Klaus Dieter Bergmann, Coimbatore V. ACIT, Coimbatore

ITA 149/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9484 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 27-01-2016
• Court: TRIBUNAL
• Department Lawyers: SUNDER RAO
• Assessee Lawyers: K N RAVICHANDRAN
• Keywords: Unexplained cash credit; Salary income; Deemed to accrue or arise in india; Onus to prove; Revised return

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , ! ' . #$ , % &' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ ITA NOS. 148 TO 152/MDS/2016 / ASSESSMENT YEARS : 2007-08 TO 2011-12 KLAUS DIETER BERGMAN, A1, PARSEN SESH NESTLE, SOUTH WEST, NANJUNDAPURAM ROAD, COIMBATORE 641 036. PAN ANEPB5160D APPELLANT) V. THE ASST. COMMISSIONER OF INCOME-TAX, SALARY CIRCLE, RACE COURSE ROAD, COIMBATORE 641 018 RESPONDENT) / APPELLANT BY : SHRI K.N.RAVICHANDRAN, CA / RESPONDENT BY : SHRI SUNDER RAO, CIT ! / DATE OF HEARING : 15.03.2016 '# ! / DATE OF PRONOUNCEMENT: 22.04.2016 ( / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAIN ST DIFFERENT ORDERS OF THE COMMISSIONER OF INCOME-TAX( APPEALS) FOR THE ASSESSMENT YEARS 2007-08 TO 2011-12. SINCE, TH E ISSUE ITA 148 TO 152/16 2 INVOLVED IN THESE APPEALS IS COMMON, THESE ARE CLUB BED TOGETHER, HEARD TOGETHER AND DISPOSED OFF BY THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE MAIN GROUND IN THESE APPEALS IS WITH REGARD TO CONFIRMING THE LEVY OF PENALTY U/S.271(1)(C) OF THE ACT. 3. THE FACTS OF THE CASE ARE THAT THERE WERE ENQUIR IES U/S.131(1) OF THE ACT ON 16.5.2012. THE ASSESSEE W AS SHOWING VERY LOW SALARY INCOME IN HIS RETURN IN COMPARISON WITH THE ACTUAL SALARIES HE HAS RECEIVED. NOTICE U/S.148 WAS ISSU ED AND THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING ADDIT IONAL INCOME. LATER, ASSESSMENT WAS COMPLETED MAKING VARIOUS DISA LLOWANCE LIKE ENTERTAINMENT ALLOWANCE U/S.16(II), SOCIAL SEC URITY CONTRIBUTION AND TRAVELLING ALLOWANCE. ACCORDING T O THE AO, THIS IS A FIT CASE FOR LEVY AND LEVIED PENALTY U/S.271(1 )(C). IN VIEW OF THE PROCEEDINGS U/S.271(1)(C) OF THE ACT IN ALL THE SE ASSESSMENT YEARS, THE ASSESSEE CARRIED THE MATTER BEFORE THE C IT(APPEALS). 4. THE CIT(APPEALS) OBSERVED THAT THE ASSESSEE HAS FILED ORIGINAL RETURN OF INCOME DECLARING LOWER FIGURE. AS THERE WAS AN INFORMATION RECEIVED, DOUBLE TAXATION AVOIDANCE AGR EEMENT, ITA 148 TO 152/16 3 INVESTIGATION WING CONDUCTED A SURVEY U/S.131(1) OF THE ACT. AFTER SURVEY NOTICE U/S.148 OF THE ACT, THE ASSESSE E FILED ADDITIONAL INCOME IN THE REVISED RETURN OF INCOME. THE ASSESSMENT WAS ALSO RESULTED IN VARIOUS DISALLOWANC ES AND HENCE, THE AO LEVIED PENALTY. THE DIFFERENCE IN TH E RETURN OF INCOME FILED U/S.139(1) AND THE