SHRI VIKRAM MAKHARIYA, Nagda V. THE ITO 2(2), Ujjain

ITA 245/IND/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0388 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-06-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 13-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Loose papers; Revised return
• Section: 69C; 133A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO.245/IND/2015 A.Y. : 2007-08 SHRI VIKRAM MAKHARIYA, PROP. ITO, 2(2), M/S. NEW RAJASTHAN TRANSPORT, JIWAJI NAGAR, NAGDA VS. UJJAIN APPELLANT RESPONDENT PAN NO. AIWPM6893R APPELLANT BY : SHRI RAJESH MEHTA, C. A. RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 10 . 0 6 .201 5 DATE OF PRONOUNCEMENT : 30 . 0 7 .201 5 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), UJJAIN, DATED 06.01.2015 FOR THE ASSESS MENT YEAR 2007-08. 2. THE SHORT FACTS OF THE CASE ARE AS UNDER. 3. THE ASSESSEE IS HAVING INCOME FROM TRANSPORT BUSINESS AND TRANSPORT COMMISSION. THE RETURN OF IN COME DECLARING TOTAL INCOME OF RS. 2,30,780/- HAS BEEN F ILED ON 31.10.2007. A SURVEY U/S 133A HAS BEEN CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 28.03.2007. DU RING THE COURSE OF SURVEY, THE ASSESSEE HAS MADE DISCLOSURE OF RS. 10 LACS ON THE BASIS OF LOOSE PAPERS FOUND DURING THE COURSE OF SURVEY. WHILE FILING THE RETURN OF APPEAL, THE ASSE SSEE HAS NOT DISCLOSED THE INCOME OF RS. 10,00,000/- AS DECLARED DURING THE COURSE OF SURVEY. THE AO MADE THE INQUIRY DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS AND ASSESSEE ACCEP TED THE DISCLOSURE OF RS. 10 LACS AS MADE DURING THE COURSE OF SURVEY AND REVISED THE RETURN OFFERING RS. 10 LACS AS ADDI TIONAL -: 3: - 3 INCOME. ON THIS ADDITIONAL INCOME OF RS. 10,00,000/ -, THE AO IMPOSED THE PENALTY OF RS. 3,42,000/- U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. 4. THE MATTER CARRIED TO LD. CIT(A). THE LD. CIT(A) HA S CONFIRMED THE SAME. THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE ASSESSEE HAS FILED THE WRITTEN SUBMISSION, WHIC H READS AS UNDER :- SUBMISSION THE ASSESSEE HAD FILED RETURN OF INCOME FOR A.Y 200 7-08 ON 31- 10-2007 DECLARING TOTAL INCOME OF RS.230780/-.THE A SSESSEE DERIVED INCOME FROM TRANSPORT BUSINESS & TRANSPORT COMMISSI ON. A SURVEY U/S. 133A WAS CARRIED OUT AT BUSINESS PREM ISES OF ASSESSEE ON 28-03-2007 WHEREIN THE FATHER OF THE AS SESSEE HAD SURRENDERED RS. 10,00,000/- TO PURCHASE PEACE OF MI ND. THE SURRENDER WAS MADE BY THE FATHER OF THE ASSESSEE UNDER PRESSU RE AND WITHOUT ASSESSEES KNOWLEDGE. THERE WAS NO CASH SURRENDER O N SPOT AND SURRENDER WAS MADE ONLY ON PAPERS. IF IT HAD BEEN T HE CASE THAT -: 4: - 4 ASSESSEE HAD CONCEALED INCOME THEN THERE WOULD HAVE BEEN SURRENDER ON SPOT. THE LD. ASSESSING OFFICER MADE AD