PUSHPA SHARMA,NOIDA V. DCIT, CENTRAL CIRCLE

ITA 363/DEL/2024

AI Insights

The case involves an appeal by Pushpa Sharma against the penalty imposed by the Deputy Commissioner of Income Tax (DCIT), Central Circle, Ghaziabad, following a search and seizure operation under section 132 of the Income Tax Act. The penalty was levied due to a discrepancy of Rs.20,000 in the income declared in the original return and the return filed in response to the notice under section 153A. The Tribunal noted that the income declared in the latter return was accepted by the Assessing Officer and no additions were made, thus there was no basis for the penalty. The Tribunal referenced the decision in Pr. CIT Vs. Neeraj Jindal to support the view that the mere acceptance of the revised return post-search negates the grounds for penalty under section 271(1)(c).

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 312942 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Other Referred Cases: Pr. CIT Vs. Neeraj Jindal (393 ITR 1)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OM PARKASH
• Assessee Lawyers: AKASH KUMAR; JAIND KUMAR JAISWAL
• Keywords: Difference of opinion; Change of opinion; Revised return; Search and seizure
• Section: 271(1)(c); 132; 153A; 139; 80C

Judgement Text

"I.T.A.No.363/Del/2024 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC” NEW DELHI BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER आ.अ.सं/.I.T.A No.363/Del/2024 िनधा रणवष /Assessment Year: 2016-17 PUSHPA SHARMA T-3/203, PARSAVNATH PRESTIGE-II, SECTOR-93A, NOIDA, Uttar Pradesh. बनाम Vs. DCIT, Central Circle, CGO Complex-1, Hapur Chungi, Ghaziabad. PAN No.ACEPS7979L अपीलाथ\u0012 Appellant \u0014\u0015यथ\u0012/Respondent िनधा\u0007\bरतीक ओरसे /Assessee by Shri Akash Kumar, Adv. & Shri Jaind Kumar Jaiswal, Adv. राज\u0012वक ओरसे /Revenue by Shri Om Parkash, Sr. DR सुनवाईक तारीख/ Date of hearing: 25.04.2025 उ\u0018ोषणाक तारीख/Pronouncement on 30.04.2025 आदेश /O R D E R This appeal is filed by the assessee against the order of the Ld. CIT(Appeals)-3, Noida dated 16.01.2024 for the AY 2016-17 in sustaining the penalty of Rs.6200/- levied u/s 271(1)(c) of the Act. 2. Briefly stated the facts are that there was search and seizure operation u/s 132 of the Act on 16.06.2017 in the premises of the assessee. The assessment u/s 143(3)/153A was completed on 21.12.2019 accepting the income of Rs.12,59,740/- returned by the I.T.A.No.363/Del/2024 2 assessee in response to notice u/s 153A of the Act. The Assessing Officer initiated penalty proceedings u/s 271(1)(c) of the Act since there was a difference of income to the extent of Rs.20,000/- declared by the assessee in the return filed u/s 139(1) of the Act and the return filed in response to notice u/s 153A of the Act. The Assessing Officer passed penalty order u/s 271(1)(c) of the Act levying penalty of Rs.6200/- on the differential amount of Rs.20,000/- observing that but for the search the assessee would not have declared additional income of Rs.20,000/- in the return filed in response to notice u/s 153A of the Act. 3. On appeal the Ld. CIT(Appeals) sustained the penalty. The Ld. Counsel for the assessee referring to the order of the Ld. CIT(Appeals) submits that the assessee contended that the difference in income declared in the return filed u/s 153A when compared with the original return is only on account of difference in claim made u/s 80C of the Act. Ld. Counsel submits that the income declared by the assessee in response to 153A has been accepted by the Assessing Officer and no addition was made on account of such material and therefore there is no concealment of income or furnishing of inaccurate particulars. 4. Ld. DR supported the orders of the authorities below. I.T.A.No.363/Del/2024 3 5. On hearing both the parties, it is noticed that the AO levied penalty of Rs.6200/- on account of difference of income shown by the assessee in the original return of income filed in response to notice u/s 153A of the Act. Whatever income is returned by the assessee in the return filed in response to notice u/s 153A was accepted and no addition whatsoever has been made by the AO as there was nothing found during search action conducted u/s 132 of the Act in the case of the assessee. It is the contention of the assessee that the difference of income of Rs.20,000/- in the return filed originally and the return filed after the search was only on account of slight mistake in claiming the deduction u/s 80C of the Act. This contention of the assessee was completely overlooked by the authorities below. In my opinion this is not fit case of levy of penalty as there was no concealment of income or furnishing of inaccurate particulars of income was established. At best it is only a mere change of opinion and not a case of concealment of income or furnishing of inaccurate particulars of income. 6. In the case of Pr. CIT Vs. Neeraj Jindal (393 ITR 1) the Hon’ble Jurisdictional High Court held that when the returned income u/s 153A was accepted there was no concealment of income and there I.T.A.No.363/Del/2024 4 cannot be any levy of penalty u/s 271(1)(c) of the Act while holding so the Hon’ble High Court observed as under: - “The levy of penalty u/s 271(1)(c) of the Act is not automatic. For levy of penalty u/s 271(1)(c), the conditions laid out therein have to be specifically fulfilled. Section 271(1)(c) of the Act, being in the nature of a penal provision, requires strict construction. The word “conceal” in section 271(1)(c) would require the Assessing Officer to prove that specifically there was some conduct on the part of the assessee which would show that the assessee consciously intended to hide his income. When an assessee has filed revised returns after a search has been conducted, and such revised returns have been accepted by the Assessing Officer, merely by virtue of the fact that such return showed a higher income, penalty u/s 271(1)(c) cannot be automatically imposed. Considering that the non obstante clause u/s 153A excludes the application, inter alia, of section 139, it is clear that the revised return filed u/s 153A takes the place of the original return u/s 139, for the purposes of all other provisions of the Act. Thus, it is clear that when the Assessing Officer has accepted the revised return filed by the assessee u/s 153A, no occasion arises to refer to the previous return filed u/s 139 of the Act. For all purposes, including for the purpose of levying penalty u/s 271(1)(c) of the Act, the return that has to be looked at is the one filed u/s 153A.” Respectfully following the said decision the penalty levied in this case by the AO is hereby deleted. 7. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 30/04/2025 Sd/- (C.N. PRASAD) JUDICIAL MEMBER I.T.A.No.363/Del/2024 5 Dated: 30.04.2025 *Kavita Arora, Sr. P.S. Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI "