M/s Megapower Transmission P. Ltd., Indore V. The ACIT, 3(1), Indore

ITA 275/IND/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1503 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 08-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S DESHPANDE
• Keywords: Reasonable cause; Revised return; Bonafide mistake
• Section: 133A; 131; 148; 144; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.275/IND/2012 A.Y.2006-07 M/S MEGAPOWER TRANSMISSION P. LTD. INDORE PAN AAFCM 6891F :: APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX 3(1), INDORE :: RESPONDENT APPELLANT BY SHRI S.S. DESHPANDE RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 11.02.2013 DATE OF PRONOUNCEMENT 13.02.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 9 TH MARCH, 2012 PASSED BY THE LEARNED FIRST APPELLATE A UTHORITY, INDORE ON THE GROUND THAT THE FIRST APPELLATE AUTHO RITY ERRED IN UPHOLDING THE LEVY OF PENALTY OF RS.14,40,651/- IMP OSED U/S271(1)(C) OF THE ACT. 2 2. DURING HEARING, WE HAVE HEARD SHRI S.S. DESHPAND E, LEARNED COUNSEL FOR THE ASSESSEE AND SHRI R.A. VERM A, LEARNED SENIOR DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE ASSESSEE OFFERED THE PROFIT AT THE RATE OF 8% OF THE CONTRACT RECEIPTS AND THE SAME WAS ACCEPTED BY THE DEPARTMENT, THEREFORE, BEFORE ISSUANCE OF NOTICE U/S 148, THE R ETURN WAS FILED ON 3.12.2008, THEREFORE, THERE IS NEITHER CONCEALME NT NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME, CON SEQUENTLY, THE PENALTY U/S 271(1)(C) IS NOT LEVIABLE. THE LEARNED COUNSEL RELIED UPON THE DECISION IN THE CASE OF DCIT VS. SATISH GU PTA; 42 SOT 48 (AHD), THE DECISION FROM HONBLE JURISDICTIONAL HIGH COURT IN CIT VS. SHYAMLAL SONI; 276 ITR 156 (MP), CIT VS. S. V. ELECTRICALS; 274 ITR 334 (MP); CIT VS. M. PACHAMUTHU; 295 ITR 50 2 (MAD.); SMT. SARITA ARAWAL VS. ITO; 17 ITJ 193 (INDORE), AS HOK KUMAR JAIN (HUF) VS. ACIT; ITA NO. 502/IND/2010, ACIT VS. MALU ELECTRODES PVT. LTD; 14 ITJ 388; CIT VS. SURAJBHAN; 294 ITR 481 (P&H); CIT VS. GURU RAMDAS; 254 ITR 362 (P&H) AND C IT VS. SURESHCHAND MITTAL; 251 ITR 9. ON THE OTHER HAND, THE LEARNED SENIOR DR STRONGLY DEFENDED THE IMPOSITION OF PENAL TY BY PLACING RELIANCE UPON THE DECISIONS IN 335 ITR 27 (P&H) AND 238 ITR 461 (SC) BY SUBMITTING THAT THE ASSESSEE CONCEALED ITS INCOME WHICH 3 WAS UNEARTHED PURSUANT TO SURVEY CONDUCTED BY THE D EPARTMENT ON 8.8.2008 WHEREAS THE RETURN WAS FILED ON 3.12.20 08 MUCH AFTER THE SURVEY, THEREFORE, IT WAS PLEADED THAT IT IS A CLEAR CASE OF CONCEALMENT, CONSEQUENTLY, THE PENALTY WAS RIGHTLY LEVIED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE, A LIMITED COMPANY, ENGAGED IN THE BUSINES S OF MANUFACTURING, PROCESSING AND INSTALLATION OF ELECT RICAL TRANSMISSION LINES FOR