HOC ADDITIONS & E RRED IN IMPOSING PENALTY U/S.271(1)(C) OF IT ACT 1961 OF RS .3,42,000/- WITHOUT LOOKING AT THE FACTS OF THE CASE . THAT THE BOOK RESULTS WERE ACCEPTED BY THE LD. ASSE SSING OFFICER AND NO SPECIFIC DEFECT WAS POINTED OUT BY T HE LD. ASSESSING OFFICER. IN PAGE NO.3&4 OF THE ASSESSING OFFICERS ORDER, NOWHERE IT HAS BEEN MENTIONED THAT THE BOOKS OF ACCOUNTS WERE IMPROPER. NEITHER THE BOOKS OF ACCOUNTS WERE REJECTED U/S.145 OF THE IT ACT 1961 NOR THE LD ASSESSING OFFICER HAS PASSED ORDER U/S.148. AS THERE WAS NO IRREGULARITY IN THE BOOKS OF ACCOUNTS, THUS IT IS CLEAR THAT THERE WAS NO CONCEALMENT. THE ASSESSEE CARRIED TRANSPORT BUSINESS AND NOTHING WAS CONCEALED. CONCEALMENT IS ALWAYS INVOLVED IN COMMOD ITY OR MANUFACTURING SECTORS AND NOT IN THE BUSINESS LINE WHERE THE ASSESSEE IS INVOLVED. ALSO THERE WERE NO CREDITORS AND DEBTO RS INVOLVED IN ASSESSEES BUSINESS. SECTION 271(L)(C) OF THE IT ACT 1961:- -: 5: - 5 FOR EVERY PENALTY U/S 271(1 )(C) OF THE IT ACT 1961 , ONE OF THE TWO CONDITIONS MUST BE SATISFIED:- A) THERE MUST BE CONCEALMENT OF INCOME; OR B) THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICU LARS OF INCOME. IN THE CASE ON HAND NEITHER THE ASSESSEE HAS CONCEA LED INCOME NOR FURNISHED ANY INACCURATE PARTICULARS OF INCOME. NO CONCEALMENT OF INCOME:- THE ASSESSEE HAD SURRENDERED RS. 10,00,000/- WHICH WAS OFFERED FOR TAXATION ON ESTIMATE BASIS. AND THEREAFTER PAID 3 C HEQUES OF RS. 1,00,000/- EACH AS TAX ON THE SURRENDERED AMOUNT. T HUS VOLUNTARY SURRENDER OF AMOUNT BY THE ASSESSEE AND PAYMENT OF TAX THEREON IS A CLEAR EVIDENCE THAT ASSESSEE HAD NO INTENTION OF CO NCEALING INCOME. MOREOVER SURRENDER OF INCOME WAS MADE TO PURCHASE P EACE WITH DEPARTMENT. ALSO FURNISHING SURRENDERED INCOME IN REVISED COMPU TATION CANNOT TANTAMOUNT TO DETECTION OF CONCEALMENT OF INCOME U/ S.271(L)(C). NO INACCURATE PARTICULARS OF INCOME:- -: 6: - 6 THE ASSESSEE HAD FURNISHED CORRECT PARTICULARS OF I NCOME IN HIS RETURN OF INCOME. AND ALSO HE HAD FILED REVISED COMPUTATIO N TO DECLARE THE SURRENDERED AMOUNT OF RS. 10,00,000/- AND PAID TAX THEREON. AS PER LAW LEXICON, THE MEANING OF THE WORD 'PARTIC ULAR' IS A DETAIL OR DETAILS (IN PLURAL SENSE); THE DETAILS OF A CLAI M, OR THE SEPARATE ITEMS OF AN ACCOUNT. THEREFORE, THE WORD 'PARTICULA RS' USED IN THE SECTION 271(L)(C) WOULD EMBRACE THE MEANING OF THE DETAILS OF THE CLAIM MADE. IT IS AN ADMITTED POSITION IN THE PRESE NT CASE THAT NO INFORMATION GIVEN IN THE RETURN WAS FOUND TO BE INC ORRECT OR INACCURATE. IT IS NOT AS IF ANY STATEMENT MADE OR A NY DETAIL SUPPLIED WAS FOUND TO BE FACTUALLY INCORRECT. THEREFORE THE ASSESSEE CANNOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. IN THE CASE OF SARAN KUMAR GOEL V/S. ITO, ITAT DELHI BENCH G, ITA NO.4462/DEL./2009 IT WAS HELD THAT THE ASSESSEE SURRENDERED THE AMOUNT DURING SURVEY TO MAINTAIN PEACE & REFLECTED SURRENDERED AMOUNT IN REVISED COMPUTATION AND TAX WAS PAID THER EON .IN THE ABSENCE OF ANY CONCEALMENT OR FURNISHING OF INACCUR ATE PARTICULARS, WAS NO GROUND FOR LEVYING PENALTY. ALSO HONBLE SUPREME COURT IN THE CASE OF CIT VS. SURESH CHANDRA MITTAL 251 ITR 9 (SC) OBSERVED THAT WHERE ASSESSEE HAS SURRENDERED -: 7: - 7 THE INCOME AFTER PERSISTENCE QUERIES BY THE AO AND WHERE REVISED RETURN HAS BEEN REGULARIZED BY THE REVENUE, EXPLANA TION OF THE ASSESSEE THAT HE HAS DECLARED ADDITIONAL INCOME TO BUY PEACH OF MIND AND TO COME OUT OF WAXED LITIGATION COULD BE TREATE D AS BONA FIDE, ACCORDINGLY LEVY OF PENALTY UNDER S. 271(1 )(C) WAS HELD TO BE NOT JUSTIFIED. THAT THE LD ASSESSING OFFICER HAS NOT MENTIONED ANY WHERE IN THE ASSESSMENT ORDER THAT SURRENDERED AMOUNT OF RS. 10,00,000/- IS ASSESSEES CONCEALED INCOME. NO SUCH INSTANCE WAS POINTED OUT AT THE TIME OF SURVEY OR DURING ASSESSMENT PROCEEDINGS. AL SO NOTHING HAS BEEN MENTIONED AS REGARDS TO THE LOOSE PAPERS FOUND DURING SEARCH AND ALL THE LOOSE PAPERS WERE CONNECTED WITH THE BU SINESS. ALSO THE DECISION HAS BEEN IN THE FAVOUR OF ASSESSEE. IN THE CASE OF M/S.SUPERB ROYAL TRAVELS & TOURS PVT.LTD V/S. ITO-7(2)(4), MUM BAI( I.T.A. NO.4147/MUM/2012) WHERE IT WAS HELD THAT IT WAS NOT THE CASE WHERE AO INFERRED A FINDING, WHICH WOULD ATTRACT PENALTY PROCEEDINGS. ALSO THE SAME WAS HELD IN HERBANA INDUSTRIES LTD V/S.DCIT (ITAT MUMBAI), THAT WHEN NO CONCEALMENT WAS DETECTED BY AO, NO PEN ALTY COULD BE IMPOSED. -: 8: - 8 HENCE, PENALTY U/S.271(L)(C) OF RS.3,42,000/- IS IL LEGAL, ARBITRARY & WRONG. HENCE NEEDS TO BE DELETED. THAT THE ASSESSMENT ORDER IS ARBITRARY, ILLEGAL, U NLAWFUL, BAD IN LAW AND WITHOUT LOOKING AT THE FACTS OF THE CASE, H ENCE, LIABLE TO BE QUASHED. 6. THE LD. SENIOR D.R. RELIED UPON THE ORDER OF CIT(A ) AND HE HAS ALSO SUBMITTED THAT THE DECISION OF HON' BLE SUPREME COURT IN THE CASE OF MAK DATA PRIVATE LIMIT ED VS. CIT, 358 ITR 593, AND SUBMITTED THAT SURRENDER OF I NCOME IN ANY CASE WAS NOT VOLUNTARY IN THE SENSE THAT OFFER OF SURRENDER WAS MADE IN VIEW OF THE DETECTION BY THE ASSESSING OFFICER DURING THE COURSE OF SURVEY, THE ASSESSEE HAS DECLA RED ADDITIONAL INCOME AND WHILE FILING THE RETURN, THE ASSESSEE HAS NOT MADE FULL AND TRUE DISCLOSURE AND SURRENDERED T HE INCOME AFTER DETECTION BY THE ASSESSING OFFICER DURING THE COURSE OF SURVEY. IT IS THE STATUTORY DUTY OF THE ASSESSEE TO RECORD ALL TRANSACTIONS IN THE BOOKS OF ACCOUNT AND EXPLAIN TH E SOURCE OF THE PAYMENT MADE BY THE ASSESSEE AND DECLARE TRUE I NCOME OF RETURN FILED FROM YEAR TO YEAR. IN THIS CASE, THE A O HAS -: 9: - 9 SATISFIED THAT THE ASSESSEE HAS CONCEALED THE TRUE PARTICULARS OF INCOME AND LIABLE TO PENALTY U/S 271(1)(C) OF TH E INCOME-TAX ACT, 1961. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS CHALLENGED THE IMPOSITIO N OF PENALTY OF RS. 3,42,000/- U/S 271(1)(C) OF THE ACT. A SUR VEY U/S 133A HAS BEEN CARRIED OUT AT THE BUSINESS PREMISES OF TH E ASSESSEE ON 28.03.2007. DURING THE COURSE OF SURVEY, THE ASS ESSEE HAS MADE DISCLOSURE OF RS. 10 LACS ON THE BASIS OF LOOS E PAPERS FOUND DURING THE COURSE OF SURVEY. WHILE FILING THE RETURN, THE ASSESSEE HAS NOT DISCLOSED THE INCOME OF RS. 10 LAC S AS DISCLOSED DURING THE COURSE OF SURVEY. THE AO HAS M ADE ENQUIRY DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ACCEPTED THE DISCLOSURE AS MADE DURING THE COURSE O F SURVEY AND FILED THE REVISED INCOME TAX RETURN OF RS. 10 L ACS FILED. THE AO HAS ASSESSED THE INCOME ACCORDINGLY. NO ADDITION HAS BEEN MADE IN THE ASSESSMENT YEAR. HAD THE CASE NOT BEEN SCRUTINIZED U/S 143, THE SAME WOULD NOT HAVE BEEN P OINTED -: 10: - 10 OUT BY THE ASSESSING OFFICER DURING THE COURSE OF A SSESSMENT PROCEEDINGS. THE AMOUNT OF RS. 10 LACS SHOULD HAVE ESCAPED FROM TAXATION. 8. THE POSITION OF LAW REGARDING LEVY OF PENALTY U/S 271(1)(C) HAS UNDERGONE A SUBSTANTIAL CHANGE AFTER INSERTION OF EXPLANATION I TO SECTION 271(1)(C) WITH EFFECT FROM 01.04.1976. EXPLANATION 1 TO SECTION 271(1)(C) RAISES A PRESUMP TION THAT AS AND WHEN ANY AMOUNT IS ADDED OR DISALLOWED IN CO MPUTING THE TOTAL INCOME, THE SAME SHALL BE DEEMED OR REPRE SENT THE INCOME IN RESPECT OF WHICH THE PARTICULARS HAVE BEE N CONCEALED. FURTHER WITH EFFECT FROM 10.9.1986 AMEND MENT HAS BEEN MADE TO EXPLANATION 1(B) TO SECTION 271(1)(C), AFTER THIS AMENDMENT FURTHER ONUS HAS BEEN PLACED ON THE ASSES SEE TO PROVE THAT EXPLANATION FURNISHED BY HIM WAS BONA FI DE. THE POSITION NOW IS THAT UNLESS AND UNTIL THE ASSESSEE SUBSTANTIATES THE EXPLANATION AND PROVES THAT THE E XPLANATION WAS BONA FIDE, THE ADDITION MADE TO HIS INCOME SHAL L BE DEEMED TO REPRESENT THE CONCEALED INCOME. ON ANALYS IS OF PROVISIONS OF SECTION 271(1)(C), IT IS OBSERVED THA T EXPLANATION -: 11: - 11 1 TO SECTION 271(1)(C) PROVIDES THE SITUATION, WHER E NO EXPLANATION FOR THE FAILURE IS OFFERED BY THE ASSES SEE OR WHERE THE EXPLANATION THAT HAS BEEN OFFERED IS FOUND TO B E FALSE OR WHERE THE ASSESSEE IS NOT ABOUT TO SUBSTANTIATE THE EXPLANATION OFFERED BY HIM. IN ALL THE CASES, THE A MOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OF SUCH PERSONA SHALL BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH THE PARTICULARS HAVE BEEN CONCEALED. AS PER PROVISO TO THIS EXPLANATION, THE ONUS TO ESTABLISH THAT EXPLANATION OFFERED WAS BONA FIDE AND FACTS RELATING TO SAME AND MATERIAL T O THE COMPUTATION OF HIS INCOME EVEN DISCLOSED BY HIM WIL L BE ON THE PERSONS CHARGED FOR CONCEALMENT. 9. AS PER THE PROVISIONS 2 TO EXPLANATION 1(B) NOW T HE ENTIRE ONUS IS ON THE ASSESSEE TO NOT ONLY OFFER AN EXPLANATION BUT ALSO TO SUBSTANTIATE IT AND TO PROVE THAT THE P RESUMPTION WAS BONA FIDE. AT THE SAME TIME THE PRESUMPTION SO RAISED BY THE EXPLANATION 1 IS REBUTTABLE. THE EFFECT IS THAT UNLESS AND UNTIL REBUTS THE PRESUMPTION, HE WOULD BE LIABLE TO PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. IT IS NO W -: 12: - 12 ESTABLISHED LAW THAT PRESUMPTION WOULD NOT STAND RE BUTTED MERELY BY FURNISHING ANY GENERAL OR FANTASTIC OR FA NCIFUL OR UNREASONABLE EXPLANATION BY THE ASSESSEE, THE EXPLA NATION SHOULD BE BASED ON COGENT AND RELEVANT MATERIAL AND SHOULD BE ACCEPTED TO THE AUTHORITIES. IN THIS CONNECTION , REFERENCE MAY BE MADE TO THE DELHI HIGH COURTS DECISION IN T HE CASE OF CIT VS. GURBACHAN LAL REPORTED IN 250 ITR 157 (DELH I). 10. THE APEX COURT HAS APPROVED THE INTERPRETATION PLAC ED UPON THE EXPLANATION BY A FULL BENCH OF THE PUNJAB AND HARYANA HIGH COURT IN VISHWAKARMA INDUSTRIES VS. CI T, (1982) 135 ITR 652. SIMILAR VIEW HAS BEEN EXPRESSE D BY THE KERALA HIGH COURT IN THE CASE OF CIT VS. K.P. MADHUSUDAN REPORTED IN 246 ITR 218. THIS DECISION HAS BEEN AFFIRMED BY THE SUPREME COURT IN 251 ITR 99. AFFIRMING THE AFORESAID DECISION, THE HONBLE SUPREME COURT HAS FURTHER HEL D THAT AFTER INSERTION OF EXPLANATION ITS EARLIER DECISION IN THE CASE OF SIR SHADI LAI SUGAR AND GENERAL MILLS LTD. VS. CIT REPORTED IN 168 ITR 705 (SC) WAS NO LONGER APPLICABLE. THE KERA LA HIGH COURT AT PAGE 244 HAS OBSERVED AS UNDER:- -: 13: - 13 THE QUESTION OF ONUS IS OF PRIMARY AND ADDED IMPORTANCE IN LEGAL ACRIMONY. IN CIT VS. ANWAR ALI (1970)M 76 ITR 696, THE APEX COURT LAID DOWN THAT, BEFORE A PERSON COULD BE VISITED WITH A PENALTY FOR CONCEALMENT, ETC., THE REVENUE MUST PROVE THAT THE AMOUNT IN QUESTION WAS THE INCOME OF THE ASSESSEE AND THE HE HAD CONCEALED IT WITH A MOTIVE. IT WAS FURTHER HELD THAT PENALTY COULD NOT BE IMPOSED MERELY BECAUSE ANY EXPLANATION GIVEN BY THE ASSESSEE IN REGARD TO THE ITEMS IN QUESTION WAS NOT BELIEVED TO THE TRUE. THE POSITION OF LAW ON OR AFT ER APRIL 1, 1976, IT THAT WHERE IN RESPECT OF ANY ITEM OF CREDIT, (A) THE ASSESSEE FAILS TO OFFER A EXPLANATI ON OR (B) THE ASSESSEE OFFERS AN EXPLANATION WHICH THE TAXING OFFICER CONSIDERS TO THE FALSE, OR (C) THE ASSESSEE OFFERS AN EXPLANATION BUT NO MATERIAL OR EVIDENCE TO SUBSTANTIATE IT, HE SHALL BE DEEMED TO HAVE CONCEALED SUCH INCOME WITHIN THE MEANING OF SECTION271 (L)(C). WHAT SECTION 68, 69, 69A, 69B AN D -: 14: - 14 69C DEEM FOR THE PURPOSE OF ASSESSMENT WAS INJECTED FOR THE PURPOSE OF PENALTY BY OPERATION OF A DEEMING PROVISO. A PROVISO WAS ADDED TO THE NEW EXPLANATION. IT CONCERNS CASES WHERE THE ASSESSEE OFFERS AN EXPLANATION WHICH HE IS NOT ABLE SUBSTANTIATE. CONSEQUENTIALLY, THE PROVISIONS ARE INTENDED TO SAVE SUCH AMOUNT FROM IMPOSITION OF PENALTY ALTHOUGH THE SAME HAD BEEN ADDED TO THE ASSESSEES INCOME IN THE ASSESSMENT. IF THE ASSESSEES EXPLANATION IS FOUND TO BONA-FIDE AND AL L THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM. THE VIEWS SIMILAR TO THE ABOVE DECISION OF DELHI AN D KERALA HIGH COURTS WERE EXPRESSED BY THE ALLAHABAD HIGH CO URT IN THE CASE OF SUSHIL KUMAR SHARAD KUMAR 232 ITR 588 (ALLD.). SIMILARLY, THE DELHI HIGH COURT IN THE CASE OF CIT VS SOHAN SINGH 254 ITR 170 HAS HELD THAT FOR THE PURPOSE OF PENALTY, MATTER HAS TO BE EXAMINED IN THE BACKGROUN D OF -: 15: - 15 EXPLANATION TO SECTION 271(1 )(C). IT HAS ALSO BEEN HELD THAT EVIDENCE RECORDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THROUGH NOT CONCLUSIVE, ARE NOT TOTALL Y IRRELEVANT. THEY COULD BE TAKEN NOTE OF. ACCORDING TO THE HIGH COURT WHAT WAS REQUIRED WAS THAT THE ASSESSEE MUST OFFER AN EX PLANATION WHICH, IF FOUND TO BE UNTENABLE OR UNACCEPTABLE, TH EN THE PENALTY CAN BE LEVIED UNDER SECTION 271(L)(C) OF TH E INCOME-TAX ACT, 1961. IT IS AN OBLIGATORY DUTY CAST UPON A PERSON FILING THE RETURN OF INCOME TO DISCLOSE ALL HIS INCOME DERIVED FROM ANY SOURCE UNDER VARIOUS HEADS AND INDICATE THE INCOME UNDER E ACH HEAD, WHICH IS CHARGEABLE TO INCOME-TAX, AFTER MAKI NG THE PERMISSIBLE DEDUCTIONS. DISCLOSURE OF INCOME WOULD BE DISCLOSURE OF PARTICULARS OF INCOME, WHICH A PERSON IS DUTY BOUND TO DISCLOSE IN FULFILLMENT OF HIS STATUTORY O BLIGATIONS TO PAY TAX ON THE INCOME CHARGEABLE TO TAX. AFTER THE RETURN IS FILED UNDER SECTION 139(1), THE ASSESSMENT OF TAX I S TO BE MADE AND FOR THE PURPOSE OF MAKING AN ASSESSMENT UNDER T HE ACT, THE 1TO MAKES AN ENQUIRY CONTEMPLATED BY SECTION 14 2, UNDER WHICH NOTICE IS ISSUED ON THE PERSON WHO HAS MADE THE -: 16: - 16 RETURN TO PRODUCE ACCOUNTS, DOCUMENTS OR FURNISH VE RIFIED INFORMATION IN WRITING INCLUDING STATEMENT OF ALL A SSETS, ETC. HOWEVER, WHERE THE AO IS SATISFIED THAT THE RETURN IS CORRECT AND COMPLETE, AS WERE THE WORDINGS OF SECTION 143(1 ) AT THE RELEVANT TIME, HE HAS TO ASSESS THE TOTAL INCOME WI THOUT REQUIRING THE PRESENCE OF THE ASSESSEE OR PRODUCTIO N BY HIM OF ANY EVIDENCE THAT THE RETURN IS CORRECT AND COMPLET E, HE IS REQUIRED TO ISSUE NOTICE ENABLING THE ASSESSEE TO P RODUCE EVIDENCE ON WHICH HE MAY RELY IN SUPPORT OF THE RET URN. THE TOTAL INCOME IN SUCH CASES OF REGULAR ASSESSMENT IS , ASSESSED AFTER HEARING THE EVIDENCE ADDUCED AND CONSIDERING ALL MATERIAL GATHERED BY THE AO AS PROVIDED IN SECTION 143(3). IT, THEREFORE, FOLLOWS