HITESHA SACHIN TAKUR,MUMBAI vs. ITO WARD 22(1)(6), MUMBAI

Briefly, the facts of the case are that the assessee did not file her return of income originally u/s. 139(1) of the Act. Subsequently, the proceedings were initiated u/s. 147 and notice u/s. 148 was issued. In response, the assessee filed her return of income stating that the same

The reassessment proceedings were thereafter conducted after calling for necessary information/documentation and the same were completed u/s. 143(3) r.w.s. 147 of the Act, dated 04.03.2024, wherein the income declared by the assessee in her return of income pursuant to notice u/s. 148 was accepted. No addition, disallowances or variation of any nature was made to the returned income and the refund of Rs. 55,244/- was determined and the assessment proceedings attained finality in terms of income so disclosed by the assesse in her return of income.

Separately, penalty proceedings u/s. 271(1)(c) of the Act were initiated and subsequently, the Assessing Officer levied the penalty u/s. 271(1)(c) amounting to Rs. 3,75,652/- on the reasoning that the assessee had failed to file the return of income u/s. 139(1) of the Act and that the income came to be disclosed only pursuant to reopening of assessment proceedings and the tax sought to be evaded was determined at Rs. 3,75,652/- and minimum penalty @ 100% of tax to be evaded amounting to Rs. 3,75,652/- was levied vide order passed u/s. 271(1)(c) of the Act, dated 26.09.2024.

The assessee thereafter carried the matter in appeal before the ld. CIT(A) and it was submitted that although the return of income was not filed u/s. 139(1) of the Act, the return was duly filed in response to notice u/s. 148 of the Act, wherein the entire income for the year was fully and

The submissions so filed by the assessee were considered by the ld CIT(A). As per the ld. CIT(A), it is an admitted position emerging from the assessment records that the return of income filed by the assessee in response to notice u/s. 148 was accepted in full and that no addition or disallowance, or variation was made to the income so returned while completing the reassessment u/s. 143(3) read with Section 147. Thus, there is no dispute with regard to the quantum of income assessed which remains identical to the income disclosed by the assessee in the return filed pursuant to reopening proceedings. It was held that in the present case, the penalty has been levied essentially on the premise that the assessee had not filed the return of u/s. 139(1) and that the income came to light only pursuant to reopening of the assessment. The ld CIT(A) held that such reasoning, by itself, does not automatically meet the statutory threshold required u/s. 271(1)(c); however, the explanation to section 271(1)(c) places an onus on the assessee to establish that the failure to disclose income at the initial stage was supported by a bonafide explanation and that all material facts were subsequently disclosed. It was held that in the instant case, the failure to file the return of income u/s. 139(1) resulted in initiation of reassessment proceedings, during which income chargeable to tax came to be disclosed only pursuant to notice u/s. 148. It was held that the penalty proceedings u/s. 271(1)(c),

Against the said order and findings of the ld CIT(A), the assessee is in appeal before us.

During the course of hearing, the ld. AR reiterated the submissions made before the lower authorities and it was submitted that all the income stood fully disclosed in the return filed in response to notice u/s. 148, that the AO accepted such disclosure without any modification, and that there was neither concealment of income nor furnishing of inaccurate particulars of income so as to warrant the levy of penalty u/s. 271(1)(c) of the Act. Further, reliance was placed on the Coordinate Bench decision in case of Dwarka Cement Works Limited vs. ITO (ITA No. 6706/Mum/2025, dated 23.02.2026) wherein the Coordinate Bench has rejected one of the arguments of the ld. CIT(A), wherein he has invoked the Explanation 1 to section 271(1)(c) and it was held that the said explanation and the principles therein would apply where there is an addition or disallowance sustained in reassessment giving rise to deemed concealment and given that in the said case, in the reassessment order, the Assessing Officer has not made any addition over and above the income returned u/s. 148, it was held that the foundational requirement for invocation of Explanation 1 itself is absent. It was accordingly submitted that in the instant case as well, since there is no variation or adjustment made to the returned income, Explanation 1 to section

Further, our reference was drawn to the Explanation (3) to Section 271(1)(c) and it was submitted that even if, the case of the assessee falls under any of the Explanations, it is Explanation (3) to section 271(1)(c) which needs to be considered and the said explanation has to be read along with clause (c) to Explanation (4) to section 271(1)(c) which defines the term tax sought to be evaded in cases where Explanation (3) applies.

