THE DCIT, CENTRAL CIRCLE-3,, SURAT vs. M/S. SHAH & DESAI CONSTRUCTION,, SURAT

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 1 of 13 आयकर अपीलीय अिधकरण,सुरत �यायपीठ, सुरत IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT �ीमती िदवा िसंह, �ाियक सद� तथा �ी ओ.पी.मीना, लेखा सद� के सम� BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER S. Vs आ.अ.सं./I.T.A अपीलाथ� Appellant ��यथ�/Respondent No . No. & िनधा�रण वष� /A Y: 1 2961/Ahd/2016 Deputy Commissioner Vs Milestone Developers, of Income Tax, . T.P.No.80, Survey No.O.P.11, A.Y. 2013-14 Central F.P.11, Sultanabad, Surat. Circle-3, Surat – 395 [PAN: AASFM 5005 D] 001. 2 2962/Ahd/2016 Deputy Commissioner Vs Milestone Developers, of Income Tax, . T.P. Scheme No.1 F.P.124, A.Y. 2013-14 Central Udhana Magdalla Road, Vesu, Circle-3, Surat – 395 Surat. 001. [PAN: AASFM 7781 J] 3 2963/Ahd/2016 Deputy Commissioner Vs Milestone Developers, of Income Tax, . 1st Floor, Silver Palm-2, A.Y.2013-14 Central Opp.Sneh Milan Garden, Circle-3, Surat – 395 Kadampalli, Nanpura, Surat. 001. [PAN: AATFM 4502 E] 4 2965/Ahd/2016 Deputy Commissioner Vs Chhaya Associates, of Income Tax, . F.P.No.93-B, Nr. Meghana Row A.Y.2013-14 Central House, City Light Road, Surat. Circle-3, Surat – 395 [PAN: AAIFC 1386 M] 001. 5 2970/Ahd/2016 The Income Tax Vs Avantis Enterprise, Officer, . Block No.09, Opp.Sangini, A.Y. 2013-14 Ward-2(3)(1), Surat. Soliter, VIP Road, Bharthana, Surat. [PAN: AAVFA 8511 F] 6 2971/Ahd/2016 Deputy Commissioner Vs Prime Developers, of Income Tax, . F.P.No.55, RS No.45, TP No.63, A.Y. 2013-14 Circle-2(3), Surat – Vadod. 395 001. [PAN: AAMFP 2349 H] 7 3024/Ahd/2016 Deputy Commissioner Vs Shah & Desai Construction, of Income Tax, . T1951/A, Kailash Nagar, A.Y.2013-14 Central Circle-3, Surat Sagrampura, Surat. – 395 001. [PAN: ABSFS 7071 A] 8 3025/Ahd/2016 Deputy Commissioner Vs Shantinath Developers, of Income Tax, . F.P.44-45, T.P.6, VIP Road, A.Y.2013-14 CentralCircle-3, Surat Surat. – 395 001. [PAN: ACDFS 7182 G] 9 3047/Ahd/2016 Deputy Commissioner Vs VIP Corporation, of Income Tax, . Block No.70, F.P.No.96, VIP A.Y. 2013-14 Circle-2(3), Surat – Road, Bhimrad. Dist-Sruat – 395 001. 395007. [PAN: AAJFV 3986 B]

िनधा�रती क� ओर से /Assessee by Shri Dhawal Mehta - CA राज�व क� ओर से /Revenue by Shri Srinivas T.Bidari – Sr.DR

