRING ANY INSTANCE OF CONCEALMENT OF INCOME IN THE BOOKS OF T HE ASSESSEE REGARDING THESE SALE OF THE PROPERTY HAS SOME MERIT. THE ASSE SSING OFFICER IN HIS ORDER COULD NOT BRING ANY INSTANCE OF CONCEALMENT O F INCOME IN THE BOOKS OF THE ASSESSEE REGARDING THESE TRANSACTIONS. THE APPELLANT ALSO SUBMITTED THAT BECAUSE OF FINANCIAL PROBLEM AND IN THE THINKING THAT SINCE IT WAS TRANSFER TO HIS OWN WIFE, HE HAS NOT P AID THE TAXES ON THE PROFITS ON SALE OF LAND TO HIS WIFE. IT WAS ALSO ST ATED BY THE APPELLANT THAT ON THE DAY OF THE SURVEY, THE DETAILS WERE BEING PR EPARED TO FILE THE RETURN OF INCOME AND FUNDS WERE GATHERED TO PAY THE TAXES. THE ASSESSING OFFICER HAS NOT SERVED ANY NOTICE U/S 148 TO SAY THAT INCOME HAS ESCAPED ASSESSMENT. IT IS ALSO NOT THE CASE THA T THERE WAS CONCEALMENT BY THE ASSESSEE REGARDING THE INVESTMEN TS AS MENTIONED IN THE AIR. I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 5 10. EXAMINING THE FACTS OF THE CASE, THE PROPERTY WAS HELD ON POWER OF ATTORNEY BY THE APPELLANT AND BECAUSE OF THE SUD DEN DEATH OF MR.MANU CHABBRIA, CHAIRMAN OF SHAW WALLACE, TO PROT ECT HIS INTEREST IN THE LAND, THE PROPERTY WAS TRANSFERRED TO THE NA ME OF HIS WIFE. THE ASSESSEE ALSO FILED THE COPY OF THE DOCUMENT SHOWIN G THE REGISTRATION OF THE PROPERTY IN THE NAME OF HIS WIFE SMT.J.AMSAVENI . THE AR ALSO STATED THAT THE CHEQUE (SHOWN IN THE DOCUMENT) ON PUNJAB N ATIONAL BANK, AVADI, CHENNAI, FOR RS.L,88,85,000/- WAS NEVER ENCA SHED AND THE ASSESSEE HAS NOT GOT ANY PROFIT IN THIS TRANSACTION . AS SEEN FROM THE FACTS, GOING BY THE INTENTION OF THE ASSESSEE TO SAVE HIS PROPERTY, HE HAS PAID INCOME TAX ON THE PROFITS MADE BY REGISTERING THE P ROPERTY IN THE NAME OF HIS WIFE. THERE WAS NO ACTUAL PROFIT DERIVED BY THE ASSESSEE IN THIS TRANSACTION. THE MAIN GROUND ON WHICH PENALTY WAS L EVIED WAS BECAUSE THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION WITHIN THE DUE DATE THEREBY NOT PAYING THE TAXES DUE TO THE GOVERNMENT WHICH RESULTED IN CONCEALMENT OF INCOME. THE ASSESSEE HAS ALSO PAID INTEREST FOR THE DELAY IN FI LING THE RETURN. ALL THESE FACTS WERE ALSO SUBMITTED TO THE ASSESSING OFFICER IN THE ASSESSEE'S LETTER DATED 2.2.2009. THE ASSESSEE ALSO RELIED ON THE DEC ISION OF THE SUPREME COURT IN THE CASE OF SUDHARSHAN SILKS AND SAREES VS . CIT (2008) 200 ITR 2005 (SC). INTO CONSIDERATION, IN MY OPINION, THERE IS NO CONC EALMENT BY THE APPELLANT NOR HAS ANY EVIDENCE BEEN BROUGHT ON RECO RD TO SHOW THAT THERE IS CONCEALMENT OF INCOME IN THE BOOKS OF ACCO UNT. IN VIEW OF THIS, THE ASSESSING OFFICER IS DIRECTED TO DELETE THE PEN ALTY. THE GROUNDS OF APPEAL ARE ALLOWED. 4. ON BEING AGGRIEVED, THE REVENUE IS IN APPEAL BE FORE THE TRIBUNAL. 