M/S AKSHAY SHAKTI SHIKSHA AVAM SAMAJ KALYAN SAMITI,BHOPAL vs. THE ACIT 1(1), BHOPAL

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE Before Shri Kul Bharat, Hon’ble Judicial Member and Shri Manish Borad, Hon’ble Accountant Member ITA Nos. 518 to 520/Ind/2016 A.Ys. 2007-08, 2009-10 & 2010-11

Akshay Shakti Shiksha Avam Samaj Kalyan Samiti, Bhopal PAN – AAAAA-7213N ::: Appellant Vs ACIT 1(1) Bhopal ::: Respondent

Appellant by Shri Hitesh Chimnani Respondent by Shri K.G. Goyal Date of hearing 27.4.2018 Date of pronouncement 11.5.2018

O R D E R PER SHRI MANISH BORAD, AM

These appeals of the assessee relating to the

assessment years 2007-08, 2009-10 and 2010-11 are

directed against different orders of the Commissioner of

Income Tax (Appeals)-II, Bhopal, dated 25.2.2013 which

are arising out of different orders u/ss 271AAA and 1

271(1)(c) of Income Tax Act (in short referred as ‘Act’) Act

framed by the ACIT 1(1), Bhopal.

following grounds :-

“(i) That on the facts and in the circumstances of the case,

in law, the ld. CIT(A) erred in confirming the penalty as

levied by the A.O. u/s 271(1)(c) of the Income tax Act even

when on the facts of the present case the same is not

justified.

(ii) That on the facts and in the circumstances of the

case, and in law, the ld. CIT(A) erred in confirming the

penalty as levied by the A.O. u/s 271(1)(c) of the Income tax

Act of Rs. 4,77,000/- without appreciating the facts of the

case and submission made before him.”

In ITA No. 519/Ind/2016 the assessee has taken the

following grounds :-

“(i) That on the facts and in the circumstances of the case,

in law, the ld. CIT(A) erred in confirming the penalty as

levied by the A.O. u/s 271AAA of the Income tax Act even

when on the facts of the present case the same is not

justified.

(ii) That on the facts and in the circumstances of the

case, and in law, the ld. CIT(A) erred in confirming the

penalty as levied by the A.O. u/s 271AAA of the Income tax

Act of Rs. 5,58,840/- without appreciating the facts of the

case and submission made before him.”

In ITA No. 520/Ind/2016 the assessee has taken the

following grounds :-

“(i) That on the facts and in the circumstances of the case,

in law, the ld. CIT(A) erred in confirming the penalty as

levied by the A.O. u/s 271AAA of the Income tax Act even

when on the facts of the present case the same is not

justified.

(ii) That on the facts and in the circumstances of the

case, and in law, the ld. CIT(A) erred in confirming the

penalty as levied by the A.O. u/s 271AAA of the Income tax

Act of Rs. 5,79,465/- without appreciating the facts of the

case and submission made before him.”

record, are that the assessee is a registered society running

Vivekanand College of Science & Technology. It was

registered on 3rd September, 2005 and engaged in

providing education. The search and seizure operation u/s

132 of the Act was carried out at various premises of the

group/members of the society on 23.7.2009. Various

incriminating documents were seized. Specially in the case

of the assessee documents numbering LPS-1 to 50 were

seized from the office premises located at C110, Nehru 4

Nagar, Bhopal. Subsequently on 23rd November, 2009 the

society vide letter dated nil submitted to ITO, Inv. Bhopal

under the signature of President and the Secretary, that

the assessee wants to make voluntary disclosure of Rs.

74,83,000/- relating to various items appearing in the

balance sheet as on 31.3.2008 mentioning as follows :-

income for the assessment years 2007-08, 2009-10 and

2010-11 on 31.10.2007, 31.3.2011 and 16.9.2001

declaring total income at (-) Rs.5,31,945/-, Rs.2,12,910/-

and Rs. 5,51,140/-, respectively. However, in the return of

income filed subsequent to search the assessee did not

declare the surrendered income. In reply to the notices

under section 143(2) read with section 153A of the Act

requiring the assessee to file return of income, the assessee

opted for treating the regular return of income filed as

return of income filed in compliance with notice u/s 153A

of the Act. During the course of assessment proceedings

when the assessee was questioned that why it has not

declared the undisclosed income as accepted in the letter

submitted on 23.11.2009 it was pleaded that the

management of the society completely changed after the

search and that the old membership pattern continued up

till January 11 but thereafter from 19.1.2011 there was a

major change in the management committee, which was

not aware of the alleged disclosure. However, during the

course of assessment proceedings the new committee

members accepted the surrender made by the previous

committee. The Assessing Officer accordingly concluded

the assessment after making various additions on account

of the alleged surrender as well as other additions

emanating out of the documents seized in the case of office

bearers, viz. K.K. Sharma, K.P. Dwivedi, Pushpandra

Sharma and Lokendra Sharma. The income was

accordingly assessed at Rs.10,56,684/-, Rs. 58,01,313/-

and Rs. 63,45,792/- for the assessment years 2007-08,

2009-10 and 2010-11, respectively. Against the impugned

additions, the assessee did not prefer any appeal before the

learned Commissioner of Income Tax (Appeals) and

accepted to pay due taxes on the assessee income.

271(1)(c) of the Act(1)(c) of the Act were initiated for the

assessment year 2007-08 and penalty proceedings u/s

271AAA of the Act were initiated for the assessment years

2009-10 and 2010-11. The assessee submissions during

the penalty proceedings were not sufficient to convince the

Assessing Officer and he, accordingly, levied the penalty of

Rs.4,77,000/- u/s 271(1)(c) of the Act(1)(c) of the Act for

the assessment year 2007-08 and penalty u/s 271AAA of

the Act at Rs. 5,58,840/- and Rs. 5,79,465/- for the

assessment years 2009-10 and 2010-11, respectively.

Aggrieved, the assessee went in appeal before the learned

Commissioner of Income Tax (Appeals) against the

penalties levied u/s 271(1)(c) of the Act(1)(c) and 271AAA of

the Act but failed to succeed. Now the assessee is in

appeal before the Tribunal.

assessment year 2007-08 wherein the assessee aggrieved

with the levy of penalty u/s 271(1)(c) of the Act(1)(c) of the

Act at Rs. 4,77,000/-.

the written submissions as well as cases relied upon in its

favour submitted that the impugned addition was made on 8

account of corpus funds and no incriminating documents

regarding corpus funds were found. The addition was made

solely on the basis of disclosure made by the assessee. It

was also contended that the assessee made due disclosure

through a letter dated 23.11.2009 and the revenue has

only acted solely on the basis of the said letter without

conducting further corroborative inquiries.

argued supporting the orders of the lower authorities.

the record placed before us. The sole issue raised in the

assessment year 2007-08 relates to levy of penalty u/s

271(1)(c) of the Act(1)(c) of the Act. This fact is not disputed

that the addition was made on account of corpus fund

which the assessee accepted of not being able to explain its

source. The surrender was made through a letter two

months after the date of search but there was no such 9

mention of the alleged surrender in the return of income

filed by the assessee.

Income Tax (Appeals) confirmed the impugned penalty by

dealing extensively with the facts of the case along with

applying the judgment of the Hon'ble Apex Court in the

case of MAK Data P. Ltd. vs. CIT; 358 ITR 593 observing as

follows :-

“4.5(a) I have carefully considered the facts of the case

and the written submissions filed by ld. AR. The facts of

the case and the date-line in brief are as under :-

- The search took placed on 23.07.2009.

- No surrender of undisclosed income was made during

the course of the search.

- After the seizure and analysis of seized documents

by the Investigation Wing, a declaration was made by

the then President and Secretary of the society

declaring an undisclosed income of Rs. 74,83,000

through a letter filed before ITO (Investigation) on

23.11.2009. The following items of income as per

Balance sheet as on 31.03.2008 were offered to tax.