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 2 of 13 09.01.2019 सुनवाई की तारीख/ Date of hearing: 25.01.2019 उ�ोषणा क� तारीख/Pronouncement on: आदेश /O R D E R PER BENCH: 1. These appeals by Nine assessee’s are being decided by a common order as facts and circumstances and position of law in terms of the prayer made by the parties before the Bench remain identical in each of these appeals. These appeals have been filed by the Revenue pertaining to 2013- 14 in the respective appeals which arise out of identical orders passed by the CIT(A)-4, Surat wherein the quashing of the penalty proceedings u/s.271(1)(c) has been assailed. The grounds raised by Revenue in ITA No.2961/Ahd/2016 for A.Y. 2. 2013-14 as under : “1. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in deleting the penalty of Rs.1,,08,15,000/- u/s.271(1)(c) of the Act without appreciating the fact that had there been no survey action, undisclosed income of Rs.3,50,00,000/- would have remained undetected and whole amount would have escaped from the gaze of tax. Further, assessee’s intention to avoid paying taxes is clear from the fact that entries in diaries found during the survey proceedings were not entered in the books of account. Moreover, during the penalty proceedings, the assessee has failed to give any justification or acceptable explanation against charge of furnishing inaccurate particulars of income. 2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in deleting the penalty of Rs.1,08,15,000/- u/s.271 (1)(c) of the Act without appreciating the fact that the assessee has failed to fulfill its legal obligation to explain the nature and source of each cash credit entry appearing in its books of account. Onus to substantiate the claim that it has been earned as business income lies upon the assessee which was not discharged by the assessee. 3. On the facts and in the circumstances of the case, the Ld.CIT(A) ought to have upheld the penalty order of the Assessing Officer. 4. It is, therefore, prayed that the order of the CIT(A) may be set aside and that of Assessing Officer may be restored to the above extent. 5. The appellant craves to add, modify or alter any grounds during the course of appellate proceedings.” The ld.CIT-DR Mr.Srinivas T.Bidari referring to these Nine appeals 3. submitted that he would be referring to the facts as recorded in ITA No.2961/Ahd/2016 which are identical in each of these appeals. Reference would be made referring to the statements of facts filed by the DCIT, Cricle-2(3), Surat and the findings recorded in the assessment year.

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 3 of 13 The ld.CIT(DR) submitted that the assessee has disclosed income in 4. the survey action conducted on the assessee on 05.03.2013 at the business premises. The assessee was required to give the relevant details of the persons from whom on-money was stated to have been received. It was his submission that the amount disclosed in the survey is an afterthought although it was included in the income of the assessee under the head of business and profession but since details were not made available, the AO in the absence of relevant details held it taxable u/s.68 of the Income Tax Act. On the basis of this penalty proceedings have been initiated and the penalty has been levied. Inviting our attention to the penalty order and the reply of the assessee in the penalty proceedings vide letter dated 08.09.2015 which was considered and not accepted. The same reads as under : “3.1 During the course of survey, the assessee has made disclosure of Rs.3.50 cr. For the current assessment year. The assessee has shown and offered this disclosure for the taxation in the audit report as well as in the return of income filed and paid the due taxes before the due date for filing the return of income. 3.2 The penalty proceedings is initiated since, the assessee has declared the undisclosed income during the course of survey action and offered for taxation, however, the undisclosed income was considered as deemed income u/s.68 of the Act and initiated penalty proceedings considering the assessee has furnished inaccurate particulars of income. 3.2 It is respectfully submit that the act of concealment is committed at the time of filing of the return. What is punishable u/s 271(1)(c) is actual concealment of income in the return of income and not merely an intention to make concealment. If the assessee rectifies itself and declares the correct income in the valid return of income and does not file any return by concealing the income then such act is not punishable u/s 271(1)(c) of the Act. In other way, the assessee should not be held to be liable to penalty u/s.271(1)(c) in respect of disclosure made in the return of income which he had declared in the original return of income filed within the due time. 3.3 The basis of charging the assessee with the act of concealment or for that matter with furnishing of inaccurate particulars of his income is the return. The return filed in the instant case is not even a revised return. For establishing concealment in a case, it is necessary that a return of income was filed and that the income concealed is omitted from being included in the income returned. The mere fact that a survey took place and the assessee, in his return for the relevant previous year, voluntarily offered some amount as his income would not per se lead to the charge of concealment being proved automatically. There is no presumption of concealment unless positively established. Therefore, there was no occasion even for initiation of proceedings u/s.271(1)(c), much less for imposition of penalty there under. 3.4 In this case, there is no dispute about the fact that there was survey action u/s.133A and the assessee offered additional income of Rs.3.50 cr. The income offered was duly declared in the return of income for the A.Y. 2013-14. The assessment of the assessee has also been completed u/s.134(3), with same as returned income. Now the question is whether to levy the penalty u/s.271(1)(c) with there is no difference in the returned income and assessed income.”