RETURN OF INCOME FI LED AFTER ISSUE OF NOTICE U/S.148 OF THE ACT DECLARING ADDITIONAL I NCOME, IS NOTHING BUT FURNISHING OF INACCURATE PARTICULARS OF INCOME. THUS, HE RELIED ON THE JUDGMENT OF THE SUPREME COURT IN T HE CASE OF MAK DATA V. CIT (38 TAXMAN 448). HE ALSO RELIED ON THE ORDER OF THE TRIBUNAL, CHENNAI BENCH IN THE CASE OF RATTHA C ITADINES BOULEVARD IN ITA NO.243/MDS/15 AND CONFIRMED THE F INDING OF THE AO IN LEVYING THE PENALTY. AGAINST THIS, THE A SSESSEE IS IN APPEAL BEFORE US. 5. THE LD. AR SUBMITTED THAT THE ONLY PROCEEDINGS B EFORE THE ACIT WERE PROCEEDINGS U/S.148 AND THERE WERE NO OTH ER PROCEEDINGS AND IN THE ORDER U/S.271(1)(C) IN PARA 3 IN THE 4 TH LINE OF PAGE 4, THE ACIT, HERSELF ADMITS THAT CORRECT R ETURN OF INCOME U/AS.148(1) IS FILED AND THEREFORE THERE IS NO CON CEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME IN T HE COURSE OF ITA 148 TO 152/16 4 PROCEEDINGS BEFORE THE ACIT. FURTHER, HE SUBMITTE D THAT THE PENALTY NOTICE U/S.274 HAS NOT SPECIFICALLY STATED THE GROUNDS MENTIONED IN SEC.271(1)(C) AS LAID DOWN IN TERMS OF THE DECISION IN CIT V. MANJUNATHA COTTON & GINNING FACTORY (2013 ) 35 TAXMANN.COM 250(KARNATAKA). ACCORDING TO THE LD. A R, IN CASES COVERED UNDER SEARCH (UNTIL 1.7.2012), THE PENALTY PRESCRIBED U/S.271AAA IS NOT LEVIABLE, IF THERE IS AN ADMISSI ON AND PAYMENT OF TAXES AND INTEREST AND EVEN IN CASES OF ADDITION S THE QUANTUM OF LEVY OF PENALTY IS @ 10% U/S.271AAA. THE LEVY O F PENALTY @100% CAUSES DISCRIMINATION AND IGNORES THE EXCEPTI ON PROVIDED IN SIMILAR CASES. FURTHER, THE LD. AR SUB MITTED THAT THE ENTIRE ASSESSMENT IS BASED ON DEEMED INCOME, THE DE EMED INCOME IS NOT LIABLE FOR PENALTY. 5.1 ACCORDING TO THE LD. AR, THE ASSESSMENT HAS NOT RECKONED THE STATUS OF THE ASSESSEE CORRECTLY FOR THESE ASST . YEARS WHICH FALLS UNDER THE CATEGORY OF NON-RESIDENT AND ACCORD INGLY, NO INCOME IS NOT LIABLE FOR ASSESSMENT. FURTHER, IT I S SUBMITTED THAT THE AO ISSUED NOTICE U/S.274 IN PRESCRIBED MANNER W ITHOUT STRIKING DOWN UNNECESSARY DOCUMENTS. AS SUCH, PENA LTY CANNOT BE LEVIED. TO SUPPORT HIS VIEW, THE LD. AR RELIED ON THE DECISION ITA 148 TO 152/16 5 IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (35 TAXMANN.COM 250 (KARNATAKA). ADDITIONAL INCOME DEC LARED BY THE ASSESSEE CONSEQUENT TO SURVEY ACCEPTED BY THE A O, IMPOSITION OF PENALTY IS NOT JUSTIFIED. FOR THIS P ROPOSITION, HE RELIED ON THE DECISION OF THE TRIBUNAL, MUMBAI BENC H IN THE CASE OF VIPUL LIFE SCIENCES LTD. V. DCIT (57 TAXMANN.COM 25). THERE IS NO SPECIFIC CHARGE AGAINST THE ASSESSEE THAT THE RE IS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS, PENALTY CANNOT BE LEVIED AS HELD BY THE KOLKATA BEN CH OF THE