GULBANO MOHD. HUSAIN GIGA,MUMBAI vs. INCOME TAX OFFICER-13(1)(2), MUMBAI

The aforesaid appeal has been filed by the assessee against the impugned order dated 14/03/2018, passed by the CIT(A)- 56, Mumbai, for the assessment year 2009-10.

The only effective issue raised by the assessee in the various grounds of appeal is against the confirmation of penalty of Rs.2,36,914/- by CIT(A) as imposed by the AO u/s.271(1)(C) of the Act.

The facts in brief are that the assessee filed return on 01/08/2009 declaring total income of Rs.1,75,932/- which was revised subsequently on 04/08/2011 declaring total income of Rs.9,81,182/-. In the said revised return of income, the assessee disclosed the share of profit on sale consideration of Rs.16,80,250/- of sale of shop in Ahmedabad which has not been disclosed in the original return of income. The DDIT(Inv.), Ahmedabad vide letter dated 01/03/2011 informed the AO that during the course of survey u/s.133A conducted on 28/03/2010 at the business premises of M/s. Gold Finch Jewelers Ltd., the survey team had impounded certain papers which revealed that M/s. Gold Finch Jewelers Ltd., had entered into a notorized agreement for purchase of shop in Ahmedabad from the assessee with three others co-owners for consideration of Rs.67,23,000/- for which there was another agreement dated 08/04/2008 for consideration of Rs.33,00,000/- only from the same vendors meaning thereby that the difference of Rs.34,23,000/- was paid in cash by M/s. Gold Finch Jewellers Ltd., to the assessee and another co- owners. Consequently , the case of the assessee was re-opened by u/s.147 of the Act by issuing notice under section 148 of the act which was served on the assessee. Thereafter, statutory notice were duly

In the appellate proceedings, the ld. CIT(A) affirmed the order of the AO by holding that assessee has furnished inaccurate particulars of income by not disclosing the income from sale of shop in the original return of income and assessee has only disclosed the income in the revised return of income after the survey was conducted on the purchaser M/s. Gold Finch Jewelers Ltd., and thus , confirmed the penalty.

We have heard rival submissions and perused the materials available on record. In this case the undisputed facts are that the assessee has not disclosed his income from sale of shop in the original return of income which was duly disclosed in the revised return of income and the due taxes were paid along with interest though the return was filed after survey was conducted on the purchaser on 28/03/2010 whereas the revised return was filed on 04/08/2011. In the assessment framed by the AO, the only disallowance made was Rs.32,500 which was equal of 25% of the cost of improvement. In this case we note that no notice was issued u/s.148 prior to the filing of the revised return and thus, we note that assessee has voluntarily suo-motto filed the revised return of income and offered to tax whatever was left from being disclosed in the original return of income. In other words, the revised return was not filed in response to notice issued u/s.148 and therefore, the assessee cannot be held liable for furnishing in accurate particulars of income or for concealment of income as the income stands offered to tax in the revised return of income. Therefore, we are not in agreement with the conclusion drawn by the ld. CIT(A) on this issue as assessee cannot be penalized where assessee suo-motto came forward and paid tax on the income which was omitted to disclose in the original return of income and was offered to tax in the revised return of income and especially the fact that notice u/s.148 by issue after filing of revised return. In view of these facts

In the result, appeal of the assessee is allowed.