5. THE LD. DR HAS STRONGLY SUPPORTED THE PENALTY O RDER PASSED BY THE ASSESSING OFFICER AND RELIED ON THE DECISION IN THE CASE OF MAK DATA P. LTD. V. CIT 358 ITR 593 (SC). 6. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSE SSEE HAS SUBMITTED THAT THE ASSESSEE HAVING TIME TO FILE RETURN OF INC OME AS PER SECTION 139(4) OF THE ACT AND ACCORDINGLY RETURN WAS FILED AND TAX ES WERE PAID. THEREFORE, I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 6 THERE IS NO CONCEALMENT. HE HAS RELIED ON THE DECIS ION IN THE CASE OF CIT V. S.V. ENTERPRISE 304 ITR 175(BOM). 7. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN THIS CA SE, THERE A SURVEY WAS CONDUCTED UNDER SECTION 133A OF THE ACT ON 07.03.20 08 BASED ON THE ANNUAL INFORMATION RETURN. SUBSEQUENTLY, THE ASSESS EE HAS FILED THE RETURN OF INCOME ON 31.03.2008 AS PER SECTION 139(4) OF TH E ACT AND TAXES WERE PAID. SUBSEQUENTLY, THE ASSESSING OFFICER HAS ISSUE D A NOTICE UNDER SECTION 271(1)(C) OF THE ACT TO THE ASSESSEE ON THE GROUND THAT SINCE THE RETURN FILED BY THE ASSESSEE WAS AFTER SURVEY CONDUCTED UNDER SE CTION 133A OF THE ACT, WHY PENALTY UNDER SECTION 271(1)(C) OF THE ACT SHOU LD NOT BE LEVIED. THE ASSESSEE, IN RESPECT OF THE PENALTY, IT WAS SUBMITT ED BEFORE THE ASSESSING OFFICER THAT DURING THE SURVEY, NO NOTICE UNDER SEC TION 148 OR 139(2) OF THE ACT WAS SERVED AS IT WAS REALIZED THAT THE RETURN W AS READY FOR FILING AND PENDING FOR TAX PAYMENTS AND THE DELAY IN FILING TH E RETURN WAS DUE TO THE WRONG ADVICE GIVEN BY THE ADVOCATE THAT SALE IS ONL Y A BENAMI TRANSACTION AND NO SALE PROCEEDS WERE RECEIVED FROM THE BUYER A ND PRAYED BEFORE THE ASSESSING OFFICER THAT PENALTY PROCEEDINGS MAY BE D ROPPED. 8. AFTER CONSIDERING THE EXPLANATIONS OF THE ASSES SEE, THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HAS NOT FILE D THE RETURN AS PROVIDED UNDER SECTION 139(1) OF THE ACT. THE RETURN WAS FIL ED ONLY AFTER CONDUCTING I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 7 THE SURVEY. NO EVIDENCES WERE FURNISHED WITH REGARD TO THE ADVICE GIVEN BY THE LAWYER. THE AUDITORS REPORT IS ALREADY AVAILAB LE AS ON 30.10.2006, WHICH SHOWS THAT THE ASSESSEE IS AWARE OF HIS TAX OBLIGAT IONS AS EARLY AS ON 30.10.2006 I.E. THE DUE DATE OF FILING OF RETURN UN DER SECTION 139(1) OF THE ACT. IF THE RETURN OF INCOME WAS READY EVEN BEFORE THE DATE OF SURVEY, IT WAS NOT KNOWN AS TO WHAT PREVENTED THE ASSESSEE IN FILI NG THE RETURN OF INCOME IMMEDIATELY AFTER THE SURVEY. THE DATE OF SURVEY WA S ON 07.03.2008 AND THE ASSESSEE FILED THE RETURN ONLY ON 31.03.2008. IF TH E RETURN WAS READY, WHY SHOULD THE ASSESSEE WAITED FROM 07.03.2008 TO 31.03 .2008, WHICH CLEARLY SHOWS THAT THE ASSESSEE HAD TO TAKE ENOUGH TIME AFT ER SURVEY TO PREPARE THE RETURN OF INCOME AND FILE IT ON THE LAST DATE AVAIL ABLE UNDER SECTION 139(4) OF THE ACT, WHERE THE DUE DATE UNDER SECTION 139(1) WA S 31.10.2006 ITSELF. THEREFORE, THE ASSESSING OFFICER HAS GIVEN A CATEGO RICAL FINDING THAT NON FILING OF RETURN WITHIN THE DUE DATE IS NOT INCIDEN TAL, BUT DELIBERATE ATTEMPT TO CONCEAL THE INCOME. IT IS ONLY BECAUSE OF THE SURVE Y CONDUCTED ON THE ASSESSEE, BASED ON THE ANNUAL INFORMATION RETURN, T HE ASSESSEE HAS TO DISCLOSE THE INCOME AND FILED THE RETURN OF INCOME ACCORDINGLY. NON-FILING OF RETURN WITHIN THE DUE DATE COUPLED WITH NON PAYMENT OF TAXES DUE TO THE GOVERNMENT BEFORE THE DUE DATE AND FILING THE RETUR N OF INCOME ONLY AFTER THE SURVEY ACTION IS AMOUNTING TO CONCEALMENT OF INCOME AND THEREFORE, THE ASSESSING OFFICER HAS LEVIED THE PENALTY UNDER SECT ION 271(1)(C) OF THE ACT. ON APPEAL, THE LD. CIT(A) HAS OBSERVED THAT THE PRO PERTY WAS HELD BY THE I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 8 ASSESSEE AS POWER OF ATTORNEY AND SUBSEQUENTLY, THE SAME WAS TRANSFERRED TO HIS WIFE AND HIS WIFE HAS ISSUED A CHEQUE FOR .1,85,80,000/- AND THE ASSESSEE NEVER ENCASHED THE CHEQUE AND THE ASSESSEE HAS GOT NO PROFIT IN THE TRANSACTION. THE ASSESSEE HAS FILED THE RETURN OF INCOME WITH DELAY AND PAID TAXES. THEREFORE, THERE IS NO CONCEALMENT BY T HE ASSESSEE NOR ANY EVIDENCE HAS BEEN BROUGHT ON RECORD TO SHOW THAT TH ERE IS CONCEALMENT OF INCOME IN THE BOOKS OF ACCOUNT. THE LD. CIT(A), BY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SUDHARSHAN SILKS AND SAREES V. CIT (SUPRA), DELETED THE PENALTY LEVIED BY THE ASSE SSING OFFICER. IN THIS CASE, THERE WAS A SURVEY CONDUCTED ON 07.03.2008 BASED ON THE ANNUAL INFORMATION RETURN AND SUBSEQUENTLY, THE ASSESSEE H AS FILED HIS RETURN OF INCOME ON 31.03.2008 I.E. THE LAST DAY AVAILABLE FO R THE ASSESSEE AS PER SECTION 139(4) OF THE ACT. DURING THE COURSE OF PEN ALTY PROCEEDINGS, THE ASSESSEE HAS REPLIED THAT DURING THE SURVEY NO NOTI CE UNDER SECTION 148 OR 139(2) WAS SERVED AND THE RETURN WAS READY FOR FILI NG PENDING FOR TAX PAYMENTS. THE ASSESSEE HAS ALSO SUBMITTED THAT THE DELAY IN FILING THE RETURN WAS DUE TO WRONG ADVICE GIVEN BY THE ADVOCATE THAT SALE IS ONLY A BENAMI TRANSACTION AND NO SALE PROCEEDS WERE RECEIVED FROM THE BUYER. THE ASSESSING OFFICER HAS CONSIDERED THE EXPLANATION OF THE ASSESSEE AND OBSERVED THAT THE AUDIT REPORT DATED 30.10.2006 WAS AVAILABLE WITH THE ASSESSEE AND AWARE THAT HE HAS TO PAY TAX. HE FURTH ER OBSERVED THAT THE ASSESSEE HAS EXPLAINED THAT THE RETURN IS READY AND , THE RETURN WAS ONLY