M/S SUZELON INFRASTRUCTURE S ERVICES LIMITED. THE ASSESSEE DID NOT FILE ANY RETURN U/S 1 39(1) OF THE I.T. ACT NOR DURING THE EXTENDED PERIOD AVAILABLE U /S 139(4) OF THE I.T. ACT. A SURVEY U/S 133A OF THE ACT WAS CARR IED OUT AT THE PREMISES OF THE ASSESSEE ON 8.8.2008 WHEREIN IT WAS FOUND THAT DURING THE ASSESSMENT YEAR 2006-07, THE ASSESSEE RE CEIVED GROSS CONTRACT RECEIPTS OF RS.5,35,00,088/- FROM M/S SUZE LON INFRASTRUCTURE SERVICES LIMITED. THE STATEMENT OF SHRI RAGHUVIR SINGH SANGHU, ONE OF THE DIRECTORS OF THE ASSESSEE COMPANY, WAS RECORDED U/S 131(1) OF THE ACT ON 9 TH AUGUST, 2008. MR. SANGHU CATEGORICALLY ADMITTED TO OFFER TAXABLE INCOME AT R S.42,80,007/- THROUGH LETTER DATED 8.8.2008. THE RELEVANT EXTRACT OF THE STATEMENT IS REPRODUCED HEREUNDER :- 4 Q.6. DURING THE COURSE OF SURVEY PROCEEDINGS U/S 133A CARRIED OUT AT THE COMPANYS PREMISES SITUATED AT 10, S.K. COMPOUND, LASUDIA MORI, DEWAS NAKA, INDORE YESTERDAY I.E. 08.08.2008 IT WASA NOTICED THAT THE COMPANY HAS NOT FILED THE RETURNS OF INCOME FOR THE A.YRS. 2005-06, 2006-07 & 2007-08. IN THIS CONTEXT ON VERIFICATION OF THE BOOKS OF ACCOUNTS, VARIOUS DOCUMENTS, DATA AVAILABLE ON THE COMPUTER ETC. VARI OUS DISCREPANCIES WERE NOTICED IN THE ACCOUNTS MAINTAIN ED ACCORDINGLY STATEMENT OF SHRI VISHNU KUMAR BORANA, GENERAL MANAGER OF THE COMPANY WAS RECORDED U/S 131 OF THE IT ACT. IN THIS REGARD YOU VIDE YOUR LE TTER DATED 8.8.2008 FAXED TO THE COMPANYS PREMISES DURING THE COURSE OF SURVEY, HAD AUTHORISED SHRI VISHNU KUMAR BORANA TO DISCLOSE THE FACTS OF THE COMPANYS ACTIVITY, FINANCIAL ACTIVITY ETC. TO THE SURVEY PARTY. ACORDINGLY, STATEMENT OF SHRI VISHNU KUMAR BORANA WAS RECORDED U/S 131 OF THE IT ACT DURING TH E COURSE OF SURVEY ON 8.8.2008. SHRI VISHNU KUMAR BORANA AFTER DUE VERIFICATION OF THE RECORDS AND CONSULTATION WITH YOU ON TELEPHONE HAD GIVEN THE STATEMENT. I AM SHOWING YOU THE STATEMENT GIVEN BY SHRI VISHNU KUMAR BORANA, GM. PLEASE GO THROUGH TH E STATEMENT AND OFFER YOUR COMMENTS. ANS. I HAVE CAREFULLY GONE THROUGH THE STATEMENT AND NOTICED THAT THE FACTS REVEALED BY SHRI VISHNU KUMAR BORANA ARE CORRECT. I ALSO ADHERE TO THE INC OME TO BE COMPUTED @ 8% OF THE GROSS RECEIPTS CREDITED TO PROFIT & LOSS A/C OF THE ACCOUNTING YEARS 2004-05, 2005-06, 2006-07 & 2007-08 RELEVANT TO THE ASSESSMENT YEARS 2005-06, 2006-07, 2007-08 & 2008- 09 RESPECTIVELY AS STATED BY SHRI VISHNU KUMAR BORANA IN HIS STATEMENT GIVEN DURING THE COURSE OF SURVEY ACTION CARRIED OUT AT THE COMPANYS PREMISES ON 8.8.2008. HERE I WOULD FURTHER LIKE TO STATE THAT THE CONFIRMATION IN THIS REGARD HAS ALREADY BEEN GIVEN BY ME VIDE MY LETTER DATED 8.8.2008 FAXED TO YOU DURIN G THE COURSE OF SURVEY PROCEEDINGS AT THE COMPANYS PREMISES. I AGAIN ADMIT