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 4 of 13 The explanation was not accepted, the AO levied penalty summing 5. up the points for arriving at his conclusion on which heavy reliance is laced by the Revenue. The relevant extract is reproduced hereunder : “Thus, the following points emerge as regards to the penalty proceedings : 1. The assessee has failed to give any justification or acceptable explanation against charge of furnishing inaccurate particulars of income; 2. In the penalty proceedings, the assessee has failed to advance any evidence in support of its claims and contentions and all the arguments of the assessee have been found to be of no consequence. 3. Further, the assessee has not preferred an appeal before the CIT[A] against the assessment order u/s. 143[3] dtd. 16.3.2015, which proves that the assessee has no objection to the disclosed income of Rs.3,50,00,000/- being considered as deemed income u/s.68 of the I.T.Act. Hence, logically and inescapably, this case falls within the mischief of section 271(1)(c). The case of the assessee clearly attracts the penal provision of section 271(1)(c).” 6. Relying on the said para the ld.CIT-DR inviting our attention to the impugned order submitted that relief has been granted by the CIT(A) for the reasons set out in para 7 to 7.2 which is assailed by the Revenue. The relevant extract which is common in these group of cases is extracted hereunder for ready reference : 7. I have gone through the facts of the case, the penalty order, the assessment order, the submissions and the case law on the issue including that relied upon by the AO and the appellant. The appellant in the submissions has challenged the imposition of penalty and has pleaded that the penalty cannot be levied on merits, pleading that the income in question was disclosed during the course of survey itself as income earned outside books of account from project, the income was duly introduced into the books of account, was disclosed in the return of income and the AO has only changed the head of income without making any addition on this issue. 7.1 As far as the imposition of penalty is concerned, the AO's case is basically built on the following premise: a) Although it has shown the income accepted during the course of survey in its returns, it has not been able to substantiate with details and evidences, the claim that it has been earned as business income from the project'. It is alleged that the appellant failed to give the details of persons to whom the residential plots at Gokuldham, Varachha were sold and the details of on money receipt and how exactly the income has been worked out. b) In the absence of evidence to prove that the income has been earned from on money, and also as the firm as per the partnership deed is allowed to do other activities also; it cannot be accepted that the income has been earned from business of construction only. c) The assessee would not have disclosed the impugned income if survey proceedings u/s. 133A were not conducted. d) The AO held that in absence of such details, the amount credited to the books of account (as income) is not explained and the addition of the income is required u/s. 68 of the Act. Consequently, the AO taxed it under the 'Income from Other Sources' as against it being declared as 'Business Income' during the course of survey as well as in the return of income. e) The appellant has not appealed against the order u/s. 143(3). f) The AO held that in the above circumstances, the appellant has furnished inaccurate particulars of such income and went on to levy penalty @ 100% u/s. 271 (l)(c) for such default.