TRIBUNAL IN THE CASE OF CHANDRA PRAKASH BUBNA V. IT O (64 TAXMANN.COM 155). ACCORDING TO HIM, ONCE THE INCOM E DECLARED IN THE RETURN FILED IN PURSUANCE OF NOTICE U/S.148 WHICH IS TREATED AS RETURN FILED U/S.139, NO PENALTY U/S. 271(1)(C) OF THE ACT, IS LEVIED. FOR THIS PROPOSITION, HE RELIED ON THE DECISION OF THE TRIBUNAL, DELHI BENCH IN THE CASE OF ANKUR AGGA RWAL V. DEPTT. OF IT IN ITA NOS.4398 & 4399/DEL/2012 DATED 19.8.20 15. ACCORDING TO HIM, PENALTY CANNOT BE LEVIED IN THE C ASE OF DEEMED INCOME AS HELD BY THE TRIBUNAL, MUMBAI BENCH IN THE CASE OF HARISH VOOVAYA SHETTY V. ITO IN ITA NO.6383 /MUM/2012 DATED 3.7.2014. FURTHER, HE SUBMITTED THAT THE M ATERIAL ITA 148 TO 152/16 6 COLLECTED DURING THE SURVEY, CANNOT BE USED FOR LEV YING PENALTY. FOR THIS PROPOSITION, HE RELIED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF DCIT V. SATISH B. GUPTA REPORTED IN 42 SOT 48(AHD). ACCORDING TO HIM, JUDGMENT OF THE TRIBUN AL TO BE FOLLOWED AND ARE BINDING PRECEDENTS. FOR THIS PURP OSE, HE RELIED ON THE DECISION OF THE BOMBAY HIGH COURT IN THE CAS E OF HDFC BANK LIMITED V. DCIT IN W.P.R.NO.1753 OF 2016 DATED 25.2.2016. 6. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE R OF THE CIT (APPEALS). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IN THIS CASE, THE ASSESSEE FILED THE OR IGINAL RETURN AS FOLLOWS : 2007-08 ` 9,75,000/- 2008-09 ` 10,00,000/- 2009-10 ` 11,00,000/- 2010-11 ` 11,40,000/- 2011-12 ` 1,32,0000/- THE DIFFERENCE BETWEEN THE ORIGINAL RETURN OF INCOM E AND REVISED RETURN OF INCOME FILED BY THE ASSESSEE FOR THESE AS SESSMENT YEARS ARE AS FOLLOWS: ITA 148 TO 152/16 7 2007-08 ` 4,03,428/- 2008-09 ` 56,82,173/- 2009-10 ` 54,95,030/- 2010-11 ` 53,57,823/- 2011-12 ` 53,13,293/- OVER AND ABOVE, THERE IS ALSO ADDITIONS FOR THESE A SST. YEARS FOR THESE ASST. YEARS TOWARDS DISALLOWANCE ON ACCOUNT O F ENTERTAINMENT ALLOWANCE, TRAVELLING EXPENSES ETC., WHICH ARE AS FOLLOWS : 2007-08 ` 6,84,370/- 2008-09 ` 31,76,547/- 2009-10 ` 32,93,861/- 2010-11 ` 33,78,759/- 2011-12 ` 29,93,052/- 7.1 THE ASSESSING OFFICER CONSIDERED ONLY THE DIFFE RENCE BETWEEN THE ORIGINAL RETURN AND REVISED RETURN FOR LEVY OF PENALTY U/S.271(1)(C) OF THE ACT. NOW, THE CONTENTION OF T HE ASSESSEES COUNSEL IS THAT SINCE UNWARRANTED COLUMNS IN PRESCR IBED FORM ARE NOT STRUCK DOWN, NOTICE U/S.148 OF THE ACT ISSU ED BY THE AO IS BAD IN LAW AND THE PENALTY CANNOT BE SUSTAINED. IN OUR OPINION, THE PROVISIONS OF SEC.292B OF THE ACT TAKE CARE SUCH KIND OF OMISSIONS WHILE ISSUING NOTICE. THE PROVIS IONS OF SEC.292B ARE AS FOLLOWS: ITA 148 TO 152/16 8 292B. NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUM MON OR OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TA KEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISIONS OF THIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN O F INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OT HER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. 