THAT IN THE ASSESSMENT PROCEEDIN GS UNDER SECTION 143, THE AO CAN FIND OUT WHETHER THE RETURN OF INCOME IS CORRECT AND COMPLETE. IF HE HOLDS THAT THE RETUR N OF INCOME IS NOT CORRECT OR THAT IT IS NOT COMPLETE IN RESPEC T OF THE PARTICULARS OF INCOME WHICH ARE REQUIRED TO BE STAT ED IN THE RETURN, HE WILL REACH THE CORRECT FIGURE OF TOTAL I NCOME AND DETERMINE THE SUM PAYABLE BY THE ASSESSEE OR REFUND ABLE ON THE BASIS OF SUCH ASSESSMENT. IF THE INCOME CHARGEA BLE TO TAX -: 17: - 17 HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, BY REASON OF OMISSION OR FAILURE OF THE ASSESSEE TO DISCLOSE FUL LY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, RE ASSESSMENT PROCEEDING CAN BE INITIATED AS PROVIDED UNDER SECTI ON 147. THIS AGAIN SHOWS THAT FULL AND TRUE DISCLOSURE OF I NCOME IS PRIMARY OBLIGATION OF THE ASSESSEE. IF A PERSON OB LIGED TO FURNISH THE PARTICULARS OF HIS INCOME OMITS TO FURN ISH THEM, HE THEREBY CONCEALS THE PARTICULARS. THE CONCEALMENT M AY TAKE VARIOUS FORMS. A GLARING ILLUSTRATION OF CONCEALMENT WOULD BE WHERE THE ASSESSEE DOES NOT DISCLOSE OR FULLY DISCL OSE IN THE RETURN THE INCOME DERIVED BY HIM WHICH WOULD FALL U NDER A PARTICULAR HEAD, E.G., INCOME FROM OTHER SOURCES, W HILE DISCLOSING HIS INCOME FALLING UNDER OTHER HEADS OF INCOME PRESCRIBED BY SECTION 14. TO THE EXTENT HE DOES NOT DISCLOSE THAT INCOME; HE CONCEALS THE PARTICULARS OF INCOME. THE OBLIGATION IS NOT ONLY TO DISCLOSE PARTICULARS OF I NCOME BUT TO DISCLOSE THEM CORRECTLY AND COMPLETELY. IF WHILE DI SCLOSING THE PARTICULARS OF INCOME IN THE RETURN HE PUTS THEM UN DER A WRONG HEAD, HE CAN BE SAID TO BE FURNISHING INACCUR ATE PARTICULARS OF INCOME. THE PARTICULARS OF INCOME CA N BE MADE -: 18: - 18 INACCURATE IN A VARIETY OF WAYS, A GLARING ILLUSTRA TION OF WHICH WOULD BE WHERE THE ASSESSEE WHILE STATING THE INCOM E UNDER A PARTICULAR HEAD, WORKS OUT THE INCOME CHARGEABLE TO TAX AFTER MAKING DEDUCTIONS WHICH ARE FALSELY MADE. SUCH A PR OCESS WOULD MAKE THE PARTICULARS OF INCOME INACCURATE. IN ALL SUCH CASES, WHETHER THE INCOME IS NOT DISCLOSED AGAINST THE CONSTITUENT ITEM OF THE RETURN IN WHICH IT FALLS OR IS PARTLY NOT DISCLOSED, OR THE PARTICULARS OF INCOME GIVEN IN TH E RETURN ARE INCORRECTLY STATED BY ANY MACHINATION, THE IMPACT I S BOUND TO BE ON THE FIGURE OF GROSS TOTAL INCOME TO BE MENTIO NED UNDER VARIOUS HEADS OF INCOME AND ALSO ON THE TOTAL INCOM E CHARGEABLE TO TAX. IN FACT, REDUCING THE FIGURE OF INCOME THAT WOULD BE CHARGEABLE TO TAX WOULD BE FOR THE PURPOSE OF CONCEALMENT OF PARTICULARS OF INCOME OR GIVING INAC CURATE PARTICULARS OF INCOME. THE EXPRESSION PARTICULARS O F INCOME WOULD HAVE RELEVANCE TO ALL THE PARTICULARS OF INCO ME WHICH THE ASSESSEE IS REQUIRED TO GIVE