THAT CONSIDERING THE VARIOU S DISCREPANCIES IN THE BOOKS OF ACCOUNTS OF THE COMPA NY THE INCOME FOR EACH OF THE AFORESAID ASSESSMENT YEA RS 5 I.E. 2005-06, 2006-07, 2007-08 AND 2008-09 IS REQUIRED TO BE COMPUTED @ 8% OF THE GROSS RECEIPTS CREDITED TO PROFIT & LSOS ACCOUNT TO BUY PEACE OF M IND AND AVOID ANY FURTHER LITIGATION IN THE MATER. I A LSO GIVE AN ASSURANCE TO THE DEPARTMENT THAT THE RETURN S FOR EACH OF THE ASSESSMENT YEARS WILL BE FILED BY T HE DATES STATED BY SHRI VISHNU KUMAR BORANA IN HIS ABOVE REFERRED STATEMENT. THE RETURNS WILL BE FILED IN THE IT INDORE OFFICE AS THE ACTUAL ACTIVITY OF THE BUSINESS IS CARRIED OUT FROM INDORE ITSELF AND THE COMPANY IS IN THE PROCESS OF SHIFTING OF ITS REGIST ERED OFFICE FROM PUNE TO INDORE. I ALSO GIVE AN ASSURAN CE TO THE DEPARTMENT THAT THE TAXES TOGETHER WITH INTERES T WILL BE PAID BY THE COMPANY AS EARLY AS POSSIBLE. I REQUEST THE DEPARTMENT NOT TO LEVY PENALTY FOR NOT COMPLYING THE PROVISIONS OF THE ACT. 3.1 IF THE AFORESAID STATEMENT TENDERED BEFORE THE DEPARTMENT IS ANALYSED, ONE CLEAR FACT IS OOZING OUT THAT THE INC OME GENERATED OUT OF CONTRACT RECEIPTS OF RS.5,35,00,088/- FROM M /S SUZELON INFRASTRUCTURE SERVICES LIMITED WAS NEITHER DECLARE D BY THE ASSESSEE NOR ANY RETURNS WERE FILED FOR ACCOUNTING YEARS 2004- 05, 2005-06, 2006-07 AND 2007-08, RELEVANT TO ASSES SMENT YEARS 2005-06, 2006-07, 2007-08 AND 2008-09, RESPECTIVELY . EVEN SHRI VISHNUKUMAR BORANA CATEGORICALLY ADMITTED/CONFIRMED VARIOUS DISCREPANCIES IN THE BOOKS OF ACCOUNTS OF THE ASSES SEE COMPANY AND FURTHER ADMITTED TO DISCLOSE TAXABLE INCOME OF RS.42,80,007/-. IT IS PERTINENT TO MENTION HERE TH AT SUCH NON- DECLARATION OF INCOME WAS DETECTED BY THE DEPARTMEN T PURSUANT TO SURVEY ACTION U/S 133 OF THE ACT AND IT IS NOT T HE CASE THAT THE 6 ASSESSEE WILFULLY AND VOLUNTARILY FILED THE RETURNS DECLARING THE INCOME. IF THERE WOULD HAVE BEEN NO SURVEY, THERE WAS EVERY POSSIBILITY THAT SUCH INCOME WOULD HAVE REMAINED UN DETECTED. 3.2 WE ARE EXPECTED TO ANALYSE THE ISSUE VIS-A-VIS THE PROVISIONS OF THE ACT, THEREFORE, FOR READY REFEREN CE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PROVISIONS OF TH E ACT :- 271(1) IF THE ASSESSING OFFICER OR THE COMMISSIONE R (APPEALS) IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT A NY PERSON - (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME O R FURNISHED INACCURATE PARTICULARS OF SUCH INCOME, HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY, - EXPLANATION 1 : WHERE IN RESPECT OF ANY FACTS MATE RIAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, - (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OF FERS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) TO BE FALSE, OR (B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS N OT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THA T ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL I NCOME HAVE BEEN DISCLOSED BY HIM, THEN, THE AMOUNT ADDED OR DISALLOWED IN COMPUT ING THE TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL, FOR THE PURPOSES OF CLAUSE (C) OF THIS SUB-SECTION BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. EXPLANATION 3 : WHERE ANY PERSON WHO HAS NOT PREVIO USLY BEEN ASSESSED UNDER THIS ACT, FAILS, WITHOUT REASONABLE CAUSE, TO FURNISH WI THIN THE PERIOD SPECIFIED IN SUB- SECTION (1) OF SECTION 153 A RETURN OF HIS INCOME W HICH HE IS REQUIRED TO FURNISH UNDER SECTION 139 IN RESPECT OF ANY ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1ST DAY OF APRIL, 1989, AND, UNTIL THE EXPIRY OF THE PE RIOD AFORESAID, NO NOTICE HAS BEEN ISSUED TO HIM UNDER CLAUSE (I) OF SUB-SECTION (1) O F SECTION 142 OR SECTION 148 AND THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) IS SATISFIED THAT IN RESPECT OF SUCH ASSESSMENT YEAR SUCH PERSON HAS TAXABLE INCOME , THEN, SUCH PERSON SHALL, FOR THE PURPOSES OF CLAUSE (C) OF THIS SUB-SECTION, BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME IN RESPECT OF SUCH ASSESS MENT YEAR, NOTWITHSTANDING THAT SUCH PERSON FURNISHES A RETURN OF HIS INCOME AT ANY TIME AFTER THE EXPIRY OF THE PERIOD AFORESAID IN PURSUANCE OF A NOTICE UNDER SEC TION 148. 7 IN SUB-CLAUSE (C) TO SECTION 271(1) IT HAS BEEN CLE ARLY MENTIONED THAT IF ANY PERSON HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHES INACCURATE PARTICULARS OF SUCH INCOME, HE SHALL PAY BY WAY OF PENALTY. THE WORD USED IS SHALL AND NO T MAY MEANING THEREBY IF THE AFORESAID CONDITION IS SATIS FIED, THE PENALTY HAS TO BE LEVIED AND THERE IS NO DISCRETION WITH THE ASSESSING OFFICER. IN EXPLANATION 3 IT HAS BEEN CL ARIFIED THAT ANY PERSON FAILS TO FURNISH, WITHOUT REASONABLE CAUSE, WITHIN SPECIFIED TIME, THEN SUCH PERSON FOR THE PURPOSES O F CLAUSE OF THE SUB-SECTION BE DEEMED TO HAVE CONCEALED THE PAR TICULARS OF HIS INCOME NOTWITHSTANDING THAT SUCH PERSON FURNISH ES A RETURN OF HIS INCOME AT ANY TIME AFTER THE EXPIRY OF THE A FORESAID PERIOD. HOWEVER, IN THE PRESENT APPEAL, THE ASSESSEE ON DET ECTION BY THE DEPARTMENT THAT TOO AFTER THE SURVEY, AGREED FOR DI SCREPANCIES FOUND IN THE BOOKS OF ACCOUNTS AND CONSEQUENTLY AGR EED TO PAY THE TAX. WE FIND THAT AS PER SECTION 139(1) FOR THE IMPUGNED ASSESSMENT YEAR, THE DUE DATE OF FILING THE RETURN WAS 31.10.2006 WHEREAS U/S 139(4) IT WAS 31.3.2008 (I.E . WITHIN ONE YEAR FROM THE END OF THE RELEVANT YEAR OR BEFORE CO MPLETION OF ASSESSMENT). ADMITTEDLY, NO RETURN WAS FILED TILL 31.3.2008 AND SURVEY WAS CONDUCTED ON 8.8.2008. DURING SURVEY, T HE PROFIT 8 