However, no specific years for which the undisclosed

income was being disclosed were mentioned in this

letter :

(i) Amount credited in Corpus Fund A/c and unsecured loans Rs.33,31,000

(ii) Amount credited in sundry creditors

. Imratilal/Munnalal Rs.5,25,000

. Sundry Payable Rs. 1,45,000

. Creditors for Raw Material Rs.17,82,000 Rs.24,52,000

(iii) Amount for other errors & omissionsRs.17,00,000 Total Rs.74,83,000

Notice u/s 153A was issued on 30.6.2011 calling for

returns of income for A.Y. 2004-05 to 2009-10 to be

filed within 30 days. No returns of income were filed in

response to notice u/s 153A. It was stated vide letter

dt. 25.07.2011 that the returns filed u/s 139 may be

treated as filed in response to notice u/s 153A. The

return for A.Y. 2007-08 had been filed on 31.10.2007

declaring a loss of Rs.5,31,945/-.

Thus, even after the above declaration dated

23.11.2009, the surrendered income was not declared

in the return of income u/s 153A on 25.07.2011.

4.5(b) The main argument of ld. learned AR in appeal

is that the declaration dated 23.11.2009 was made

before the ITO (Investigation) voluntarily and almost 2

years prior to the issuance of the statutory notice u/s

153A.

The argument of the appellant is not acceptable as the

additional income has been offered by the assessee

only after search uS 132 which is one of the modes of

investigation. A disclosure made after search cannot be

called a voluntary disclosure. Further, more the

assessee did not file return of income declaring the

income surrendered on 23.11.2009 post-search and

instead filed letter that the original returns already filed

may be treated as returns filed in response to notice

u/s 153A. The regular returns u/s 139(1) were filed as

under :-

A.Y. Date of filing return Returned income (Rs.) 2006-07 02-11-2006 13,736

2007-08 31.10.2007 (5,31,945)

2008-09 01.01.2009 NIL

2009-10 31.03.2011 2,12,910

2010-11 16.09.2011 5,51,140

Thus, it is clear that the additional income assessed to

tax is only the result of search and seizure operation

and the assessment proceedings and is not voluntary in

any way. It was not shown in the return of income.

4.5(c) The second argument is that due to the ongoing

infighting, quarrels and complaints amongst the

members of the founder Governing Body and other

members of the Society, a consensus could not be

arrived at during the course of search action on

23.07.2009, which prevented the appellant from

making a statement u/s 132(4). There was a change in

the governing body of the society w.e.f. 10.01.2011 and

the new Managing Committee/Office bearers decided to

voluntarily disclose Rs.74,83,000 before the ITO

(Investigation) in order to put an end to litigation

regarding tax matters.

This contention of the appellant is also not tenable. If

the assessee had no intention to conceal income and

evade tax on the same, it could have immediately after

search on 23.07.2009 and subsequent surrender on

23.11.2009 filed revised return of income for A.Y. 2008-

09 or filed return of income for A.Y. 2009-10 u/s 139

declaring additional income. The return for A.Y. 2009-10

was filed much beyond the due date, i.e. on

31.03.2011. Similarly the regular return for A.Y. 2010-

11 was filed only on 16.09.2011. When asked why the

amount of Rs. 74,83,000 claimed to have been

voluntarily surrendered was not disclosed even in the

return u/s 153A, the only explanation given is that due

to change in management, the present Management of

the society is unable to say anything about the matter

which pertains to the period of the earlier Management.

It is thus held that the assessee has no explanation for

not showing the surrendered income in its return.