I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 9 FILED ON 31.03.2008, AFTER A GAP OF 24 DAYS. AFTER CONSIDERING THE ENTIRE FACTS OF THE CASE, WE FIND THAT THE ASSESSEE HAS FILED TH E RETURN OF INCOME AS PER SECTION 139(4) WITH A DELAY DUE TO SURVEY CONDUCTED BY THE DEPARTMENT. THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY INITIA TED PENALTY PROCEEDINGS AND LEVIED THE PENALTY ON THE GROUND THAT THE ASSES SEE HAS CONCEALED THE INCOME WITHOUT FILING THE RETURN IN TIME AND BECAUS E OF THE SURVEY, THE ASSESSEE HAS FILED THE RETURN SINCE THE SURVEY WAS CONDUCTED BASED ON THE ANNUAL INFORMATION RETURN RECEIVED BY THE DEPARTMEN T. IN SO FAR AS EXPLANATION OF THE ASSESSEE IS CONCERNED, AS A POWE R OF ATTORNEY HOLDER, HE HAS SOLD THE PROPERTY TO HIS WIFE THEREBY THE ASSES SEE HAS NOT GAINED ANYTHING. THE POINT FOR CONSIDERATION BEFORE US IS WHETHER THE ASSESSEE HAS GAINED ANY BENEFIT OR NOT, BUT, AS TO WHY THE ASSES SEE HAS NOT FILED THE RETURN OF INCOME WHEN THE SAME IS STATED READY FOR FILING AS WELL AS THE AUDIT REPORT DATED 30.10.2006 WAS AVAILABLE WITH THE ASSE SSEE AND AWARE THAT HE HAS TO PAY TAX. THE ASSESSEE HAS FILED THE RETURN O F INCOME ON 31.03.2008 I.E., ONLY AFTER THE SURVEY CONDUCTED BY THE DEPART MENT ON 07.03.2008 BASED ON THE ANNUAL INFORMATION RETURN RECEIVED BY THE AS SESSING OFFICER. ALL THESE FACTS PROVE THAT THE ASSESSEE WANTED TO CONCE AL THE SALE TRANSACTION BETWEEN HIM AND HIS WIFE. THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY INVOKED SECTION 271(1)(C) OF THE ACT AND LEVIED PEN ALTY. WE ALSO FIND THAT IT IS NOTHING BUT CONCEALMENT OF INCOME. THE LD. CIT(A), WITHOUT CONSIDERING THE ACTS PROPERLY, SIMPLY DELETED THE PENALTY BY OBSERV ING THAT THE ASSESSEE HAS I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 10 PAID INTEREST FOR THE DELAY IN FILING OF THE RETURN OF THE INCOME. ALL THE FACTS WERE SUBMITTED TO THE ASSESSING OFFICER IN HIS LETT ER DATED 02.02.2009 AND BY FOLLOWING THE DECISION IN THE CASE OF SUDHARSHAN SILKS AND SAREES V. CIT (SUPRA), HELD THAT THERE IS NO CONCEALMENT. WE FIND THAT THE LD. CIT(A) HAS NOT CONSIDERED THE ISSUE PROPERLY. THE REASON FOR L EVYING PENALTY IN THIS CASE IS THAT THE RETURN FILED BY THE ASSESSEE UNDER SECT ION 139(4) WAS AFTER CONDUCTING THE SURVEY BASED ON THE ANNUAL INFORMATI ON RETURN RECEIVED BY THE DEPARTMENT. THE LD. CIT(A) FAILED TO CONSIDER W HETHER THE RETURN FILED BY THE ASSESSEE UNDER SECTION 139(4) IS VOLUNTARY OR D UE TO SURVEY. THAT APART, THE LD. CIT(A) SIMPLY FOLLOWED THE HONBLE SUPREME COURT JUDGMENT WITHOUT CONSIDERING THE FACTS OF THE CASE. 9. IN THE CASE OF SUDHARSHAN SILKS AND SAREES V. C IT 300 ITR 205 (SC), THE FACTS ARE THAT THE