ACIT, Coimbatore V. M/s. Excel Plast, Coimbatore

ITA 1415/CHNY/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68696 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 08-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Wrong claim; Tax effect; Revised return
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P.GEORGE , ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ITA NO. 1415/MDS/2011 (ASSESSMENT YEAR: 2008-09) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-II, COIMBATORE. VS. M/S. EXCEL PLAST, 53, 4B VARATHARAJA LAY OUT P.N.PALAYAM ROAD, GANAPATHY COIMBATORE-641 006. PAN:AABFE2285J (APPELLANT) (RESPONDENT) APPELLANT BY : MR. GURU BASHYAM, JCIT RESPONDENT BY : MR. S.SRIDHAR, ADVOCATE DATE OF HEARING : 3 RD SEPTEMBER, 2013 DATE OF PRONOUNCEMENT : 6 TH SEPTEMBER, 2013 O R D E R PER CHALLA NAGENDRA PRASAD, JM : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, COIMBAT ORE DATED 23.05.2011 FOR THE ASSESSMENT YEAR 2008-09. T HE ONLY GRIEVANCE OF THE REVENUE IS THAT THE COMMISSIONER O F INCOME TAX (APPEALS) ERRED IN DELETING THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT ON THE GROUND THAT THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY FACTS TO SHO W THAT THERE ITA NO. 1415/MDS//2011 2 WAS CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. 2. BRIEF FACTS ARE THAT THE ASSESSEE ENGAGED IN THE BUSINESS OF MANUFACTURE OF PLASTIC COMPONENTS FILED RETURN OF INCOME ON 30.09.2008 ADMITTING INCOME OF ` 26,48,247/-. A SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT WAS CONDUCTED IN THE ASSESSEES BUSINESS PREMISES ON 29.01.2009. IN THE COURSE OF SURVEY, THE ASSESSEE O FFERED ` 1,00,00,000/- FOR TAXATION FOR THE ASSESSMENT YEAR 2008-09 IN RESPECT OF SUNDRY CREDITORS RECORDED IN THE BOOK S OF ACCOUNT AS ACCORDING TO THE ASSESSEE MOST OF THE CR EDITS ARE TO BE WRITTEN OFF. THE ASSESSEE FILED REVISED RETUR N ADDING SUNDRY CREDITORS FOR PURCHASES FOR THE YEAR ENDED 3 1.03.2007 AMOUNTING TO ` 47,26,088/- AND SUNDRY CREDITORS FOR EXPENSES FOR THE YEAR ENDED 31.03.2008 AMOUNTING TO ` 53,22,016/- TOTALING TO ` 1,00,48,104/- AND ADMITTED INCOME OF ` 1,26,96,351/- IN THE REVISED RETURN. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 143(3) ON 23.03.2010 DETERMINING THE INCOME AT ` 1,32,08,320/-. WHILE ITA NO. 1415/MDS//2011 3 DOING SO, THE ASSESSING OFFICER ACCEPTED THE REVISE D RETURN FILED BY THE ASSESSEE AND THE INCOME ADMITTED THERE IN CONSISTING OF SUNDRY CREDITORS FOR PURCHASES FOR TH E YEAR ENDED 31.03.2007 AND THE SUNDRY CREDITORS FOR EXPEN SES FOR THE YEAR ENDED 31.03.2008 AMOUNTING TO ` 47,26,088/- AND ` 53,22,016/- RESPECTIVELY. THE ASSESSING OFFICER ALS O MADE ADDITION UNDER SECTION 40(A)(IA) OF ` 5,11,965/- IN RESPECT OF PAYMENTS MADE TO MADUSUDAN AGENCIES AND MAYURYA SOLUTIONS FOR NON-DEDUCTION OF TDS. THE ASSESSING O FFICER INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)( C) AND IN THE COURSE OF THE PROCEEDINGS, THE ASSESSEE SUBMITT ED THAT IT HAD VOLUNTARILY OFFERED THE INCOME IN RESPECT OF TH E BALANCES OF SUNDRY CREDITORS AS ON 31.03.2007 AND 31.03.2008 AS THEY HAVE TO BE WRITTEN OFF. THE ASSESSEE SUBMITTED THAT THERE IS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURAT E PARTICULARS OF INCOME, IT IS ONLY A VOLUNTARY OFFER MADE BY THE ASSESSEE. THE ASSESSING OFFICER LEVIED PENALTY UNDE R SECTION 271(1)(C) OF THE ACT ON THE GROUND THAT THERE IS NO EVIDENCE TO PROVE THAT ACTUAL PURCHASE OF MATERIALS FROM SUNDRY CREDITORS HAS TAKEN PLACE AND CONFIRMATIONS FROM THE CREDITOR S ARE NOT ITA NO. 1415/MDS//2011 4 PLACED ON RECORD. THE ASSESSING OFFICER IS OF THE V IEW THAT BUT FOR THE SURVEY, THE ASSESSEE WOULD NOT HAVE OFFERED ADDITIONAL INCOME. ON APPEAL BY THE ASSESSEE, THE COMMISSIONE R OF INCOME TAX (APPEALS) DELETED PENALTY HOLDING THAT T HERE IS NO CONCEALMENT OF INCOME BY THE ASSESSEE AND IT IS ONL Y A VOLUNTARY OFFER MADE BY THE ASSESSEE IN THE REVISED RETURN, AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE US. 3. THE DEPARTMENTAL REPRESENTATIVE REFERRING TO THE ASSESSMENT ORDER AND THE PENALTY ORDER SUBMITS THAT ONLY BECAUSE OF THE SURVEY, THE ASSESSEE HAD OFFERED ADD ITIONAL INCOME. THERE WAS NO SUBMISSION FROM THE ASSESSEE A S TO WHY IT DID NOT ADMIT IN THE ORIGINAL RETURN. THE D EPARTMENTAL REPRESENTATIVE MAINLY RELIED ON THE FOLLOWING DECIS IONS IN SUPPORT OF HIS ARGUMENTS THAT THERE IS CONCEALMENT OF INCOME:- I) RAVI & COMPANY VS. ACIT. (271 ITR 286) (MAD) II) CIT VS. MAK DATA LTD., (2013) 31 TAXMAN.COM 35 III) CIT VS. USHA INTERNATIONAL LTD. 212 TAXMAN 519 (DEL). ITA NO. 1415/MDS//2011 5 4. THE COUNSEL FOR THE ASSESSEE SUPPORTING THE O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) SUBMITS TH AT THERE WAS A SURVEY ON 29.1.2009 WHICH IS THE RELEVA NT PERIOD FOR THE ASSESSMENT YEAR 2009-10. THE ASSESS EE FILED REVISED RETURN VOLUNTARILY ADMITTING INCOME A ND THE ASSESSING OFFICER IN THE COURSE OF SURVEY HAS NOT ESTABLISHED THAT THE SUNDRY CREDITORS ARE BOGUS AND THERE IS NOTHING ON RECORD TO SUGGEST THAT THERE IS CONCEAL MENT OF INCOME BY THE ASSESSEE WHICH WAS UNEARTHED IN THE COURSE OF SURVEY. IT IS ONLY A VOLUNTARY OFFER MADE BY TH E ASSESSEE IN THE COURSE OF SURVEY THAT SUNDRY CREDITORS HAVE TO BE WRITTEN OFF AND ALSO SINCE THE ASSESSEE THOUGHT THA T CONFIRMATIONS COULD NOT BE OBTAINED AND THEREFORE OFFERED VOLUNTARILY THE ADDITIONAL INCOME BY FILING REVISED RETURN FOR THE ASSESSMENT YEAR 2008-09, THOUGH THE SURVEY TOOK PLACE IN THE RELEVANT PERIOD FOR THE ASSESSMENT YEAR 2009 -10. THE COUNSEL PLACED RELIANCE ON THE FOLLOWING DECISIONS IN SUPPORT OF HIS CONTENTIONS:- 1. CIT VS. M.PACHAMUTHU & ANOTHER (295 ITR 502) ITA NO. 1415/MDS//2011 6 2. CIT VS. CAREERS EDUCATION & INFOTECH P. LTD. (336 ITR 257) ( P&H) 3. CIT VS. S.A.S. PHARMACEUTICALS (335 ITR 259) (DE L) 4. CIT VS. CAFCO SYNDICATE SHIPPING CO. (294 ITR 134) (MAD) 5. A.RAJENDRAN & ORS. VS. ACIT (127 ITD 361) 5. FURTHER REFERRING TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SUGAULI SUGAR WORKS (P ) LTD. (236 ITR 518), THE COUNSEL FOR THE ASSESSEE SUBMITS THAT EVEN UNILATERAL WRITE OFF OF SUNDRY CREDITORS IS NO T A BENEFIT OBTAINED UNDER SECTION 41(1) OF THE ACT SO AS TO TR EAT SUCH WRITE OFF AS INCOME WITHIN THE PROVISIONS OF SECTIO N 41(1) OF THE ACT. EVEN WHEN THE ASSESSEE WRITES OFF SUNDRY CREDITORS IN ITS BOOKS OF ACCOUNT THE SAID WRITE OFF CANNOT B E BROUGHT TO TAX UNDER SECTION 41(1) OF THE ACT, SINCE SUCH WRI TE OFF IS NOT REMISSION OR CESSATION WHICH IS SINE QUA NON FOR THE APPLICATION OF SECTION 41(1) OF THE ACT AS HELD BY THE HONBLE SUPREME COURT. THEREFORE, HE SUBMITS THAT T HERE IS NO CONCEALMENT OF INCOME OR FURNISHING OF ITA NO. 1415/MDS//2011 7 INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE, T HE OFFER WAS MADE VOLUNTARILY IN THE COURSE OF SURVEY. 6. HEARD BOTH SIDES. PERUSED THE ORDERS OF LOWER AUTHORITIES AND CASE LAWS RELIED ON BY THE PARTIES . THE COMMISSIONER OF INCOME TAX (APPEALS) WHILE COMING T O THE CONCLUSION THAT THERE IS NO CONCEALMENT OF INCOME I N THIS CASE OBSERVED AS UNDER:- 6. I HAVE GONE THROUGH THE SUBMISSIONS MADE BY THE APPELLANT AND ALSO THE ORDER OF THE ASSESSING OFFICER . A SURVEY U /S 133A OF THE INCOME-TAX ACT WAS CONDUCTED IN THE APPELLANT ' S PREMISES ON 29 . 1 . 2009 . DURING THE COURSE OF SURVEY, THE APPELLANT ADMITTED RS . 1 CRORE FOR TAXAT I ON OUT OF THE TOTAL CREDITORS AMOUNTING TO RS . 1 . 29 CRORES FOR THE ASSESSMENT YEAR 2008 - 09 . ACCORDINGLY, THE APPELLANT FILED A REVISED RETURN OF I N COME ON 24.2 . 2009 ADMITT I NG THE ADDIT I ONAL INCOME OF RS . 1 CRORE . I N THE REVISED RETURN , THE APPEL L ANT HAS ADDED SUNDRY CRED I TORS FOR PURCHASES R ETURNED BACK FOR THE YEAR ENDED 31 . 3 . 200 7 AMOUNT I NG T O RS . 47 , 26 , 088/- AND SUNDRY CRED I TORS FOR THE YEAR 31 . 3 . 2008 AMOUNTING TO ` 53,22,016/- TOTALLING TO ` 1,00,48,104/-. THE AR SUBMITTED THAT THE ITA NO. 1415/MDS//2011 8 REVISED RETURNS FOR THE ASSESSMENT YEAR 2008- 09 WAS VOLUNTARILY FILED WITHOUT ANY NOTICE BEING S ERVED BY THE DEPARTMENT . THE ARGUMENT OF THE A.R. THAT THE APPELLANT WOULD HAVE OFFERED THE SAID INCOME IN THE ASSESSMENT YEAR 2009-10, THE PERIOD IN WHICH THE SURVEY WAS CONDUCTED, WHERE THERE WOULD NOT HAVE BEEN THE ATTRACTION OF PENALTY HAS SOME FORCE . THE A.R. STATED THAT THE APPELLANT OFFERED THE SAID INCOME U/S 41(1) OF THE INCOM E -TAX ACT FOR THE ASSESSMENT YEAR 2008-09 AS AGAINST OFFERING IN THE ASSESSMENT YEAR 2 0 09-10 WAS TO COOPERATE WITH THE DEPARTMENT IN THE SURVEY AND ASSESSMENT PROCEEDINGS. THE APPELLANT VOLUNTARILY SURRENDERED THE CREDITORS AMOUNT AS INCOME SINCE HE COULD NOT GET CONFIRMATION FROM ALL THE CREDITORS. THE APPELLANT FILED THE REVISE D RETURN ADMITTING INCOME. THE REVISED RETURN WAS NOT W I TH I N DUE DATE, BUT THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BASED ON REVISED RETURN. IT IS TRUE THAT THE APPELLANT HAS FILED THE REVISED RETURN AFTER THE SURVEY. THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY MATERIAL EVIDENCE TO SHOW THAT THE TRADE CREDITORS WERE BOGUS. DURING THE COURSE OF SURVEY, THERE WAS NO MATERIAL EVIDENCE FOUND BY THE ASSESSING OFFICER TO SUSPECT THE NON-EXISTENCE OF CREDITORS. ITA NO. 1415/MDS//2011 9 7. THE LEARNED A . R. ARGUED THAT INCOME WAS OFFERED , BECAUSE THE APPELLANT COULD NOT GET CONFIRMATIONS FROM THOSE CREDITORS SINCE MANY OF THEM HAD CLOSED / SHIFTED THEIR BUSINE S S . IN THE PENALTY ORDER , THE ASSESSING OFFICER DISCUSSED THAT HAD THE SURVEY NOT BEEN C O NDUCTED, THE ASSESSEE WOULD NOT HAVE FILED THE REVISED RETURN ADMITTING THE INCOME OF RS.1,00 , 48 , 104. THE ASSESSING OFFICER ALSO DISCUSSED THAT THERE WAS NO EVIDENCE IN THE FILE TO PROVE THE ACTUAL PURCHASES FROM SUNDRY CREDITORS. IN THE OPINION OF THE ASSESSING OFFICER, THE ASSESSEE FURNISHED THE NAME OF CREDITORS AND THE COMPLETE ADDRES S AND THE IDENTITY OF THE CREDITORS COULD NOT BE VERIFIED. IN MY O P INION, ASSESSING OFFICER COULD NOT ESTABLISH THAT THERE WAS CONCEALMENT BY THE APPELLANT AND IT WAS UNEARTHED DURING THE COURSE OF SURVEY. THE APPELLANT NEITHER CONCEALED ANY PARTICULARS OF INCOME NOR FILED ANY INACCURATE PARTICULARS OF INCOME DETAILS. DURING THE COURSE O F SURVEY, THERE WAS NO EVIDENCE AVAILABLE / BROUGHT ON RECORD BY THE ASSESSING OFFICER TO PROVE THE BOGUS NATURE OF CREDITORS. IT IS ONLY ON ACCOUNT OF VOLUNTARY OFFERING OF INCOME BY THE APPELLANT SINCE HE COULD NOT GET CONFIRMATIONS FROM ALL THE CREDITORS, THE APPELLANT FILED THE REVISED RETURN. THERE WAS NO SPECIFIC DETECTION OF ANY ITA NO. 1415/MDS//2011 10 CONCEALMENT BY THE ASSESSING OFFICER TO NECESSITATE PROCEEDINGS UNDER SECTION 271(1)(C). IN MY OPINION, IN THE ABSENCE OF ANY FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER TO SHOW THAT THERE IS CONCEALMENT OF INCOME / FURNISHING OF INACCURATE PARTICULARS OF INCOME, PENALTY LEVIED UNDER SECTION 271(1(C) CANNOT BE SUSTAINED. IN VIEW OF THIS, I DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY LEVIED UNDER SECTION 271(1)(C). 7. AS COULD BE SEEN FROM THE ABOVE OBSERVATIONS OF THE COMMISSIONER OF INCOME TAX (APPEALS), THAT THE ASSE SSEE IN THE COURSE OF SURVEY ADMITTED ADDITIONAL INCOME IN RESPECT OF CREDITORS AS ON 31.03.2007 AND 31.03.2008 BY FILING A REVISED RETURN. THE ASSESSING OFFICER COULD NOT ESTABLISH T HAT THERE WAS CONCEALMENT BY THE ASSESSEE AND IT WAS UNEARTHE D DURING THE COURSE OF SURVEY. DURING THE COURSE OF SURVEY, THERE WAS NO EVIDENCE AVAILABLE OR BROUGHT ON RECOR D TO PROVE THAT THE CREDITORS ARE BOGUS. WE COULD SEE FROM THE RECORDS THAT IT IS ONLY A VOLUNTARY OFFER MADE BY THE ASSES SEE, AS THE ASSESSEE WAS OF THE VIEW THAT MOST OF THE CREDITS H AVE TO BE WRITTEN OFF AND THERE WAS NO SPECIFIC DETECTION OF ANY ITA NO. 1415/MDS//2011 11 CONCEALMENT BY THE ASSESSING OFFICER TO INITIATE PR OCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. 8. THE CASE LAWS RELIED ON BY THE REVENUE ARE DISTINGUISHABLE ON FACTS. IN THE CASE OF RAVI & CO. VS. ACIT (SUPRA) , THE TRIBUNAL CAME TO A CONCLUSION THAT MU CH BEFORE THE REVISED RETURNS WERE FILED, THE ASSESSING OFFIC ER ISSUED A QUESTIONNAIRE CALLING FOR DETAILS. THE ASSESSEE FI LED REVISED RETURNS ONLY WHEN IT WAS CORNERED. THE TRIBUNAL FOU ND THAT REVISED RETURNS HAVE NOT BEEN FILED VOLUNTARILY IN A BONAFIDE MANNER, THEREFORE THE PENALTY LEVIED WAS CONFIRMED BY THE HIGH COURT. THIS IS NOT THE CASE IN THE PRESENT APP EAL. 9. IN THE CASE OF CIT VS. MAK DATA LTD. (SUPRA) IN THE COURSE OF SURVEY SOME DOCUMENTS PERTAINING TO THE A SSESSEE WERE FOUND AND IMPOUNDED. THE DOCUMENTS BELONGED TO CERTAIN ENTITIES WHO HAD APPLIED FOR SHARES IN THE ASSESSEE COMPANY. THE ASSESSING OFFICER REQUIRED THE ASSESSE E TO PROVE THE NATURE AND SOURCE OF MONIES RECEIVED AS S HARE CAPITAL, THE CREDITWORTHINESS OF THE APPLICANTS AND THE ITA NO. 1415/MDS//2011 12 GENUINENESS OF THE TRANSACTIONS. AS THE ASSESSEE C OULD NOT PRODUCE ANY EVIDENCE AS TO THE NATURE AND SOURCE, P ENALTIES WERE LEVIED UNDER SECTION 271(1)(C) OF THE ACT, THO UGH THE ASSESSEE SURRENDERED THE AMOUNT IN QUESTION LATER. THIS IS NOT THE CASE IN THE PRESENT APPEAL. 10. SIMILARLY, IN THE CASE OF CIT VS. USHA INTERNAT IONAL LTD. (SUPRA), PENALTY WAS LEVIED FOR A BOGUS CLAIM FOR D EDUCTION IN ORIGINAL RETURN THOUGH RETURN WAS REVISED SUBSEQUEN TLY WITHDRAWING SUCH CLAIM IN THE COURSE OF SURVEY. T HEREFORE, THE DECISIONS RELIED ON BY THE REVENUE ARE DISTINGU ISHABLE ON FACTS. 