4.5(d) Regarding the quantum addition of

Rs.15,88,629 on account of Corpus Fund, it has been

submitted that the addition has been made only on the

basis of the disclosure made by the appellant itself on

23.11.2009 which has been accepted as such for

purposes of assessment. No factum of concealment and

mensrea has been proved or established in the penalty

order. The Assessing Officer has simply rested its

conclusion on the act of voluntary surrender made by

the assessee in good faith to purchase peace and to

avoid litigation. In such a situation, the ratio of the

decision in the case of CIT vs. Suresh Chandra Mittal as

spelt out by the Hon'ble Supreme Court 251 UTR 9(S.C.) 16

comes to the rescue of the assessee and accordingly no

penalty under section 271(1)(c) is attracted in the case.

I have considered the above argument. It is seen that

the issue is duly covered in favour of Revenue by the

decision of the Hon'ble Supreme Court in MAK Data P.

Ltd. vs. CIT; 358 ITR 593 (SC) wherein the Hon'ble

Supreme Court has held as under :-

“Voluntary disclosure does not release the

assessee from the mischief of penal

proceedings……The Assessing Officer shall not be

carried away by the plea of the assessee such as

“voluntary disclosure”, “buy peace”, “avoid

litigation”, amicable settlement”, to explain away

its conduct. The question is whether the assessee

has offered any explanation for concealment of

particulars of income or furnishing inaccurate

particulars of income. Explanation to section

271(1)(c) of the Act(1) raises a presumption of

concealment when a different is notice by the A.O.

between the reported and assessed income…..

Assessee has only stated that he had surrendered

the additional sum with a view to avoid litigation,

buy peace and to channelise the energy and

resources towards productive work and to make

amicable settlement with the income tax

department. ‘1Statute does not recognise those

types of defences under the Explanation 1 to

section 271(1)(c) of the Act(1)©. It is trite law that

the voluntary disclosure does not release the

assessee from the mischief of penal proceedings

under section 271(1)(c) of the Act(1)(c). The law

does not provide that when an assessee makes a

voluntary disclosure of his concealed income, he

has to be absolved from penalty.

The surrender of income on this case is not

voluntary in the sense that the offer of surrender

was made in view of detection made by the A.O. in

the search conducted in the sister concern of the

assessee. In that situation, it cannot be said that

the surrender of income was voluntary.”

Upon careful consideration of the explanation offered

by the assessee, it is seen that the assessee has not

provided that it has not furnished inaccurate

particulars of income or concealed particulars of its

income in the return filed by it u/s 153A. As held by

various courts, the foundational fact here depends

upon the return filed by the assessee because that is

the only document where the assessee can furnish the

particulars of income. When such particulars are found

to be inaccurate, the liability u/s 271(1)(c) of the Act

would arise. Penalty u/s 271(1)(c) of the Act is a civil

liability and wilful concealment is, therefore, not an

essential ingredient for attracting penalty under this

section. It is evident in the case of the assessee that it

did not disclose its correct and true income in the

return filed by it u/s 153A. In response to the notice

u/s 153A, the assessee only stated that the return

under section 139 may be treated as return filed in

response to notice u/s 153A. This reply was furnished

after the assessee had already filed surrender letter to

ITO (Inv.). The appellant thus failed to disclose all facts

material to the computation of its total income in its

return of income and failed to substantiate its

explanation at the time of search as well as

assessment and penalty proceedings.

4.5(e) In view of the above facts, the penalty levied by the A.O. u/s 271(1)(c) is upheld.”

We further note that the search in the case of the assessee

was conducted on 23.7.2009 and this date falls after the

first day of June, 2007 as provided in Explanation 5A to

section 271(1)(c) of the Act(1)(c) of the Act. For better

understanding we reproduce Explanation 5A to section

271(1)(c) of the Act :-

“Explanation 5A.- Where, in the course of a search

initiated under section 132 on or after the Ist day of

June, 2007, the assessee is found to be the owner

of –

(i) Any money, bullion, jewellery or other

valuable article or thing (hereinafter in this

Explanation referred to as assets) and the

assessee claims that such assets have been

acquired by him by utilising (wholly or in

part) his income for any previous year; or

(ii) Any income based on any entry in any

books of account or other documents or

transactions and he claims that such entry

in the books of accounts or other documents

or transactions represents his income

(wholly or in part) for any previous year,

which has ended before the date of search

and,-

(a) Where the return of income for such

previous year has been furnished

before the said date but such income

has not been declared therein; or

(b) The due date for filing the return of

income for such previous year has

expired but the assessee has not filed

the return.

Then, notwithstanding that such income is

declared by him in any return of income

furnished on or after the date of search, he

shall, for the purpose of imposition of a

penalty under clause (c) of sub-section (1) of

this section, be deemed to have concealed

the particulars of his income or furnished

inaccurate particulars of such income.”

within the four corners as provided in Explanation 5A of

the Act which contemplates that in case the return of

income for such previous year ended before the date of

search, has been furnished before the last date, but such

income has not been declared therein then not-with-

standing that such income is declared by him in any return

of income furnished on or after the date of search then for

the purpose of imposition of penalty u/s 271(1)(c) of the

Act(1)(c) of the Act it would be deemed to have concealed

the particulars of his income or furnished inaccurate

particulars of such income.

that the return for the assessment year 2007-08 was filed

on 31.10.2007 declaring loss of Rs. 5,31,945/-. Search was

conducted on 23.7.2009 i.e. after the first day of June,

2007. The assessee accepted the unexplained income on

account of corpus fund relating to its source. The alleged

undisclosed income was not offered to tax in the regular

return of income and was finally admitted for paying tax in

the course of assessment proceedings. In view of these

facts, the assessee is directly hit by the provisions of

Explanation 5A to section 271(1)(c) of the Act(1)(c) of the

Act. Therefore, in our considered view, the learned

Commissioner of Income Tax (Appeals) has rightly

confirmed the penalty of Rs.4,77,000/- u/s 271(1)(c) of the

Act(1)(c) of the Act. No interference is, therefore, called for

in the findings of the learned Commissioner of Income Tax

(Appeals) and accordingly we confirm the same.

assessment year 2007-08 is dismissed.

the assessment years 2009-10 and 2010-11 in which the

assessee is aggrieved with the levy of penalty u/s 271AAA

of the Act of Rs. 5,58,840/- and Rs.5,79,465/- respectively.

discussed above while adjudicating the appeal for the

assessment year 2007-08.

submitted that the additions were made on the ground that

the assessee had made various payments to various

persons and the alleged additions were made on the basis

of documents found during the course of search at the

premises of third parties. The learned Commissioner of

Income Tax (Appeals) upheld the penalty on the ground

that the assessee was not able to prove that it has not

concealed the particulars of income or has furnished

inaccurate particulars of income. Further the learned

Commissioner of Income Tax (Appeals) failed to appreciate

that the assessee has disowned of having made such

payments which have been duly noted by the Assessing

Officer in the assessment order. Further, the learned

counsel for the assessee also submitted that search was

conducted at the premises of K.K. Sharma and it needs to

be ascertained whether the tax has also been levied and

recovered from K.K. Sharma on the same amount and if it

is found correct, it would amount to recovering taxes twice

and, therefore, the levy of penalty on the same count would

be grossly prejudicial to the assessee.

17. On the other hand, the learned DR vehemently

argued supporting the orders of the authorities below and

further submitted that the provisions of section 271AAA of

the Act are very clear and the assessee, if fulfils the three

conditions mentioned therein, no such penalty is leviable

which has not so happened in the case of the assessee and,

therefore, the learned Commissioner of Income Tax

(Appeals) has rightly confirmed the penalty.

