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Income Tax Appellate Tribunal, “H” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA, AM & SHRI SANDEEP GOSAIN, JM
सुनवाई क� तार�ख / : 14.09.2017 Date of Hearing घोषणा क� तार�ख / : 08.11.2017 Date of Pronouncement आदेश / O R D E R Per Shamim Yahya, A. M.: This Appeal by the assessee directed against the Order by the Commissioner of Income Tax (Appeals)-2, Thane (‘CIT(A)’ for short) dated 22.04.2016 and pertains to the assessment year (A.Y.) 2009-10.
The issue raised in the appeal is against the levy of penalty under section 271(1)(c) amounting to Rs.5,02,091/-.
(A.Y. 2009-10) Dr. Sharad Haribhau Jadhav vs. ITO 3. The assessee in this case is the general physician. During the course of assessment proceedings, the assessing officer from the details of books of accounts, bank accounts etc. submitted by the assessee, observed that assessee has not disclosed one bank account in his financial statement. This bank account contained a cash deposit of Rs.19,30,000/-. In explanation thereof, the assessee submitted that Rs.6,79,592/- was his agricultural income and balance Rs.12,50,408/- was unexplained professional income. The assessing officer accepted the claim of agricultural income, but treated the sum of Rs.12,50,408/- claimed to have been his undisclosed professional income as ‘income from undisclosed sources’. Penalty was levied with reference to this undisclosed income and interest of Rs.3,498/- was credited in the said undisclosed bank account. Over and above, penalty was also levied for addition of interest amounting to Rs.3,021/- which was reflected in the 26AS statement. Penalty under section 271(1)(c) was levied on these facts for concealment, which was confirmed by ld. CIT(A).
Upon careful consideration and hearing the learned departmental representative, we find that this is not a case where the assessing officer has received some information from outside that assessee is having an undisclosed bank account.
This aspect was discovered by the assessing officer from the details of bank accounts submitted by the assessee himself during the course of assessment. If the assessee had intended to conceal this bank account, he would never submit the detail himself.
Moreover, the assessee's explanation of agricultural income out of this undisclosed
(A.Y. 2009-10) Dr. Sharad Haribhau Jadhav vs. ITO deposit has been accepted by the Revenue and no penalty for this has been levied. On the other hand, the other claim of the assessee of the balance being undisclosed professional income has not been accepted and penalty has been levied on this amount. In our careful consideration, on the facts and circumstances of the case, the assessee cannot be held to have committed any contumacious conduct. Assessee has himself submitted the detail of the said bank account without any discovery by the assessing officer. Furthermore, there is no reason for giving any different treatment to the assessee’s explanation of undisclosed agricultural income and undisclosed professional income.
In these circumstances, on the facts and circumstances of the case, in our considered opinion, penalty levied under section 271(1)(c) is not leviable in this case, as the assessee’s conduct cannot be said to be contumacious. For this proposition, we place reliance upon the Hon’ble Apex Court decision in the case of Hindustan Steels Ltd. v. State of Orissa [1972] 83 ITR 26 (SC) . Accordingly, in the background of aforesaid discussion, we set aside the orders of the uthorities below and delete the levy of penalty.