It was submitted that Explanation (3) talks about the situation where the assessee fails without the reasonable cause to furnish within the period specified under sub-section (1) of Section 153, a return of its income which is required to be furnished u/s. 139 and until the expiry of the period aforesaid, no notice has been issued to him and the Assessing Officer is satisfied that in respect of such assessment year, such person has taxable income, then such person shall for the purposes of clause (c), be deemed to have concealed the particulars of his income in respect of such assessment year notwithstanding that such person furnishes a return of his income, at any time, after the expiry of period aforesaid in pursuance of the notice u/s. 148 of the Act. It was submitted that though the Assessing Officer and the ld. CIT(A) have not talked specifically about the Explanation (3), if at all, any Explanation has to be invoked, it is the Explanation (3) as the assessee could not furnish her original return of income u/s 139 and it is only pursuant to notice issued u/s Section 148, the return of income has been furnished.

It was further submitted that the Explanation (3) has to be read along with the meaning of “the amount of tax sought to be evaded” and which is provided in clause (c) to Explanation (4) where it provides that “where in any case to which Explanation 3 applies, the amount to tax sought to be

It was submitted that in the instant case, it is an admitted fact as evident from the records that an amount of Rs. 4,30,896/- has been deducted at source from salary and interest income and those taxes have been deducted and deposited well before furnishing the return of income in response to notice u/s 148 and in the return of income, the assessee has claimed due credit of the same and even the Assessing Officer for determining the tax liability has taken the same into account, wherein, he has determined the tax liability at Rs. 3,75,652/- and after giving credit of TDS amounting to Rs. 4,30,896/-, has determined the refund due to the assessee amounting to Rs. 55,244/-. It was accordingly submitted that on this limited ground itself, the assessee deserves the necessary relief as there is no tax sought to be evaded as the taxes were already deposited by way of TDS prior to the filing of the return of income itself and therefore, there is no question of any tax sought to be evaded by the assessee. It was submitted that the assessee has infact made the reference thereof in her submissions before the Assessing Officer which however, has not appreciated by the Assessing Officer while determining the tax sought to be evaded without taking into consideration the taxes already deducted at source and the penalty has been levied simpliciter taking the tax liability so determined and the findings of the Assessing officer have thereafter been confirmed by the ld. CIT(A).

The ld. DR has been heard, who has relied on the order passed by the lower authorities.

We have heard the rival contentions and perused the material available on record. Admittedly, it is a case where the assessee has filed her return of income pursuant to notice u/s. 148 of the Act. No

It is further noted that the return income so filed by the assessee has been accepted and there has been no adjustment or variation and the returned income amounting to Rs. 18,05,950/- has been assessed as such at the same figure and the tax liability has been determined at Rs. 3,75,652/- and as against that, there is already tax deposited on behalf of the assessee by way of TDS amounting to Rs. 4,30,896/- well before the issuance of notice u/s 148 of the Act. Therefore, being a case of deemed concealment in terms of Explanation (3), one has to read the same along with clause (c) of Explanation (4) for determining the tax sought to be evaded and in this regard, we find merit in the contentions advanced by the ld. AR that there is no tax sought to be evaded as the tax already deducted and deposited prior to issuance of notice u/s 148 exceeds the final tax liability so determined by the Assessing Officer. In light of the same, we find that there is no basis and justification for levy of penalty amounting to Rs. 3,75,652/- u/s 271(1)(c) of the Act and the same is hereby directed to be deleted.

In the result, the appeal filed by the assessee is allowed.