AND LOSS ACCOUNT OF VARIOUS YEARS RELEVANT TO A.YS. 2005-06, 2006-07, 2007-08 AND 2008-09 WERE FILED IN WHICH TH E SURVEY TEAM NOTED DISCREPANCIES WHICH WERE ACCEPTED BY THE ASSESSEE. THIS ACTION OF THE ASSESSEE WAS NOT SUO MOTU, THERE FORE, IN VIEW OF THE CLEAR PROVISIONS OF THE ACT, PENALTY HAS TO BE LEVIED. THE RATIO LAID DOWN BY THE HONBLE APEX COURT IN UNION OF INDIA AND OTHERS VS. DHARMENDRA TEXTILE PROCESSORS & OTHERS; 306 ITR 277 (SC) CONCLUDED THAT PROVISIONS OF SECTION 11AC INSE RTED BY THE FINANCE ACT, 1996 WITH THE INTENTION OF IMPOSING MA NDATORY PENALTY ON PERSONS WHO EVADED PAYMENT OF TAX CANNOT BE READ TO CONTAIN MENS REA AS AN ESSENTIAL INGREDIENT AND THE RE IS NO DISCRETION WITH THE AUTHORITY COMPETENT TO IMPOSE P ENALTY TO LEVY PENALTY BELOW THE PRESCRIBED MINIMUM LIMIT, FURTHER SUPPORTS THE CASE OF THE REVENUE. IN THE CASE OF K.P. MADHU SUDAN; 251 ITR 99 (SC) HONBLE APEX COURT ANALYSED THE DECISIO N FROM HONBLE BOMBAY HIGH COURT IN THE CASE OF P.M. SHAH (1993) 203 ITR 792 AND CIT VS. DHARAMCHAND L. SHAH; 204 ITR 46 2 CONCLUDED AS UNDER :- WE FIND IT DIFFICULT TO ACCEPT AS CORRECT THE TW O JUDGMENTS AFOREMENTIONED. THE EXPLANATION TO SECTIO N 271(1) IS A PART OF SECTION 271. WHEN THE INCOME- TAX OFFICER OR THE APPELLATE ASSISTANT COMMISSIONER ISS UES TO AN ASSESSEE A NOTICE UNDER SECTION 271, HE MAKES 9 THE ASSESSEE AWARE THAT THE PROVISIONS THEREOF ARE TO BE USED AGAINST HIM. THESE PROVISIONS INCLUDE THE EXPLANATION. BY REASON OF THE EXPLANATION, WHERE THE TOTAL INCOME RETURNED BY THE ASSESSEE IS LESS THAN 80 PER CENT OF THE TOTAL INCOME ASSESSED UNDER SECTION 143 OR 144 OR 147, REDUCED TO THE EXTENT THEREIN PROVID ED, THE ASSESSEE IS DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS THEREOF, UNLESS HE PROVES THAT THE FAIL URE TO RETURN THE CORRECT INCOME DID NOT ARISE FROM ANY FR AUD OR NEGLECT ON HIS PART. THE ASSESSEE IS, THEREFORE, BY VIRTUE OF THE NOTICE UNDER SECTION 271 PUT TO NOTICE THAT IF HE DOES NOT PROVE, IN THE CIRCUMSTANCES STATED IN THE EXPLANATION, THAT HIS FAILURE TO RETURN HIS CORRECT INCOME WAS NOT DUE TO FRAUD OR NEGLECT, HE SHALL BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS THEREOF AND, CONSEQUENTLY, BE LIABLE TO THE PENALTY PROVIDED BY THAT SECTION. NO EXPRESS INVOCATION OF THE EXPLANATION TO SECTION 271 IN THE NOTICE UNDER SECTION 271 IS, IN OUR VIEW, NECESSARY BEFORE THE PROVISIONS OF THE EXPLAN ATION THEREIN ARE APPLIED. THE HIGH COURT AT BOMBAY WAS, THEREFORE, IN ERROR IN THE VIEW THAT IT TOOK AND TH E DIVISION BENCH IN THE IMPUGNED JUDGMENT WAS RIGHT. LEARNED COUNSEL FOR THE ASSESSEE THEN DREW OUR ATTENTION TO THE JUDGMENT OF THIS COURT IN SIR SHAD ILAL SUGAR AND GENERAL MILLS LTD. VS.CIT (1987) 168 ITR 705. HE SUBMITTED