11. IN THE CASE OF CIT VS. M.PACHAMUTHU & ANOTHER (SUPRA), THE HONBLE MADRAS HIGH COURT HELD THAT M ERE ADDITION AGREED TO BY THE ASSESSEES DURING THE COUR SE OF SURVEY WOULD NOT EMPOWER THE ASSESSING OFFICER TO L EVY THE PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX A CT. WHILE HOLDING SO, THE HONBLE HIGH COURT HELD AS UNDER:- IT WAS NOT ON RECORD THAT CONCEALMENT WAS DISCOVERED AS A RESULT OF ENQUIRY OR INVESTIGATION ITA NO. 1415/MDS//2011 13 OF MATERIAL FOUND DURING THE COURSE OF SURVEY CONDUCTED BY THE DEPARTMENT NOR IT WAS A CASE OF COMPATIBILITY OF THE DISCLOSURE MADE WITH ITEMS OF EXPENDITURE, SALES, PURCHASES, INVESTMENTS OR ANY OTHER THING DISCLOSED BY THE ASSESSEES ON DISCOVERY OF ANY EVIDENCE. MERE ADDITION AGREED TO BY THE ASSESSEE DURING THE COURSE OF SURVEY WOULD NOT EMPOWER THE AO TO LEVY THE PENALTY. ON THE FACE OF THE ABOVE FACTUAL FINDING RECORDED BY THE CIT(A) AND HAVING REGARD TO THE TAX EFFECT INVOLVED IN THESE CASES FOR THE REASONS STATED ABOVE, THE APPEALS ARE LIABLE TO BE DISMISSED. ACCORDINGLY, THE TAX CASE APPEALS ARE DISMISSED. CONSEQUENTLY, THE M.P NO. 2 IS CLOSED. 12. IN THE CASE OF CIT VS. CAREERS EDUCATION INFOTE CH P. LTD. (SUPRA), THE HONBLE PUNJAB & HARYANA HIGH COU RT HELD THAT IN EVERY CASE WHERE SURRENDER IS MADE AN INFE RENCE OF CONCEALMENT OF INCOME CANNOT BE DRAWN UNDER SECTION 58 OF INDIAN EVIDENCE ACT, 1872. IT WAS HELD THAT WHER E THE ASSESSEE SURRENDERED ADDITIONAL INCOME DURING THE C OURSE OF INCOME-TAX SURVEY TO BUY PEACE WITH THE DEPARTMENT AND FILED REVISED RETURN ACCORDINGLY AND THE TRIBUNAL RECORDED A CATEGORICAL FINDING THAT THERE WAS NO MATERIAL TO I NFER CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF INCOME, PENALTY COULD NOT BE IMPOSED UNDER SECTI ON 271(1)(C) OF THE ACT. ITA NO. 1415/MDS//2011 14 13. IN THE PRESENT CASE, THE ASSESSING OFFICER IMPO SED PENALTY CONSIDERING THE ADDITIONAL INCOME ADMITTED DURING THE COURSE OF SURVEY ALLEGING THAT THE ASSESSEE FILED R EVISED RETURN ONLY AFTER DETECTION OF CONCEALED INCOME DUR ING THE COURSE OF SURVEY. IF IT IS A CASE WHERE ANY DETECTI ON OF CONCEALED INCOME WAS UNEARTHED EITHER BY THE SURVEY TEAM OR BY THE ASSESSING OFFICER, WHY IT WAS NOT POINTED OUT IN THE ASSESSMENT ORDER AND NOT AN IOTA OF EVIDENCE WAS NA RRATED TO SUPPORT THE ADDITION MADE EXCEPT THE SURRENDER M ADE BY THE ASSESSEE HIMSELF . WHEN NO CONCEALMENT WAS EITH ER DETECTED BY THE SURVEY TEAM OR BY THE ASSESSING OFF ICER, PENALTY CANNOT BE IMPOSED UNDER SECTION 271(1)(C) O F THE ACT. 14. THE HONBLE MADHYA PRADESH HIGH COURT IN THE CA SE OF CIT VS. SURESH CHANDRA