the record placed before us. In these two appeals the

assessee is aggrieved with the levy of penalty u/s 271AAA

of the Act. As far as the contention of the assessee that the

income might have been taxed twice is concerned, we

refrain from dealing with this issue as it relates to quantum

addition for which the assessee has not come up in second

appeal and, therefore, it has attained finality. We are confined to deal with the issue of penalty u/s 271AAA of

the Act. Section 271AAA of the Act reads as under :-

“Penalty where search has been initiated. 271AAA. (1) The Assessing Officer may, notwithstanding anything contained in any other provisions of this Act, direct that, in a case where search has been initiated under section 132 on or after the 1st day of June, 2007 but before the 1st day of July, 2012, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him, a sum computed at the rate of ten per cent of the undisclosed income of the specified previous year. (2) Nothing contained in sub-section (1) shall apply if the assessee,— (i) in the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived; (ii) substantiates the manner in which the undisclosed income was derived; and (iii) pays the tax, together with interest, if any, in respect of the undisclosed income. (3) No penalty under the provisions of clause (c) of sub-section (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1). (4) The provisions of sections 274 and 275 shall, so far as may be, apply in relation to the penalty referred to in this section. Explanation.—For the purposes of this section,— (a) "undisclosed income" means— (i) any income of the specified previous year represented, either wholly or partly, by any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or other documents or transactions found in the course of a search under section 132, which has— (A) not been recorded on or before the date of search in the books of account or other documents maintained in the normal course relating to such previous year; or (B) otherwise not been disclosed to the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner before the date of search; or (ii) any income of the specified previous year represented, either wholly or partly, by any entry in respect of an expense recorded in the books of account or other documents maintained in the normal course relating to the specified previous year which is found to be false and would not have been found to be so had the search not been conducted;

(b) "specified previous year" means the previous year— (i) which has ended before the date of search, but the date of filing the return of income under sub-section (1) of section 139 for such year has not expired before the date of search and the assessee has not furnished the return of income for the previous year before the said date; or (ii) in which search was conducted.”

assessee wherein search u/s 132 of the Act has been initiated on or

after Ist day of July, 2012. In the case of the assessee search was

conducted on 23.7.2009. This date falls in the abovereferred date

bracket. The assessee in order to get immunity from paying penalty

@ 10% of the undisclosed income shall have to fulfil three

conditions as mentioned in the above section.

the assessee has admitted the undisclosed income during the

course of search with specific manner in which it has been derived,

we find that the search was conducted on 23.7.2009. The assessee

did not make any disclosure during the course of search. It was two

months thereafter on 23.11.2209 that the assessee submitted a

letter before the ITO, Investigation, Bhopal. In our view, the

statement given on 23.11.2009 cannot be considered as a

statement given during the course of search because it was an

afterthought and given two months after the date of search.

duly substantiated the manner in which the undisclosed income

was taxed.

assessee has paid the taxes together with interest, we find that the

assessee has not offered the undisclosed income voluntarily in the

return of income filed in compliance with the notice u/s 153A of the

Act and it was only during the course of assessment proceedings

that when it was confronted with the seized material as well as the

disclosure made on 23.11.2009 then it accepted to pay taxes.

Therefore, the assessee has not paid the taxes voluntarily on the

income surrendered.

the three conditions provided in section 271AAA of the Act for

getting immunity from paying penalty @ 10% of the undisclosed

amount. We, therefore, find no reason to interfere with the findings

of the learned Commissioner of Income Tax (Appeals) and confirm

the penalty imposed u/s 271AAA of the Act.

years 2009-10 and 2010-11 stand dismissed.

Order pronounced in open Court on 11.5.2018.

Sd/- as/-

( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER �दनांक /Dated : 11 May, 2018 Copy to: The Appellant/Respondent/CIT concerned/CIT(A) concerned/ DR, ITAT, Indore/Guard file. By order Private Secretary/DDO, Indore 1. Date of dictation : .2018 2. Date on which the typed draft is placed before the Dictating Member : .2018 3. Date on which approved draft comes to the Sr.P.S./P.S: 4. Date on which the fair order is placed before the dictating Member for pronouncement: 5. Date on which the fair order comes back to the Sr.P.S./P.S.: 6. Date on which the file goes to the Bench Clerk: 7. Date on which the file goes to the Head Clerk: 31