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 5 of 13 7.2 Considering the entire gamut of facts and circumstances, the following pertinent observations/decisions are made on the issue: a) The total income returned and the assessed income is the same. The penalty u/s. 271(l)(c) of the Act starts from the furnishing of details of income in the return and not before that. This is clear from the scheme of the Act and has been held and observed time and again including in the following cases: i) The Hon'ble High Court of Rajasthan in the case of CIT v. Unique Precured Retraders (2008) 13 DTR (Raj) 215. ii) The Hon'ble Jurisdictional High Court of Gujarat in the case of Principal CIT Vs. Valibhai Khanbhai Mankad 2015-TIOL 2164-HC- Ahm-IT has held that penalty u/s. 271 (1) (c) cannot be levied when there is no dispute with regard to fact that the particulars of income disclosed during the course of survey were duly reflected in the return of income. iii) The Hon'ble High Court of Delhi in the case of CIT Vs. SAS Pharmaceuticals (2011) 335 ITR 0259 (Del). b) No penalty is leviable just because an issue was not appealed against the quantum order. Time and again it has been held that the penalty proceedings are separate from the assessment proceedings. This cannot be a ground for imposition of penalty. The AO has to independently establish its case for default u/s. 271(l)(c). The Hon'ble Supreme Court in case of CIT vs. Khoday Eswarsa & Sons 1972 CTR (SC) 295 : (1972) 83 ITR 369, the same position was reiterated. In that case, the Tribunal had stated that there might be justification for making additions in the original assessment order to the amount shown in the return, but those additions by themselves could not lead to the inference that the assessee had concealed its income or had deliberately furnished incorrect particulars. It was furthermore stated that cogent material or evidence is necessary before penalty can be levied. Another judgment which I would like to cite is the CIT vs. Koduri Papa Rao (1976) 102 ITR 834 (AP), a decision of the Andhra Pradesh High Court to the same effect. c) A survey action was carried out at the business premises of the appellant firm on 05-03-2013, wherein a small pocket diary showing receipts of on-money in the current year was found and impounded as Annexure- A/10, Page 1. A statement of the main person of the group viz. Shri Rajendra D.Shah was recorded on oath wherein he stated that the total of all the entries in the impounded diary worked out to Rs.3,50,00,000/- and he admitted the same as unaccounted income being on-money receipts from his project ‘Milestone Aquatica’. Thus, in this case, during the course of survey the appellant was confronted with impounded documents. At the very instance, it was accepted that this is income earned from the project from the ‘on-money’ receipts. The survey team did not make further enquiries nor was it established that these represented any other income. It is not a case where it was found/established that the income disclosed was not full and true. The department has not built a case where the explanation of the appellant has been to be false or not bona fide. Even the conditions of Explanation 1 of section 271(1)(c) are not applicable in such a case. d) No penalty can be imposed where the income has been disclosed merely because of change of head of income. This has been held in numerous cases including 1) The Hon'ble High Court of Delhi in the case of CIT Vs. Amit Jain (2013) 351 ITR 0074 has held that merely because assessee has shown income in return as short term capital gain, which was assessed by AO as business income, it cannot amount to furnishing of inaccurate particulars for purpose of levy of penalty u/s.271 (1)(c). 2) The Hon'ble Mumbai Bench of the ITAT in the case of ITO Vs. Roborant Investments (P) Ltd. (2006) 7 SOT 181 (Mumbai) has held that the assessee having made full and complete disclosure, merely because income returned by assessee under a particular head was assessed by the AO under another head is not sufficient to impose penalty by invoking Expln. 1 to s. 271 (1 )(c).

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 6 of 13

In the totality of facts and circumstances of the case, the penalty u/s 271(1) (c) is held not imposable; where no addition has been made to the total income assessed vis-a- vis the returned income with respect to the impugned income, it involves allegation of a mere change of head without any tax effect, no explanation has been proved bogus or mala fide. Therefore it is directed to be deleted. The grounds of appeal are allowed. 8. In the result, the appeal of the assessee is allowed. The ld.CIT-DR in support of the departmental grounds assailing the 7. quashing of the penalty order submitted that the relief granted by the CIT(A) is contrary to the proposition of law as laid down by the Apex Court in the case of Mak Data Pvt. Ltd., 358 ITR 593 (SC). Accordingly it was his prayer that the impugned order may be set-aside and the penalty order may be upheld.