MITTAL (SUPRA) AFFIRMING THE DECISION OF THE TRIBUNAL HELD AS UNDER:- WE FIND OURSELVES IN AGREEMENT WITH THE VIEW TAKEN BY THE TRIBUNAL. IT IS WELL SETTLED THAT UNDE R SECTION 271(1)(C), THE INITIAL BURDEN LIES ON THE REVENUE TO ESTABLISH THAT THE ASSESSEE HAD CONCEALED THE INCOME OR HAD FURNISHED INACCURATE ITA NO. 1415/MDS//2011 15 PARTICULARS OF SUCH INCOME. THE BURDEN SHIFTS TO THE ASSESSEE ONLY IF HE FAILS TO OFFER ANY EXPLANATION FOR THE UNDISCLOSED INCOME OR OFFERS AN EXPLANATION WHICH IS FOUND TO BE FALSE BY THE ASSESSING AUTHORITY. HOWEVER, THE PROVISO TO EXPLANATION 1 PROVIDES FOR SHIFTING OF THIS BURDEN AGAIN WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FOUND TO BE BONA FIDE. 7. IN THE PRESENT CASE, THOUGH IT IS TRUE THAT THE ASSESSEE HAD NOT SURRENDERED AT ALL AND THAT HE HAD DONE SO ON THE PERSISTENT QUERIES MADE BY THE ASSESSING OFFICER, BUT ONCE THE REVISED ASSESSMENT WAS REGULARIZED BY THE REVENUE AND ONCE THE ASSESSING AUTHORITY HAD FAILED TO TAKE ANY OBJECTION IN THE MATTER, THE DECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS REVISED RETURNS AND HIS EXPLANATION THAT HE HAD DONE SO TO BUY PEACE WITH THE DEPARTMENT AND TO COME OUT OF VEXED LITIGATION COULD BE TREATED AS BONA FIDE I N THE FACTS AND CIRCUMSTANCES OF THE CASE. THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN CANCELLING THE PENALTY LEVIED BY THE ASSESSING OFFICER AND AFFIRMED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THIS REFERENCE IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE HOLDING THAT THE TRIBUNAL WAS JUSTIFIED IN DOING SO. 15. IN THE PRESENT CASE, THERE IS NOTHING ON RECORD TO SUGGEST THAT IN THE COURSE OF SURVEY THAT THE DEPAR TMENT HAS DETECTED CONCEALMENT OF INCOME. IT IS ONLY VOLUNTAR Y SURRENDER MADE BY THE ASSESSEE IN RESPECT OF SUNDRY CREDITORS BALANCES OUTSTANDING IN ITS BOOKS OF ACCOUNT. IN THE CIRCUMS TANCES, WE ARE UNABLE TO SEE THAT THERE IS CONCEALMENT OF INCO ME OR ITA NO. 1415/MDS//2011 16 FURNISHING OF INACCURATE PARTICULARS OF INCOME BY T HE ASSESSEE WARRANTING LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THEREFORE, WE SUSTAIN THE IMPUGNED ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN DELETING TH E PENALTY UNDER SECTION 271(1)(C) OF THE ACT. NO INTE RFERENCE IS WARRANTED. THE GROUNDS RAISED BY THE REVENUE ARE RE JECTED. 16. THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY, THE 6 TH DAY OF SEPTEMBER, 2013 AT CHENNAI. SD/- SD/- (ABRAHAM P.GEORGE ) (CHALLA NA GENDRA PRASAD) ACCOUNTANT MEMBER J UDICIAL MEMBER CHENNAI, DATED THE 6 TH SEPTEMBER, 2013. SOMU COPY TO: (1) APPELLANT (4 ) CIT(A) (2) RESPONDENT (5 ) D.R. (3) CIT (6 ) G.F.