8. NOW, THE QUESTION OF CONCEALMENT OF INCOME OR FU RNISHING OF INACCURATE PARTICULARS OF INCOME IS CORRECT OR N OT FOR THE PURPOSE OF LEVYING PENALTY U/S.271(1)(C) OF THE ACT , IF IT DETERMINED WITH REFERENCE TO THE ORIGINAL RETURN. EVEN THE INCOME IS SURRENDERED BY THE ASSESSEE IN THE REVISE D RETURN, THE ASSESSEE STILL HAS TO EXPLAIN, WHY THE INCOME WAS N OT SHOWN TRULY AND ACCURATE PARTICULARS OF INCOME WERE NOT F URNISHED IN THE ORIGINAL RETURN OF INCOME. 8.1 BUT, IN THE PRESENT CASE, THE ASSESSEE HAS NOT DISC LOSED THE RECEIPTS OF VARIOUS ALLOWANCES TO THE DEPARTMEN T. THESE RECEIPTS/ALLOWANCES WERE DISCLOSED BY THE ASSESSEE IN THE REVISED RETURN ONLY AFTER THE DETECTION BY THE DEPA RTMENT. THESE RECEIPTS WOULD NOT HAVE BEEN DISCLOSED TO THE DEPAR TMENT, HAD THE DEPARTMENT NOT DETECTED THE SAME. FURTHER, IN T HE CASE OF ITA 148 TO 152/16 9 K.P. MADHUSUDHANAN VS. CIT (2001) 169 CTR (SC) 489 : (2001) 251 ITR 99 (SC), IT WAS HELD THAT IT CANNOT BE LAID DOWN AS A GENERAL PRESCRIPTION THAT NO PENALTY CAN BE LEVIED FOR AGREED ASSESSMENT; ASSESSEE HAVING SURRENDERED THE AMOUNT OF UNEXPLAINED CREDITS FOR ASSESSMENT CLEARLY ADMITTIN G THAT ENTRIES WERE NOT RECORDED BY HIM ON THE CORRECT DATES AND T EMPORARY LOANS OBTAINED BY HIM WERE NOT RECORDED AT ALL, HE WAS LIABLE TO PENALTY UNDER S. 271(1)(C) R/W EXPLN. 1 OF THE IT A CT. 8.2 FURTHER, IN THE PRESENT CASE, THE ASSESSEE HAS NOT BEEN ABLE TO LEAD ANY EVIDENCE THAT THE REVISED RETURNS WERE FILED BY THE ASSESSEE MERELY AS A RESULT OF INADVERTENT MIST AKES OR OMISSIONS. THE ASSESSEE FURNISHED INACCURATE PARTIC ULARS OF HIS INCOME AND ALSO CONCEALED PARTICULARS OF HIS INCOME WHILE FILING THE ORIGINAL RETURN AND WAS NOT ABLE TO ESTABLISH T HE INADVERTENT MISTAKE OR OMISSION IN THE ORIGINAL RETURN, WHEN DE CLARED SHOWING MUCH LARGER INCOME IN THE REVISED RETURN. O UR VIEW OF THIS IS SUPPORTED BY THE JUDGMENT OF SUPREME COURT IN THE CASE OF G.C. AGARWAL VS. CIT (1991) 95 CTR (SC) 257 : (1 990) 186 ITR 571 (SC), WHERE THE SUPREME COURT CONFIRMED THE JUDGMENT ITA 148 TO 152/16 10 OF GAUHATI HIGH COURT IN THE CASE OF G.C. AGARWAL V S. CIT 1976 CTR (GAU) 82 : (1976) 102 ITR 408 (GAU). 