IN HIS RETURN FULL Y AND TRULY, INCLUDING THE PARTICULARS OF INCOME CHARGEABLE TO T AX UNDER VARIOUS HEADS AND THE TOTAL INCOME. THEREFORE, ANY CONCEALMENT OR INACCURACY IN THE PARTICULARS OF INC OME IN THE -: 19: - 19 RETURN OCCURRING AT ANY STAGE UP TO AND INCLUSIVE O F THE ULTIMATE STAGE OF WORKING OUT OF TOTAL INCOME, WOUL D ATTRACT THE PENALTY PROVISION OF SECTION 271(L)(C) OF THE A CT. EVERY FIGURE IN THE RETURN WHICH IS SET OPPOSITE TO THE I TEM OF INCOME IS A PARTICULAR OF INCOME, WHETHER THE FIGURE IS ON E WHICH IS STATED INDEPENDENTLY OF ANYTHING ELSE THAT APPEARS IN THE RETURN OR THE DOCUMENTS ACCOMPANYING IT OR WHETHER IT IS SOMETHING DERIVED FROM OTHER FIGURES ELSEWHERE STAT ED IN SUCH RETURN OR DOCUMENTS. FALSE RESULT MAY BE PRODUCED B Y THE FALSITY OF ONE OR MORE OF THE CONSTITUENT ITEMS IN THE RETURN. THE WORDS INACCURATE PARTICULARS WOULD COVER FALSIT Y IN THE FINAL FIGURE AS ALSO THE CONSTITUENT ELEMENTS OR IT EMS. THEY SIMPLY WOULD MEAN INACCURATE IN SOME SPECIFIC OR DE FINITE RESPECT WHETHER IN THE CONSTITUENT OR SUBORDINATE I TEMS OF INCOME OR THE END RESULT. IN THE CASE OF MAK DATA (P) LTD. V. CIT-II (2013) 3 8 TAXMANN.COM 448 (SC) IT WAS HELD THAT , VOLUNTARY DISCLOSURE DOES NOT RELEASE ASSESSEE FROM MISCHIEF OF PENAL PR OCEEDINGS UNDER SECTION 271(1 )(C) IN TERMS OF SECTION 271(1 )(C), ASSESSING OFFICER HAS TO SATISFY WHETHER PENALTY PROCEEDINGS BE INITIATED -: 20: - 20 OR NOT DURING COURSE OF ASSESSMENT PROCEEDINGS AND ASSESSING OFFICER IS NOT REQUIRED TO RECORD HIS SATISFACTION IN A PARTICULAR MANNER OR REDUCE IT INTO WRITING 11. WE FIND THAT THE CASE OF THE ASSESSEE IS COMPLETELY COVERED BY THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF MAK DATA VS. CIT, (SUPRA). WE FIND THAT IN THIS CASE, THE SURRENDER OF INCOME WAS NOT VOLUNTARY IN THE SENSE THAT OFFER OF SURRENDER WAS MADE IN VIEW OF DETECTION BY THE A SSESSING OFFICER DURING THE SEARCH CONDUCTED. IF THE ASSESSE E WANTED TO DECLARE HIS ADDITIONAL INCOME, THE ASSESSEE SHOULD HAVE INCLUDED THIS RS. 10 LACS IN HIS RETURN OF INCOME. THE ASSESSEE SHOULD HAVE DECLARED THIS INCOME. DURING THE ASSESS MENT PROCEEDINGS, THE ASSESSEE HAS SURRENDERED THIS INCO ME. THEREFORE, IT IS CLEAR THAT THE ASSESSEE HAS NO INT ENTION TO DECLARE ITS TRUE INCOME. IT IS THE DUTY OF THE ASS ESSEE TO RECORD ALL HIS DECLARED TRUE INCOME IN THE RETURN OF INCOM E FILED BY THE ASSESSEE. WE FIND THAT THE PENALTY HAS BEEN RIG HTLY IMPOSED BY THE ASSESSING OFFICER AND IN VIEW OF THE DECISION OF -: 21: - 21 HON'BLE SUPREME COURT IN THE CASE OF MAK DATA (SUPR A), WE CONFIRM THE PENALTY. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 30 TH JULY, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 30 TH JULY, 2015. CPU* 8.22