B.R. TV, MUMBAI V. ACIT CIR 11(1), MUMBAI

ITA 2135/MUM/2010

• Counselvise Citation: 213519914 RSA 2010
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 27-04-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 17-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: H S RAHEJA
• Keywords: Depreciation; Wrong claim; Corroborative evidences; Agreed addition; Revised return; Bonafide mistake
• Section: 139(5); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G BEFORE SHRI D. MANMOHAN (VP) & SHRI PRAMOD KUMAR (A M) I.T.A.NO. 2135/MUM/2010 (ASSESSMENT YEAR : 2003-04 ) M/S. B.R. TV ANAND VILLA PLOT NO. G-38, 15 TH ROAD SANTACRUZ WEST MUMBAI-400054. VS. ACIT CIRCLE 11(1) AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. APPLICANT RESPONDENT PAN/GIR NO. : AAAFB0941M ASSESSEE BY : SHRI H.S. RAHEJA DEPARTMENT BY : SHRI A.K. NAYAK ORDER PER D. MANMOHAN VP :- PENALTY OF ` 6,67,750/- LEVIED BY THE ASSESSING OFFICER U/S. 271(1)(C) OF THE I.T. ACT HAVING BEEN AFFIRMED BY L EARNED CIT(A), ASSESSEE- FIRM IS IN APPEAL BEFORE US. 2. FACTS NECESSARY FOR DISPOSAL OF THIS APPEAL ARE STATED IN BRIEF. THE ASSESSEE-FIRM IS ENGAGED IN THE BUSINESS OF PRODUCT ION, EXPORT AND MARKETING OF T.V. SERIALS. IN RESPECT OF THE PREVIO US YEAR RELEVANT TO A.Y. 2003-04 ASSESSEE DECLARED AN INCOME OF ` 46,93,360/- ON 1.12.2003 AND THE RETURN WAS ACCOMPANIED BY AN AUDIT REPORT U/S. 44AB, PROFIT AND LOSS ACCOUNT, BALANCE-SHEET ETC., RETURN WAS PROCES SED U/S. 143(1) OF THE ACT ON 12.4.2004. THEREAFTER THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE WAS ISSUED U/S.143(2)/142(1) OF THE ACT. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF LOANS AND ADVANCES, BILLS IN SUPPORT OF THE ADDITION TO FIXED ASSETS. 3. DURING THE COURSE OF VERIFICATION OF THE BOOKS I T WAS NOTICED THAT A SUM OF ` 5,50,000/- WAS SHOWN AS AN AMOUNT RECEIVED FROM N AYAMMA R. MULLAH. WHEN CALLED UPON TO SUBSTANTIATE THE ADV ANCE, ASSESSEE COULD NOT FURNISH ANY DOCUMENTARY EVIDENCE EXCEPT STATING THAT THE SAID M/S. B.R. TV 2 AMOUNT WAS PAYABLE TOWARDS CAR PURCHASE. THE ASSESS ING OFFICER REJECTED THE CLAIM FOR WANT OF PROOF AND ALSO OBSER VED THAT THE PURCHASE OF CAR ITSELF IS NOT BEYOND DOUBT. 4. SIMILARLY, THE ASSESSEE WAS CALLED UPON TO FURNI SH COPIES OF THE BILLS IN SUPPORT OF ADDITIONS MADE TO FIXED ASSETS. VIDE LETTER DATED 20.12.2005 ASSESSEES REPRESENTATIVE FURNISHED SOME BILLS. BUT BILLS IN RESPECT OF STUDIO EQUIPMENT WORTH ` 11,00,000/- COULD NOT BE SUBMITTED. VIDE LETTER DATED 20.12.2005 ASSESSEE HAD WITHDRAWN ITS CLAIM OF DEPRECIATION WITH RESPECT TO THE STUDIO EQUIPMENT W ORTH ` 11,00,000/-, ACCORDINGLY THE SAME WAS DISALLOWED BY THE ASSESSIN G OFFICER. FOR WANT OF PROPER EVIDENCE THE ASSESSING OFFICER HAS ALSO M ADE FURTHER DISALLOWANCES AND ACCORDINGLY WORKED OUT THE TOTAL INCOME ` 85,44,450/. 