8.3 FURTHER, IN THE CASE OF RAJESH CHAWLA VS. CIT (2006 ) 203 CTR (P&H) 209, THE PUNJAB & HARYANA HIGH COURT HAS BEEN HELD THAT THE ASSESSEE HAS FILED THE REVISED RETURN SURRENDERING THE ADDITIONAL INCOME ONLY ON COMING TO KNOW ABOUT THE DETECTION OF CONCEALMENT BY THE DEPARTMENT AND THAT IT IS NOT A CASE OF BONA FIDE VOLUNTARY DISCLOSURE, PENALTY UND ER S. 271(1)(C) IS LEVIABLE. HENCE, IN OUR OPINION, IT IS NOT POSSI BLE TO HOLD THAT IN EVERY CASE MERE SURRENDER OF INCOME WILL FORECLOSE ANY ACTION OF CONCEALMENT OF INCOME. THE PENALTY IS LEVIED ON THE BASIS OF THE RELEVANT MATERIAL AND REVISED RETURN WAS FILED ON C OMING TO KNOW ABOUT THE DETECTION OF THE CONCEALMENT AND THE ASSE SSEE CANNOT ESCAPE PENALTY MERELY ON THE GROUND THAT HE HAS SUR RENDERED THE IMPUGNED AMOUNT. 8.4 THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY ARG UED THAT PENALTY IS NOT EXIGIBLE IN THE LIGHT OF JUDGME NT OF THE SUPREME COURT IN THE CASE OF CIT VS. SURESH CHANDRA MITTAL (SUPRA), WHERE THEIR LORDSHIPS HAVE AFFIRMED THE DE CISION OF THE MADHYA PRADESH HIGH COURT IN CIT VS. SURESH CHANDRA MITTAL ITA 148 TO 152/16 11 (SUPRA) BY OBSERVING THAT NO INTERFERENCE WITH THE ORDER OF THE HIGH COURT IS CALLED FOR. HENCE, WE CONSIDER THE JU DGMENT OF MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. SU RESH CHANDRA MITTAL (SUPRA) AND REPRODUCE THE FOLLOWING FINDINGS OF FACTS RECORDED BY THE TRIBUNAL AS MENTIONED IN THE HIGH COURT JUDGMENT : 'THE ASSESSEE HAD NO CHANCE OF CARRYING THROUGH HIS EXPLANATION AND THE AO TOO DID NOT RECORD ANY FINDI NG AS TO THE ACCEPTABILITY OR OTHERWISE OF THE EXPLANATION O F THE ASSESSEE. UNDER THESE CIRCUMSTANCES, THE PROVISO TO EXPLN. 1 TO S. 271 IS NOT ATTRACTED. THE REVENUE DID NOT A T ALL DISCHARGE THE BURDEN TO PROVE THAT THERE WAS CONCEA LMENT OF INCOME BY THE ASSESSEE. IT SIMPLY RESTED ITS CON CLUSION ON THE ACT OF VOLUNTARY SURRENDER BY THE ASSESSEE, WHI CH OBVIOUSLY WAS DONE IN GOOD FAITH AND TO BUY PEACE.' THEIR LORDSHIPS, THEREAFTER, HELD AS UNDER : 'IN THE PRESENT CASE, THOUGH IT IS TRUE THAT THE AS SESSEE HAD NOT SURRENDERED AT ALL AND THAT HEHAD DONE SO ON TH E PERSISTENT QUERIES MADE BY THE AO, BUT ONCE THE REV ISED ASSESSMENT WAS REGULARISED BY THE REVENUE AND ONCE THE ASSESSING AUTHORITY HAD FAILED TO TAKE ANY OBJECTIO N IN THE MATTER, THE DECLARATION OF INCOME MADE BY THE ASSES SEE IN HIS REVISED RETURNS AND HIS EXPLANATION THAT HE HAD DONE SO TO BUY PEACE WITH THE DEPARTMENT AND TO COME UP OF VEXED LITIGATION COULD BE TREATED AS BONA FIDE IN THE FAC TS AND CIRCUMSTANCES OF THE CASE. THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN CANCELLING THE PENALTY LEVIED BY THE A O AND AFFIRMED BY THE CIT(A) IN THE FACTS AND CIRCUMSTANC ES OF THE CASE. THIS REFERENCE IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE HOLDING THAT THE TRIBUNAL WAS JUSTIFIED IN DOING SO.' ITA 148 TO 152/16 12 FROM THE ABOVE, IT EMERGES AS UNDER : (I) THE TRIBUNAL HAS GIVEN A FINDING OF FACT A ND FOUND THAT THE AO DID NOT CONSIDER THE EXPLANATION OF THE ASSESSEE, NOT RECORDED ANY FINDING OF ITS ACCEPTABI LITY OR OTHERWISE. (II) EXPLN. 