The ld.AR inviting our attention to the material available on record 8. submitted that in the facts of the present case, the assessee has consistently accepted the fact that on-money has been received from the business of sale of plots of the project Milestone Aquatic. It was his submission that in the related concerns no doubt various other objects may have been stated. However, it was consistently the fact on record that this was the only activity carried out by the assessee boking of plots at Milestone Aquatica. Referring to the replies of the assessee in each of these cases, it was submitted that the assessee in the course of the assessment proceedings has carried out business as consistently made out the case that the respective assessees were engaged in plotting etc., It was submitted that since there was no other business except this business thus merely because the AO did not accept the source of the income and changed the head of income from business income to income from other sources etc., the penalty provisions u/s.271(1)(c) are not attracted.

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 7 of 13 the AO as has been held by the Hon'ble Jurisdiction of Gujarat High Court in the case of PCIT-1 vs Valibhai Khanbhai Mankad (Tax Appeal No.445/2015 dated 07.09.2015) wherein the Hon'ble High Court observed in para 5 as under: “5. From the findings recorded by the Tribunal, it is evident that the factum of deletion of addition in respect of non-deduction of tax by the assessee was not controverted by the revenue. The Tribunal has further found that the penalty had been levied on the amount which was reflected in the original return as income. That it was an undisputed fact that the assessee had declared this income in his original return of income, although it was a belated return. The Tribunal was of the view that as per the provisions of section 271(1)(c) of the Act, penalty can be imposed if the assessee had concealed the particulars of income or has furnished inaccurate particulars of such income. That in the present case, there was no dispute with regard to the fact that the particulars of income were reflected in the return of income. Moreover, it was not the case of the revenue that the returns of income filed were invalid and in fact, the Assessing Officer had proceeded on the basis of the return filed by the assessee and particulars furnished therein. From the findings recorded by the Tribunal, it is evident that the Tribunal has found as a matter of fact that there was no concealment of particulars of income on the part of the respondent assessee and in fact, the Assessing Officer had proceeded on the basis of the return filed by the assessee and particulars furnished therein. Under the circumstances, in the absence of any concealment of the particulars of income or furnishing of inaccurate particulars of income on the part of the assessee, no infirmity can be found in the impugned order passed by the Tribunal in confirming the order passed by the Commissioner (Appeals) in deleting the penalty under section 271(1)(c) of the Act. In the absence of any infirmity in the impugned order passed by the Tribunal, it is not possible to state that the impugned order gives rise to any question of law much less, any substantial question of law so as to warrant interference. The appeal accordingly dismissed.” The ld.AR further submitted relying on decision in the case of 10. M/s.Vaibhav Enterprises vs. ACIT, Circle-3 in ITA No.430/Ahd/2011 dated 08.06.2016 (Ahd. ITAT) which is squarely applicable to the assessee’s case. The Ld.AR also relied in the DCIT, Circle-3, Surat vs. M/s.Suyog Corporation in ITA No.568/Ahd/2012 for A.Y. 2008-09 cited by some other AR in group cases to the proposition that the moment the additions have been made in the taxable income of the assessee, even on account of disclosure made by the assessee during the course of survey proceedings then that amount would be considered as business profit of the assessee. Hence, the disclosure made by the assessee on the basis of material found during the course of survey pertaining to sale of plotting are related to only business income as the AO has not brought out anything contrary to the record that the income disclosed during the course of survey was from the other sources. The ld.AR contended that the assessee has disclosed the amount surrendered during the course of survey in the return of income, hence, the assessee has not concealed the particulars of its income and furnished inaccurate particulars of such income as per Clause (C) of section 271 of the Act makes it clear that the act of the concealment of or furnishing of

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 8 of 13 inaccurate particulars is relatable only in respect of return being filed and as such in case where the such of filing of return has not been breached, there was no question of invocation of penal provisions of section 271(1)(c) of the Act. In support of this contention, the ld.AR has placed reliance in the case of ACIT, Circle-4, Surat vs. Jupiter Distillery 1555/Ahd/2009 dated 16.12.2011 wherein relying on the decision of CIT, Ahmedabad vs Reliance Petro Products Ltd [2010] 322 ITR 158 (SC), the penalty levied on the amount disclosed during the survey and included in the return of income was deleted. The ld.AR further placed reliance on the decision in the case of ITO vs Roborant Investments Pvt. Ltd [2006] 7 SOT 181, CIT Vs. Aretic Investment (P) Ltd. [2010] 39 DTR 293 (Del).