5. CONSEQUENTLY PENALTY PROCEEDINGS WERE INITIATED BY THE ASSESSING OFFICER. WE ARE CONCERNED WITH THE PENALTY LEVIED C ONSEQUENT TO THE ADDITION OF ` 5,50,000/- AND DISALLOWANCE OF ` 11,00,000/-. IN RESPONSE TO THE SHOW-CAUSE NOTICE THE ASSESSEE CONTENDED THA T DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSESSEE-FIRM WAS COLLECT ING INFORMATION SO AS TO FURNISH THE DETAILS AND AT THAT POINT OF TIME IT WAS REALIZED THAT DEPRECIATION IN RESPECT OF STUDIO EQUIPMENT AMOUNTI NG TO ` 11,00,000/- WAS WRONGLY CLAIMED SINCE THIS EQUIPMENT HAD NOT BE EN USED DURING THE YEAR. IT WAS FURTHER SUBMITTED THAT INITIALLY DEPRE CIATION WAS CLAIMED BECAUSE OF THE FACT THAT EQUIPMENT WAS PURCHASED (B OOKING MADE) AND THUS APPEARED UNDER THE HEAD FIXED ASSETS. SINCE CLAIM OF DEPRECIATION WAS WITHDRAWN VOLUNTARILY, IT IS NOT AN ISSUE OF CO NCEALING INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. 6. SIMILARLY, SUBSEQUENT TO EXPLANATION DATED 23.1. 2006 ASSESSEE- FIRM FILED ANOTHER LETTER DATED 17.3.2008 WHEREIN A SSESSEE REITERATED THE CLAIM MADE EARLIER, AS REGARDS WITHDRAWAL OF CLAIM OF DEPRECIATION. FURTHER IT WAS SUBMITTED THAT A SUM OF ` 5,50,000/- WAS SHOWN AS OUTSTANDING UNDER THE HEAD LOANS AND ADVANCES. IT WAS NOT A BORROWING BUT THE BALANCE AMOUNT WAS PAYABLE TO NAYAMMA R. MU LLA FOR PURCHASE OF A CAR. CAR WAS PURCHASED FROM THIS PERSON FOR A SUM OF ` 25,50,000/- OUT OF WHICH, ` 20,00,000/- HAS BEEN PAID BY ICICI BANK AND BALANC E M/S. B.R. TV 3 WAS PAYABLE BY THE ASSESSEE. THEREFORE THIS CANNOT BE TREATED AS ADVANCE BUT IN FACT IT IS A LIABILITY. IT WAS THUS CONTENDE D THAT THERE IS NO CASE MADE OUT BY THE ASSESSING OFFICER FOR LEVY OF PENAL TY, VIS--VIS ADDITION OF ` 5,50,000/-. 7. WITH REGARD TO THE REVISED CLAIM OF DEPRECIATION , CASE OF THE ASSESSEE WAS THAT IN THE PROCESS OF COLLECTING INFO RMATION, TO ENABLE THE ASSESSEE TO FURNISH THE SAME BEFORE THE ASSESSING O FFICER, IT WAS REALISED THAT DEPRECATION IN RESPECT OF STUDIO EQUIPMENT, TO THE TUNE OF ` 11,00,000/-, WAS WRONGLY CLAIMED THOUGH IT WAS NOT PUT TO USE. BUT FOR THE REVISED STATEMENT OF THE ASSESSEE, DEPARTMENT W OULD HAVE NEVER KNOWN THAT THE EQUIPMENT HAD NOT BEEN USED AND THUS IT WAS BEFORE DETECTION BY THE DEPARTMENT, IN WHICH EVENT PENALTY IS NOT LEVIABLE ON AN AGREED ADDITION. 