1 TO S. 271(1)(C) WAS NOT ATTRACTED AND THE REVENUE FAILED TO PROVE THAT THIS WAS CONCEALMENT O F INCOME. (III) THAT SURRENDER HAS BEEN MADE IN GOOD FAITH AN D TO BUY PEACE WITH THE DEPARTMENT AND TO COME OUT OF VEXED LITIGATION. FURTHER, THE TRIBUNAL IN THE ABOVE CASE HAD FOUND A S A FACT THAT THE ASSESSEE HAD DECLARED DISPUTED INCOME IN THE RE VISED RETURN AND THE REVENUE HAD NOT TAKEN ANY OBJECTION IN THIS REGARD. IN THOSE CIRCUMSTANCES, THE TRIBUNAL CAME TO THE CONCL USION THAT NO PENALTY WAS EXIGIBLE. IT WAS ON THIS FACTUAL FINDIN G, THE MADRAS HIGH COURT UPHELD THE CANCELLATION OF PENALTY BY TH E TRIBUNAL AND LATER THE SAME WAS CONFIRMED BY THE SUPREME COURT. IN THE PRESENT CASE, WE HAVE ALREADY FOUND THAT THE ASSESS EE HAS OFFERED NO EXPLANATION AND DISCLOSURE MADE BY THE A SSESSEE AFTER DETECTION OF THESE RECEIPTS BY THE DEPARTMENT . THE ABOVE DISCUSSION SHOWS THAT IT WAS NOT A CASE OF BONA FID E VOLUNTARY DISCLOSURE BUT ONLY TO AVOID CONSEQUENCES OF LAW. I T IS NOT ITA 148 TO 152/16 13 POSSIBLE TO HOLD THAT MERE REVISED RETURN OF INCOME WILL FORECLOSE ANY ACTION FOR CONCEALMENT OF INCOME. 8.5 FURTHER, IN THE CASE OF DURGA TIMBER WORKS VS. CIT (79 ITR 63)(DELHI), IT HAS BEEN HELD THAT WHERE THE ASS ESSEE HIMSELF CONCEDED THAT CASH CREDIT ENTRIES COULD BE TREATED AS CONCEALED INCOME, THE DEPARTMENT IS NOT REQUIRED TO PLACE ANY FURTHER INDEPENDENT EVIDENCE TO PROVE CONCEALMENT. IT IS P ERTINENT TO NOTE THAT IN THE CASE OF WESTERN AUTOMOBILES (INDIA ) VS. CIT (112 ITR 1048)[BOMBAY], THE BOMBAY HIGH COURT HAS HELD T HAT WHERE THE ASSESSEE ADMITTED HUNDI LOANS TO BE HIS BUSINES S INCOME FOR THE RELEVANT ASSESSMENT YEAR, THE BURDEN ON THE REV ENUE STOOD DISCHARGED AND SHIFTED TO THE ASSESSEE TO SHOW THAT OMISSION WAS INCORRECT OR ILLEGAL OR FOR A REASON WHICH WOUL D SUGGEST THAT IT WAS NOT HIS CONCEALED INCOME AND THE SAME HAVING NOT BEEN DONE, PENALTY UNDER S. 271(1)(C) WAS VALID. FURTHE R, IN THE CASE OF CIT VS. A. SREENIVASA PAI (242 ITR 29)[KERALA], IT WAS HELD THAT PENALTY UNDER S. 271(1)(C) OF THE ACT WAS LEVI ABLE IN RESPECT OF ADDITIONAL INCOME OFFERED BY THE ASSESSEE IN THE REVISED RETURN AS IT WAS FILED BY THE ASSESSEE ONLY AFTER T HE DEPARTMENT HAD IMPOUNDED ASSESSEES BOOKS AND STARTED ENQUIRIE S WITH ITA 148 TO 152/16 14 REGARD TO RETURN FILED SO AS TO INCLUDE THE CONCEAL ED INCOME, CANNOT BE TREATED AS REVISED RETURN. THE INEVITABLE CONCLUSION WAS THAT THE PENALTY WAS IMPOSABLE AND THE TRIBUNAL WAS NOT JUSTIFIED IN CANCELLING IT. IT IS ALSO TO BE NOTED THAT