DISCLOSURE OF ADDITIONAL INC OME IN THE REVISED RETURN AFTER SEARCH AND SEIZURE AND ASSESSMENTS WERE PASSE D ON ESTIMATED INCOME DISCLOSED IN THE REVISED RETURN RATHER THAN ON THE BASIS OF INCRIMINATING MATERIALS FOUND DURING THE SEARCH. UN DER THESE FACTS AND CIRCUMSTANCES OF THE CASE, THE HONBLE SUPREME COUR T HAS CONSIDERED THE IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF TH E ACT. HOWEVER, THE PRESENT CASE IS ENTIRELY DIFFERENT FROM THE CASE DE CIDED BY THE HONBLE SUPREME COURT AND HAS NO APPLICATION. I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 11 10. IN VIEW OF THE ABOVE, WE FIND THAT THE LD. CIT (A) HAS NOT CONSIDERED THE FACTS AND CIRCUMSTANCES AGAINST WHICH THE PENALTY W AS LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE AC T AND WE FIND THAT THE ASSESSING OFFICER HAS RIGHTLY LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT. ACCORDINGLY, WE REVERSE THE ORDER PASSED BY TH E LD. CIT(A) AND UPHOLD THE ORDER OF THE ASSESSING OFFICER. 11. IN SO FAR AS THE CASE LAW RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE IS CONCERNED, IN THE CASE OF CIT V. S.V. ENTERPRISE 304 ITR 175(BOM), WHEREIN THE ASSESSEE HAS VOLUNTARILY FILED THE RETU RN DECLARING THE SALES MADE BY THE SISTER CONCERN IN THE ABSENCE OF SEIZUR E OF BOOKS OF ACCOUNTS OF THE ASSESSEE, IN THE ABSENCE OF ISSUE OF ANY NOTICE UNDER SECTION 139(2) OR 148 TO THE ASSESSEE. THE DEPARTMENTAL REPRESENTATIV E HAVING CONCEDED BEFORE THE TRIBUNAL THAT THE EXPLANATION 3 TO SECTI ON 271(1)(C) OF THE ACT WAS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. TH EREFORE, THE HONBLE BOMBAY HIGH COURT HAS HELD THAT NO REFERABLE QUESTI ON RAISED OUT OF THE ORDER OF THE TRIBUNAL HOLDING THAT THERE IS NO CONC EALMENT OF INCOME. THE ABOVE CASE LAW RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE IS ENTIRELY DIFFERENT FROM THE FACTS OF THE PRESENT CASE. IN TH E PRESENT CASE, THE PENALTY WAS LEVIED ON THE GROUND THAT THE ASSESSEE FILED TH E RETURN OF INCOME UNDER SECTION 139(4) BECAUSE OF SURVEY CONDUCTED BY THE D EPARTMENT BASED ON THE ANNUAL INFORMATION RETURN. I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NO. .. .776 776776 776/M/ /M/ /M/ /M/1 11 13 33 3 12 12. IN VIEW OF THE ABOVE, WE CONFIRM THE PENALTY L EVIED BY THE ASSESSING OFFICER AND ACCORDINGLY, THE APPEAL FILED BY THE RE VENUE IS ALLOWED. 13. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED ON FRIDAY, THE 19 TH OF JUNE, 2015 AT CHENNAI. SD/- SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER CHENNAI, DATED, THE 19.06.2015 VM/- 0 + )#-12 32&- /COPY TO: 1. '( / APPELLANT, 2. )*'( / RESPONDENT, 3. 4 ( ) /CIT(A), 4. 4 /CIT, 5. 25! )#-# /DR & 6. !6' 7 /GF.