8. VIDE ORDER DATED 27.3.2008 THE ASSESSING OFFICER REJECTED THE EXPLANATION OF THE ASSESSEE, IN RESPECT OF THE ADDI TION OF ` 5,50,000/- AND DISALLOWANCE OF DEPRECIATION OF ` 11,00,000/- AND LEVIED MINIMUM PENALTY WHICH IS EQUIVALENT TO THE TAX SOUGHT TO BE EVADED BY THE ASSESSEE. IN THIS REGARD THE ASSESSING OFFICER OBSE RVED THAT IN THE QUANTUM APPEAL LEARNED CIT(A) NOTICED THAT THERE IS NO PROOF WITH REGARD TO THE PURCHASE OF CAR. EVEN IF IT IS ACCEPTED THAT THE CAR WAS PURCHASED, IT WAS PURCHASED BY UTILISING LOAN TAKEN FROM ICICI BANK LTD., AND THE PAPERS RELATING TO THE PURCHASE WAS STATED TO BE AV AILABLE WITH THE BANK. THE ASSESSEE HAS NOT FURNISHED ANY DETAILS OR CONTE MPORANEOUS EVIDENCE TO PROVE THAT THE ASSESSEE HAD PURCHASED THE CAR AN D THE PURCHASES WERE MADE NOT ONLY BY TAKING FINANCE FROM ICICI BAN K BUT THE ASSESSEE AGREED TO PAY FURTHER SUM OF ` 5,50,000/-. IN THE ABSENCE OF ANY PROOF THE ASSESSING OFFICER CONCLUDED THAT THE CREDIT REM AINS UNEXPLAINED AND THUS LEVIED PENALTY. 9. SIMILARLY, CLAIM OF DEPRECIATION HAVING BEEN WIT HDRAWN AFTER COMMENCEMENT OF PROBE BY THE ASSESSING OFFICER, THE ASSESSING OFFICER CONCLUDED THAT IT WAS A FIT CASE FOR LEVY OF PENALT Y. M/S. B.R. TV 4 10. ON AN APPEAL FILED BY THE ASSESSEE LEARNED CIT( A) AFFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER ON AFOREMENT IONED ISSUES. FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 11. LEARNED COUNSEL FOR THE ASSESSEE FILED A PAPER BOOK CONSISTING OF 25 PAGES. ADVERTING OUR ATTENTION TO THE EXPLANATIO N FURNISHED BEFORE THE ASSESSING OFFICER, IT WAS SUBMITTED THAT THERE IS N O DISPUTE THAT IT IS NOT A LOAN BUT IT IS ONLY A LIABILITY ON ACCOUNT OF PUR CHASE OF CAR. PART PAYMENT OF PURCHASE PRICE WAS MADE THROUGH ICICI BA NK AND THE SAME HAVING NOT BEEN DISPUTED BY TAX AUTHORITIES, THE AS SESSING OFFICER WAS NOT JUSTIFIED IN TREATING THE IMPUGNED AMOUNT AS UN EXPLAINED CASH CREDIT. IT WAS ALSO CONTENDED THAT INSTALLMENTS PAI D TO ICICI BANK WAS ACCEPTED BY THE DEPARTMENT AND MERELY BECAUSE ICICI BANK COULD NOT FURNISH THE PAPERS RELATING TO PURCHASE OF CAR, SIN CE THE SAME WERE NOT TRACEABLE FROM ICICI BANK, EXPLANATION OF THE ASSES SEE CANNOT BE SAID TO BE FALSE AND THUS IT WAS NOT A CASE OF CONCEALMENT OF INCOME. 12. SIMILARLY WITH REGARD TO REVISED CLAIM OF DEPRE CIATION IT WAS CONTENDED THAT THE ASSESSING OFFICER MERELY ASKED F OR THE BILLS FOR PURCHASE OF STUDIO EQUIPMENT AND NO FURTHER INQUIRY WAS MADE. OUT OF THE TOTAL AMOUNT OF ` 19,78,357/- REFERABLE TO THE COST OF STUDIO EQUIPMENT ASSESSEE HAD VOLUNTARILY WITHDRAWN THE C LAIM OF DEPRECIATION IN RESPECT OF STUDIO EQUIPMENT WORTH ` 11,00,000/- AND THUS IT IS NOT A FIT CASE FOR LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. LEARNED COUNSEL FOR THE ASSESSEE FORCEFULLY SUBMITTED THAT THE MACHINER Y WAS VERY MUCH IN EXISTENCE AND NO MATERIAL WHATSOEVER WAS GATHERED B Y THE ASSESSING OFFICER WITH REGARD TO NON-USE OF THE MACHINERY IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION AND , IT WAS A BONAFIDE MISTAKE ON THE PART OF THE ASSESSEE TO CLAIM DEPREC IATION ON THE ASSET WHICH WAS NOT USED. THUS PENALTY U/S. 271(1)(C) CAN NOT BE LEVIED. 13. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESEN TATIVE STRONGLY RELIED UPON THE ORDERS PASSED BY THE TAX AUTHORITIE S. HE CONTENDED THAT THE BOOKS WERE AUDITED U/S. 44AB OF THE ACT AND IN SUCH AUDITED BOOKS THERE CANNOT BE ANY WRONG CLAIM OF DEPRECIATION OR WRONG CLASSIFICATION OF THE SUM OF RS. 5,50,000/-. IN OTHER WORDS, IN T HE BOOKS THE ASSESSEE M/S. B.R. TV 5 HAD DECLARED THE SAME AS LOAN WHEREAS AT A LATER ST AGE IT IS SOUGHT TO BE CLAIMED THAT IT WAS A LIABILITY BUT SUCH CLAIM WAS NOT SUPPORTED BY ANY EVIDENCE. HE HAS ALSO RELIED UPON THE ORDER OF ITAT B BENCH MUMBAI (ITA NO. 465/MUM/07 DATED 10.12.2008) IN SUPPORT OF HIS CONTENTION THAT EXCEPT MAKING ASSERTION NO PROOF WHATSOEVER WA S FURNISHED EVEN BEFORE THE TRIBUNAL IN SUPPORT OF HIS CONTENTION TH AT IT WAS AN AMOUNT PAYABLE TO NAYAMMA R. MULLA TOWARDS PURCHASE OF CAR . SIMILARLY ONUS IS ON THE ASSESSEE TO MAKE A PROPER DEDUCTION AFTER TH OROUGHLY VERIFYING THE RECORD AND IN THE INSTANT CASE BOOKS WERE THORO UGHLY AUDITED AND THE ASSESSEE CLAIMED DEDUCTION ON THE ASSET WORTH ` 11,00,000/- AND THE RETURN WAS PROCESSED U/S. 143(1). EVEN WHEN THE CAS E WAS TAKEN UP FOR SCRUTINY, BY ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT ON 25.10.2010, THE ASSESSEE DID NOT COME FORWARD TO MAKE A CORRECT CLA IM AND THUS ASSESSEE IS BARRED FROM FILING A REVISED STATEMENT AFTER STI PULATED PERIOD. IT WAS ONLY DURING THE COURSE OF INQUIRY I.E. WHEN THE ASS ESSEE WAS ASKED TO SUBMIT COPIES OF BILLS IN SUPPORT OF ADDITION TO FI XED ASSETS THE ASSESSEE HAD NO OTHER ALTERNATIVE BUT TO REVISE THE CLAIM AN D THUS IT IS A CLEAR CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME AND PROVISIONS OF SECTION 271(1)(C) ARE ATTRACTED UNDER THE CIRCUMSTANCES. IT WAS ALSO CONTENDED THAT IF THERE IS A VARIATION BETWEEN INCOME RETURNE D AND INCOME ASSESSED, EXPLANATION TO SECTION 271(1)(C) GETS ATT RACTED IN WHICH EVENT THE ONUS IS UPON THE ASSESSEE TO PROVE THAT THE DEC LARATION OF INCOME ON 1.12.2003 WAS VALID AND PROPER AND HAS TO FURNISH B ONAFIDE EXPLANATION VIS--VIS ADDITIONS/DISALLOWANCES MADE. THUS, HE ST RONGLY SUPPORTED THE ORDERS PASSED BY THE TAX AUTHORITIES. 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE RECORD. IN THE QUANTUM PROCEEDINGS THE ITAT B BENCH MUMBAI (SUPRA) UPHELD THE ADDITION OF ` 5,50,000/- BY OBSERVING AS UNDER :- THE ASSESSING OFFICER NOTED IN PARA THREE OF THE A SSESSMENT ORDER THAT THE ASSESSEE FAILED TO ESTABLISH WITH DOCUMENT ARY EVIDENCE THE FACTUAM OF PURCHASE OF CAR. NO CONFIRMATION WAS FILED TO SUBSTANTIATE THE ADVANCE STANDING, IN THE NAME OF T HE SAID PARTY. ACCORDINGLY, THE ASSESSING OFFICER MADE THE ADDITIO N. THE CIT(A), CONFIRMED THE ADDITION ON THE GROUND OF NON-FURNISH ING OF ANY EVIDENCE BEFORE HIM. IN THE COURSE OF PRESENT APPEL LATE PROCEEDINGS, THE ASSESSEE FAILED TO FILE ANY EVIDEN CE, ON THE ISSUE M/S. B.R. TV 6 IN QUESTION. IN VIEW OF THIS, THE FINDINGS OF LEARN ED CIT(A) ARE CONFIRMED, AS THE DELETION CAN BE MADE ONLY ON THE BASIS OF CORROBORATIVE EVIDENCES AND NOT ON THE BASIS OF BAR E ASSERTIONS, AS MADE BY THE ASSESSEE. 15. EVEN AT THIS STAGE THE ASSESSEE COULD NOT FURNI SH ANY DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CLAIM THAT I T WAS NOT AN AMOUNT ADVANCED BY NAYAMMA R. MULLA BUT IT WAS AN AMOUNT P AYABLE TOWARDS PURCHASE OF CAR. IF THE CAR IS PURCHASED BY TAKING FINANCE FROM ICICI BANK, TILL THE ENTIRE LOAN IS WIPED OUT WRITTEN AGR EEMENT AND OTHER PAPERS ARE LEGALLY BOUND TO BE AVAILABLE WITH THE B ANK AND IT WOULD HAVE BEEN POSSIBLE TO OBTAIN THE DOCUMENTS FROM THE BANK . EVEN IF THERE IS A DIFFICULTY WITH REGARD TO OBTAINING RECORDS FROM TH E BANK THE ASSESSEE COULD HAVE EASILY OBTAINED CONFIRMATION LETTER FROM NAYAMMA R. MULLA. NO SUCH CORROBORATIVE EVIDENCE WAS PLACED ON RECORD . IT IS A WELL SETTLED PROPOSITION OF LAW THAT MERE FURNISHING OF EXPLANAT ION IS NOT SUFFICIENT BUT IT HAS TO BE SUBSTANTIATED WITH EVIDENCE. IN TH E ABSENCE OF SUBSTANTIATING EXPLANATION WITH EVIDENCE, THE ASSES SING OFFICER WAS JUSTIFIED, IN THE CIRCUMSTANCES OF THE CASE, IN COM ING TO THE CONCLUSION THAT THE EXPLANATION IS FALSE AND THE ASSESSEE INTR ODUCED A SUM OF ` 5,50,000/- WHICH HAS TO BE TREATED AS UNEXPLAINED C ASH CREDIT. ADDITION MADE U/S. 68, UNDER THE DEEMING PROVISIONS, HAS TO BE TAKEN TO ITS LOGICAL CONCLUSIONS BY WHICH ONE HAS TO ASSUME THAT THE ASSESSEE FURNISHED INACCURATE PARTICULARS AND CONCEALED INCO ME TO THE EXTENT OF ` 5,50,000/- WITHOUT ANY SATISFACTORY EXPLANATION. TH EREFORE PENALTY LEVIED BY THE ASSESSING OFFICER VIS--VIS ADDITION OF ` 5,50,000/- IS JUSTIFIED. 16. COMING TO REVISED CLAIM OF DEPRECIATION, IT MAY BE NOTICED THAT THE ASSESSEE FILED RETURN OF INCOME ON 1.12.2003 AND TH E RETURN WAS ACCOMPANIED WITH AN AUDIT REPORT. TO RECTIFY A BONA FIDE MISTAKE, LEGISLATURE PROVIDED ONE YEAR TIME, U/S. 139(5) OF THE ACT, TO FILE REVISED RETURN. IN THE INSTANT CASE THE SAID PERIOD ENDS ON 31.3.2005. RETURN WAS ORIGINALLY PROCESSED U/S. 143(1) OF THE ACT ON 12.4.2004. BUT FOR THE FACT THAT THE CASE WAS TAKEN UP FOR SCRUTINY THE AS SESSEE WOULD NOT HAVE FILED A REVISED RETURN. IN FACT, DESPITE TAKING UP THE CASE FOR SCRUTINY, BY ISSUING NOTICE ON 25.10.2004, THE ASSESSEE DID NOT CHANGE ITS STAND WITH REGARD TO CLAIM OF DEPRECIATION AND IT IS ONLY WHEN THE ASSESSEE WAS M/S. B.R. TV 7 CALLED UPON TO FURNISH THE BILLS IN SUPPORT OF THE ADDITION TO FIXED ASSET, VIDE LETTER DATED 20.10.2005 THE ASSESSEE-FIRM HAD TO WITHDRAW ITS CLAIM OF DEPRECIATION ON THE STUDIO EQUIPMENT WORTH ` 11,00,000/-. THE FIRM WAS WELL AWARE OF THE FACT THAT THE SAID EQUIPMENT WAS NOT PUT TO USE IN THE YEAR UNDER CONSIDERATION. IN THE LETTER DATED 1 7.3.2008 THE ASSESSEE ADMITTED BEFORE THE ASSESSING OFFICER THAT THERE WE RE FLAWS IN THE EQUIPMENT AND AS SUCH IT COULD NOT BE USED FOR THE PURPOSE IT WAS PURCHASED. DESPITE THIS GLARING FACT THE ASSESSEE C HOSE TO CLAIM DEPRECIATION ON SUCH EQUIPMENT WHICH ITSELF INDICAT E THAT THE ASSESSEE- FIRM PURPOSELY FURNISHED INACCURATE PARTICULARS OF INCOME BY CLAIMING EXCESS DEPRECIATION. IT IS SOUGHT TO BE CONTENDED T HAT WITHDRAWAL OF CLAIM OF DEPRECATION WAS VOLUNTARY AND, BUT FOR THE VOL UNTARY ADMISSION, THE DEPARTMENT WOULD HAVE NEVER KNOWN THAT THE EQUIPMEN T HAD NOT BEEN USED. BUT THE FACT REMAINS THAT EVEN AFTER CONSIDER ABLE GAP, RECKONED FROM THE DATE OF FILING OF RETURN, THE ASSESSEE DID NOT CHOOSE TO REVISE ITS CLAIM OF DEPRECIATION. THERE IS SUFFICIENT GAP BETW EEN THE DATE OF PROCESSING OF RETURN AND THE DATE ON WHICH CASE WAS SELECTED FOR SCRUTINY. EVEN AFTER THE CASE WAS SELECTED FOR SCRU TINY THE ASSESSEE DID NOT REVISE ITS CLAIM. FOR THE NEXT YEAR I.E. FOR A. Y. 2004-05 THE ASSESSEE WOULD HAVE FILED ITS RETURN OF INCOME AND AT LEAST AT THAT POINT OF TIME EITHER THE ASSESSEE OR AUDITOR OR BOTH WOULD HAVE V ERIFIED THE CORRECTNESS OF THE CLAIM AND IT CANNOT BE ASSUMED THAT IT HAS E SCAPED THE ATTENTION OF THE PARTY EVEN AT THAT STAGE. SINCE THE ASSESSIN G OFFICER CALLED UPON THE ASSESSEE TO FURNISH SOME BILLS IN SUPPORT OF TH E ADDITION TO FIXED ASSET, ASSESSEE APPEARS TO HAVE REALISED THAT ANY F URTHER PROBE WOULD REVEAL THE INCORRECTNESS OF THE CLAIM OF DEPRECIATI ON AND AT THAT STAGE THE ASSESSEE FILED THE SO CALLED REVISED RETURN WHICH C ANNOT BE CONSIDERED AS REVISED RETURN U/S. 139(5) OF THE ACT, AS HELD BY H ON'BLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD, 284 ITR 323. EVEN IF THE OFFER IS NOT