IN THE CASE OF SIVAGAMINATHA MOOPANAR & SONS VS. CIT (52 ITR 591), THE MADRAS HIGH COURT HAS HELD THAT WHERE THE ASSESSEE HAS FURNISHED FURTHER PARTICULARS AFTER HE CAME TO KNOW THAT THE DEPARTMENT IS NOT SATISFIED THAT THERE WAS A CONCEA LMENT OF THE PARTICULARS OF INCOME IN THE FIRST INSTANCE, OR AT ANY RATE, A DELIBERATE FURNISHING OF INACCURATE PARTICULARS IN THE ORIGINAL RETURN FILED BY THE ASSESSEE, PENALTY IS LEVIABLE U NDER S. 27L(1)(C) OF THE ACT. 8.6 IN THE CASE OF MAHAVIR METAL WORKS VS. CIT (1973) 9 2 ITR 513 (P&H), IT HAS BEEN HELD AS UNDER : 'PENALTY PROCEEDINGS BEING OF A PENAL NATURE IT IS FOR THE IT DEPARTMENT TO ESTABLISH THAT THE ASSESSEE WAS GUILTY OF CONCEALMENT OF PARTICULARS OF HIS INCOME. BUT IN A CASE WHERE THE ASSESSEE HIMSELF DURING THE COURSE OF ASSESSMENT PROCEEDINGS FILES A REVISED RETURN AND OWNS A DISPUTED AMOUNT TO BE HIS INCOME AND THE ITA 148 TO 152/16 15 ADMISSION OF THE ASSESSEE IS PROVED BY THE DEPARTMENT DURING PENALTY PROCEEDINGS THE ONUS ON THE DEPARTMENT IS DISCHARGED. IN THAT SITUATION THE ASSESSEE IS PUT TO PROOF AND IT IS OPEN TO THE ASSESSEE TO PROVE IN THE PENALTY PROCEEDINGS THAT THE ADMISSION MADE BY HIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS WAS WRONGLY OR ILLEGALLY MADE OR WAS INCORRECT. HE CAN LEAD EVIDENCE DURING PENALTY PROCEEDINGS TO SHOW THAT HE HAD NOT CONCEALED ANY INCOME OR FURNISHED INACCURATE PARTICULARS THEREOF. IF HE FAILS TO PROVE THIS, THE IT DEPARTMENT WOULD BE JUSTIFIED IN LEVYING PENALTY ON HIM UNDER S. 271 (L)(C).' IN THE PRESENT CASE, THE ASSESSEE HAS NOT LED ANY E VIDENCE TO SHOW THAT THE SURRENDER WAS MADE BY HIM WRONGLY OR ILLEGALLY AND ALSO THERE IS NO EVIDENCE TO SUGGEST THAT THE A SSESSEE HAS NOT CONCEALED HIS INCOME OR FURNISHED INACCURATE PA RTICULARS OF HIS INCOME. ON THE CONTRARY, THE EVIDENCE COLLECTED BY THE DEPARTMENT IS THAT THE ASSESSEE IS GUILTY OF CONCEA LING AND FURNISHING INACCURATE PARTICULARS OF HIS INCOME. AC CORDINGLY, THE AO WAS JUSTIFIED IN LEVYING PENALTY UNDER S. 271(1) (C) OF THE ACT. 9. SINCE, WE HAVE PLACED RELIANCE ON THE JUDGMENTS OF THE SUPREME COURT, WE ARE NOT INCLINED TO FOLLOW THE JU DGMENTS ITA 148 TO 152/16 16 RELIED ON BY THE ASSESSEES COUNSEL. ACCORDINGLY, WE CONFIRM THE ORDERS OF THE LOWER AUTHORITIES IN LEVYING THE PENA LTY U/S.271(1)(C) OF THE ACT. 10. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 22 ND OF APRIL, 2016 AT CHENNAI. SD/- SD/- ( $ % . & '( ) ( ) * + , ) DUVVURU RL REDDY - ./012304556037- 8 9: /JUDICIAL MEMBER ! 9:;<<5=1>01>?@AB@3 )8 /CHENNAI, C9 /DATED, THE 22 ND APRIL, 2016. MPO* 9D EFGF /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. H- /CIT(A) 4. H /CIT 5. FIJ K /DR 6. J(L /GF.