Ld.AR also submitted that the reliance placed by the Revenue on the 11. decision in the case of Mak Data Pvt. Ltd. vs. CIT [2013] 358 ITR 593 (SC), is misplaced in the present case. In the said case, a survey was conducted more than 10 months before and the disclosure was made by the assessee later during the course of assessment proceedings. Therefore, the Hon'ble Supreme Court had held that the assessee had no intention to include the income found during the course of survey whereas in the facts of the present case the amount disclosed during survey was duly included in the original return of income filed after the date of survey. Therefore, the facts of the said case are distinguishable. Further, there is no difference in the return of income and the income assessed.

It was further argued that as per provisions of section 271(1)(c) in 12. order to levy penalty there must on the amount of tax sought to be evaded by reason of concealment of income. In the facts of the case there is no difference in the return of income and assessed income and taxes paid. Therefore, the provisions of section 271(1)(c) are not attracted. Further, as per Explanation 4 to section 271(1)(c) there is a mechanism for calculation of penalty, according to which the penalty could be calculated with reference to the income of which tax sought to be evaded whereas in the present case the assessee has duly paid taxes along with while filing the return of income, therefore there was no evasion of tax sought to be evaded. The ld.AR also placed reliance on the following decisions in support of contentions i.e. CIT vs. Unique Precured Retraders [2008] 13 DTR (Raj-215), CIT vs SAS Pharmaceuticals

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 9 of 13 [2011] 335 ITR 259 (Del), M/s.Sadbhava Builders vs ITO 1418/Ahd/2008, Ahmedabad Tribunal, CIT Vs. Amit Jain [2013] 351 ITR 74 Del, CIT vs Reliance Petro Products Pvt. Ltd., [2010] 322 158 ITR (SC) and other as per their comes law paper book.

We have heard the parties and perused the material available on 13. record and gone through the above case laws. There is no dispute about the fact that there was a survey action u/s.133A, and the assessee offered additional income therein. The income so offered was duly declared in the return of income and the assessment was framed. Apart from his activity of plotting and development it was submitted that there was no other source of income. This position we find has not been disputed by the Revenue. The assessment of the assessee has also been completed u/s.143(3) duly accepting the declared income in the assessment order albeit with a change of head from business income to income u/s.68. Now the question which arises for consideration is whether is whether there is any justification on the part of the AO to levy the penalty u/s.271(1)(c)? when there is no difference in the return of income and assessed income. For the sake of convenience the provisions of section 271(1)(c) are produced as under : “”Sec. 271(1) –If the Assessing Officer or the Commissioner (Appeals) [or the Commissioner] in the course of any proceedings under this Act, is satisfied that any person – (a)…………. (b)………… (c) has concealed the particulars of his income or furnished inaccurate particulars of such income, or (d)………. He may direct that such person shall pay by way of penalty – Explanation – 1 –Where in respect of any facts material to the computation of the total income of any person under this Act,- (A) such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Commissioner to be false or (B) such person offers an explanation which he is not able to substantiate and [fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him]. Then the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section be deemed to represent the income in respect of which particulars have been concealed.” From the last portion of the section i.e.” the amount added or 14. disallowed in computing total income be deemed to represent the income in respect of which particulars have been concealed” would