CONSIDERED AS A REVISED RETURN IT IS THE DUTY OF TH E ASSESSING OFFICER TO TAX THE CORRECT INCOME AND ACCORDINGLY CLAIM OF DEP RECIATION ON STUDIO EQUIPMENT WORTH ` 11,00,000/- WAS DISALLOWED BY THE ASSESSING OFFICE R. THUS THE ISSUE BEFORE US IS AS TO WHETHER IT CAN BE CONSIDERED AS VOLUNTARY DISCLOSURE PRIOR TO DETECTION AND WHETH ER THE ASSESSEE WAS M/S. B.R. TV 8 UNDER BONAFIDE IMPRESSION THAT THE ORIGINAL CLAIM W AS IN ACCORDANCE WITH LAW. 17. IN OUR CONSIDERED OPINION IT CANNOT BE TERMED A S VOLUNTARY DISCLOSURE AND EVEN IF IT IS DISCLOSED VOLUNTARILY , IT CAN NOT BE TERMED AS A REVISED RETURN WITHIN THE MEANING OF SECTION 139( 5) OF THE ACT; IT MAY BE REITERATED THAT THE ASSESSEE HAS FURNISHED INACC URATE PARTICULARS OF INCOME BY CLAIMING EXCESS DEPRECATION IN THE ORIGI NAL RETURN. IN THE CASE OF SUJATHA RUBBERS, 194 ITR 355 HON'BLE ANDHRA PRADESH HIGH COURT HAD AN OCCASION TO CONSIDER THE EXPRESSION V OLUNTARY DISCLOSURE OF INCOME, WITH REFERENCE TO PROVISIONS OF SECTION 27 3A OF THE ACT, WHEREIN THE COURT HELD THAT IF THERE IS A FEAR/PROBABILITY OF EXPOSURE TO PENAL ACTION WHICH PROMPTED THE ASSESSEE TO FILE REVISED RETURN, IT CANNOT BE CONSTRUED AS A VOLUNTARY DISCLOSURE. 18. SIMILARLY IN THE CASE OF CIT VS. K. MAHIM, 149 ITR 737 HON'BLE KERALA HIGH COURT ALSO HELD THAT THOUGH THE DIFFICU LTY IN PREPARATION OF RETURNS CANNOT BE UNDERRATED, INCOME TAX ACT ENVISA GED THE SITUATION TO RELIEVE HONEST AND BONAFIDE ASSESSEES TO MEND MATTE RS AND RECTIFY MISTAKES, BY PROVIDING FOR FILING A REVISED RETURN U/S. 139(5) OF ACT. THUS, ANY OMISSION OR A WRONG STATEMENT IN THE RETURN WOU LD PRIMA-FACIE ATTRACT PROVISIONS OF SECTION 271(1)(C) OF THE ACT AND FILING OF A REVISED RETURN VOLUNTARILY, BEYOND THE STIPULATED PERIOD, W HEN THE ASSESSEE KNEW THAT THE DEPARTMENT WAS CONDUCTING INVESTIGATIONS, WOULD NOT EXONERATE THE ASSESSEE FROM THE LIABILITY TO PENALTY 271(1)(C ) OF THE ACT. 19. FACTS ARE STATED IN DETAIL WHICH CLEARLY INDICA TE THAT THE ASSESSEE SOUGHT TO WITHDRAW THE CLAIM OF DEPRECIATION ON STU DIO EQUIPMENT WORTH ` 11,00,000/- ONLY UPON COMMENCEMENT OF INQUIRY BY A SKING THE ASSESSEE TO FURNISH BILLS AND THUS IT IS A FIT CASE FOR LEVY OF PENALTY. WE THEREFORE AFFIRM THE ORDER OF LEARNED CIT(A) AND DI SMISS THE APPEAL FILED BY THE ASSESSEE. M/S. B.R. TV 9 PRONOUNCED ACCORDINGLY ON 18 TH DAY OF MAY, 2011. SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER SD/- (D. MANMOHAN) VICE-PRESIDENT DATED : 18 TH MAY, 2011. COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR CONCERNED, MUMBAI 6. GUARD FILE BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI PS