SHRI SAURABH SHARMA,JAIPUR vs. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, JAIPUR

Rival contentions have been heard the record perused. From the record I found that the assessee was credited with the interest by the bank which was not known to him, therefore, interest income could not 2 ITA 1301 & 1302/JP/2018 Saurabh Sharma Vs DCIT be offered in the return filed U/s 139(1) of the Act. Thereafter, the assessee filed return wheein he offered interest of Rs. 1,08,550/- and Rs. 1,38,580 for the A.Y. 2011-12 and 2012-13. On this interest income, the A.O. has levied penalty U/s 271(1)(c) of the Act.

With respect to difference in the interest income, not offer in the return filed U/s 139(1) of the Act, the A.O. had levied the penalty of Rs. 11,200/- for the A.Y. 2011-12 and Rs. 28,600/- for the A.Y. 2012-13. By the impugned order, the ld. CIT(A) confirmed the action of the A.O., against which the assessee is in further appeals before the ITAT.

It was argued by the ld AR of the assessee that neither in the assessment order nor in the penalty notice issued by the A.O., it has been specified as to whether the charge against the assessee is for concealment of income or for furnishing inaccurate particulars of income. Hence, in the absence of any specific charge against the assessee, penalty confirmed by the ld. CIT(A) is bad in law.

It was further contended that not returning the interest income was bonafide mistake of the assessee, accordingly, the penalty was not to be levied.

3 ITA 1301 & 1302/JP/2018 Saurabh Sharma Vs DCIT 6. I have considered the rival contentions and carefully gone through the orders of the authorities below. In this case, penalty has been imposed by invoking explanation 5A to Section 271(1)(c) of the Act. Explanation 5A to section 271(1)(c) applies where any money, bullion, jewellery or other valuable article or thing or any incriminating material not recorded in the books of accounts is found. In the present case, the bank interest which is offered for tax is not on account of any incriminating material found in course of search. Further, section 153A provides that a return filed in response to notice u/s 153A would be considered as if such return is a return required to be furnished u/s 139. Therefore, once the assessee suo moto declared any income in the return filed in response to notice u/s 153A without reference to any incriminating material or any money, bullion, jewellery or valuable article or thing found in search, the same cannot be subject matter of penalty under Explanation 5A(ii) of section 271(1)(c). Reliance in this connection is placed on the decision of the Hon’ble Delhi High Court in the case of PCIT Vs Neeraj Jindal (2017) 393 ITR 1 (Del)(HC). I also observe that it was a bonafaide mistake of the assessee not to disclose the interest income in so far as it was credited in the passbook but was not known to the assessee. When this mistake was came to his notice,

In the result, both the appeals of the assessee are allowed.