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 10 of 13 indicate that it is only the addition or disallowance to the total income that would represent the income for the purposes of levy of penalty within the meaning of Explanation-1 to section 271(1)(c). In other words, if no addition or disallowance is made in computing total income then there will not be any income which can be deemed as income in respect of which particulars have been concealed. Clause (c) to explanation-4 to section 271(1)(c) explains the amount of tax sought to evaded. It means the difference between tax on the total income assessed and the tax that would have been chargeable at such total income is reduced by the amount added. Since in the present case, the AO has not made any addition in the returned income, question of working out any tax sought to be evaded would not arise. For the sake of convenience we reproduce Explanation - 4 to section 271(1)(c) as under :- “Explanation-4 – For the purposes of clause (iii) of this sub-section, the expression ‘the amount of tax sought to be evaded’- [(a) in any case where the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished has the effect of reducing the loss declared in the return or converting that loss into income, means the tax that would have been chargeable on the income in respect of which particulars have been concealed or inaccurate particulars have been furnished had such income been the total income;] (b) in any case to which Explanation 3 applies, means the tax on the total income assessed [as reduced by the amount of advance tax, tax deducted at source, tax collected at source and self-assessment tax paid before the issue of notice under section 148]; (c) in any other case, means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished.] Thus in general, where a case does not fall within clause (a) or clause (b) there cannot be any “tax sought to be evaded” if there is no addition to the returned income. Thus the basis for levy of penalty is return of income. If any amount 15. has been shown in the return of income, then it cannot be said that assessee has concealed any particular about that income or furnished inaccurate particulars in relation thereto. There cannot be any concealment prior to filing of return. Question of consideration whether assessee is liable for action under section 271(1)(c) would arise only when return of income is scrutinized by the AO and he finds some more items of income or additional income over and above what is declared in the return. If it is so, the assessee would be liable for action under section 271(1)(c) in respect of such items only which are discovered by the AO on the scrutiny of return of income or after carrying out investigation and discovering some more items of income not found

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 11 of 13 declared or mentioned in the return of income. Prior to filing of return of income there is no concept of concealment or furnishing of inaccurate particulars.

The initial phrase used in section 271(1)(c) suggests that AO has to 16. find in the course of any proceedings under this Act that assessee has concealed the particulars of his income or furnished inaccurate particulars of such income. In fact, the proceedings against the assessee would start only after return of income is filed by the assessee or after issuance of statutory notice against him such as under section 142(1) or u/s 143(2). Carrying out survey under section 133A is not at all any proceedings. Proceedings as used in section 271(1)(c) are statutory proceedings initiated against the assessee either by issuance of statutory notice or after filing of return of income. Survey u/s.133A or search under section 132 or issuance of notice u/s.133(6) for example, are only means of collecting evidence against the assessee and are not equivalent to statutory proceedings. Another criteria of finding out ks to be seen whether it can be brought to a legal conclusion against the assessee by determining his right or liability. Merely carrying out survey under section 133A does not create any liability against the assessee which is created only through assessment proceedings or penalty proceedings. Therefore, the ld.DR is incorrect in his submission that survey being a proceedings and AO has discovered concealment during survey, therefore, the assessee is liable for penalty under section 271(1)(c).

We further find support from the reliance placed by the ld.AR on the 17. decision in the case of PCIT vs Valibhai Khanbhai Mankad [TIOL 2164-HC- AHM-IT [2015] wherein Hon'ble Gujarat High Court in para 5 the observed as under : “5. From the findings recorded by the Tribunal, it is evident that the factum of deletion of addition in respect of non-deduction of tax by the assessee was not controverted by the revenue. The Tribunal has further found that the penalty had been levied on the amount which was reflected in the original return as income. That it was an undisputed fact that the assessee had declared this income in his original return of income, although it was a belated return. The Tribunal was of the view that as per the provisions of section 271(1)(c) of the Act, penalty can be imposed if the assessee had concealed the particulars of income or has furnished inaccurate particulars of such income. That in the present case, there was no dispute with regard to the fact that the particulars of income were reflected in the return of income. Moreover, it was not the case of the revenue that the returns of income filed were invalid and in fact, the Assessing Officer had proceeded on the basis of the return filed by the assessee and particulars furnished therein. From the findings recorded by the Tribunal, it is evident that the Tribunal has found as a matter of fact that there was no concealment of particulars of income on the part of the respondent assessee and in fact, the Assessing Officer had proceeded on the basis of the return filed by the assessee

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 12 of 13 and particulars furnished therein. Under the circumstances, in the absence of any concealment of the particulars of income or furnishing of inaccurate particulars of income on the part of the assessee, no infirmity can be found in the impugned order passed by the Tribunal in confirming the order passed by the Commissioner (Appeals) in deleting the penalty under section 271(1)(c) of the Act. In the absence of any infirmity in the impugned order passed by the Tribunal, it is not possible to state that the impugned order gives rise to any question of law much less, any substantial question of law so as to warrant interference. The appeal accordingly dismissed.” We further note that the ld.AR has placed reliance in case of CIT vs 18. Amit Jain [2013] 33 taxmann.com 178 (Del) wherein the Hon'ble Delhi High Court has held in para 3 as under : “3. This court notices that the Tribunal, while upholding the order of the Appellate Commissioner, relied upon the decision in CIT v. Reliance Petroproducts (P.) Ltd. [2010] 322 ITR 158/189 Taxman 322 (SC). Furthermore, the record reveals that the amount in question, which formed the basis for the Assessing Officer to levy penalty-was in fact truthfully reported in the returns. In view of this circumstance, that the Assessing Office chose to treat the income under some other head cannot characterize the particulars or reported in the return as an “inaccurate particulars” or as suppression of facts. The court is also conscious of the decision of the Supreme Court in Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191 where it was held that it is up to the Assessing Officer to interpret the return and discern as to which head of income the amount had to be brought to tax” Therefore, in the light of ratio of above decision no penalty is 19. leviable wherein even in the change of heads of income is made by the AO during the course of assessment proceedings.

The ld.DR has relied on the judgment of Mak Data Pvt. Ltd. vs. CIT 20. [2013] 358 ITR 593 (SC), however, same is not applicable in the present case as in that case the survey was conducted more than 10 months before filing of returns and the disclosure was made by the assessee later during the course of assessment proceedings, whereas in the present case the amount disclosed during survey was duly included in the original return of income filed after the date of survey. Therefore, the facts of the said case are distinguishable. Further, there is no difference in the return of income and the income.

In the light of above facts and circumstances and case laws we are 21. of the considered opinion that it is not a case of furnishing inaccurate particulars 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 nor there is a tax sought to be evaded on the basis of return of income as the assessee has not evaded any tax on the return income. The Hon'ble Delhi High Court in the case of SAS Pharmaceuticals [2011] 335 ITR 259 (Del) has considered the expression in the course of any proceedings under this Act appearing in section 271 of the Act and held that the said expression cannot have

Milestone Developers & Others in ITA No’s: 2961 to 65, 70, 71, 3024, 25 & 3047 of 2016 / A.Y. 2013-14 Page 13 of 13 reference to the survey proceedings. It has also held that penalty proceedings would depend upon the return of income filed by the assessee.

In the light of above facts and case laws relied by the ld.AR, we find 22. no reason to interfere with the order of ld.CIT(A) and we accordingly confirm the same. Accordingly, the grounds of appeal as raised by the Revenue are therefore dismissed. The finding in this case is mutatis mutandis apply to all the group of Nine Appeals mentioned in above table at page 1 & 2, accordingly all the grounds in respect of above Nine Appeals are dismissed. 23. In the result, all the Nine Appeals of various assessee’s as listed above table at page 1 & 2 filed by the Revenue are dismissed. The order pronounced on 25-01-2019. 24. Sd/- Sd/- (ओ.पी.मीना/O.P.MEENA) (�ीमती िदवा िसंह/DIVA SINGH) (�याियकसद�यतथा/JUDICIAL MEMBER) (लेखासद�यकेसम� /ACCOUNTANT MEMBER) सुरत/ Surat, �दनांक Dated: 25th January, 2019/S.Gangadhara Rao, Sr.PS Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order / / TRUE COPY / / Assistant Registrar, Surat