THAT THE ASSESSEE HAD AGREED TO THE ADDITIONS TO HIS INCOME REFERRED TO HEREINABOVE TO BUY PEACE AND IT DID NOT FOLLOW THEREFROM THAT THE AMOU NT THAT WAS AGREED TO BE ADDED WAS CONCEALED INCOME. THAT IT DID NOT FOLLOW THAT THE AMOUNT AGREED TO BE ADDED WAS CONCEALED INCOME IS UNDOUBTEDLY WHAT WAS LAID DOWN BY THIS COURT IN THE CASE OF SIR SHADILAL SUGAR AND GENERAL MILLS LTD. (1987) 168 ITR 705 AND THAT, THEREFORE, THE REVENUE WAS REQUIRED TO PROVE THE ME NS REA OF A QUASI-CRIMINAL OFFENCE. BUT IT WAS BECAUSE OF THE VIEW TAKEN IN THIS AND OTHER JUDGMENTS THAT THE EXPLANATION TO SECTION 27 WAS ADDED. BY REASON OF THE ADDITION OF THAT EXPLANATION, THE VIEW TAKEN IN THI S CASE CAN NO LONGER BE SAID TO BE APPLICABLE. 10 EXPLANATION TO SECTION 271(1) IS PART OF SECTION 2 71 OR IT CAN BE SAID THAT IT EXPLAINS THE PROVISION. WHEN THE ASSE SSING OFFICER ISSUES A NOTICE U/S 271 OF THE ACT TO THE ASSESSEE, HE MAKES THE ASSESSEE AWARE THAT THE PROVISION THEREOF IS TO USE D AGAINST HIM. THESE PROVISIONS INCLUDE THE EXPLANATION. BY VIRTUE OF THE NOTICE THE ASSESSEE IS PUT TO NOTICE THAT HE DOES NOT PROV E, IN THE CIRCUMSTANCES STATED IN THE EXPLANATION THEN HE IS FAILURE TO RETURN HIS CORRECT INCOME WAS DUE TO FRAUD OR NEGLE CT, HE SHALL BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INC OME OR FURNISH INACCURATE PARTICULARS THEREOF AND CONSEQUE NTLY IS LIABLE TO PENALTY UNDER THE SECTION. NO EXPRESSION INVOCAT ION OF EXPLANATION TO SECTION 271 IN THE NOTICE U/S 271 IS NECESSARY BEFORE THE PROVISION OF THE EXPLANATION ARE APPLIED . WHILE COMING TO THIS CONCLUSION, THE HONBLE APEX COURT OVERRULE D THE DECISION IN THE CASE OF CIT VS. P.M. SHAH AND CIT VS. DHARAM CHAND N. SHAH (SUPRA) FROM HONBLE BOMBAY HIGH COURT AND AF FIRMED THE DECISION FROM KERALA HIGH COURT IN K.P.MADHUSUDAN; 246 ITR 218. THE ABOVE LEGAL POSITION FORTIFIES THE CASE O F THE REVENUE. 3.3 ANY CONCEALMENT OR INACCURACY IN THE PART ICULARS OF INCOME IN` THE RETURN OCCURRING AT ANY STAGE UP TO AND INCLUSIVE OF ULTIMATE STAGE OF WORKING OUT THE TOTAL INCOME W OULD ATTRACT 11 THE PENALTY PROVISION. THE WORDS INACCURATE PARTI CULARS WOULD COVER FALSITY IN THE FINAL FIGURES AS ALSO THE CONS TITUENT ELEMENTS OR ITEM. THEY SIMPLY WOULD MEAN INACCURATE IN SOME SPECIFIC OR DEFINITE RESPECT WHETHER IN THE CONSTITUENT OR SUBO RDINATE ITEMS OF INCOME OR THE END RESULT. IF THE FACTS OF THE P RESENT APPEAL ARE KEPT IN JUXTAPOSITION WITH THE PENALTY PROVISION, I T IS AN ADMITTED POSITION THAT NO RETURN OF INCOME WAS FILED BY THE ASSESSEE WITHIN THE TIME PRESCRIBED U/S 139 OF THE ACT. AS PER THE PROVISIONS OF SECTION 139(4) OF THE ACT, THE ASSESSEE WAS TO FILE ITS RETURN LATEST BY 31.3.2008. SURVEY U/S 133A OF THE ACT WAS CARRIE D OUT AT THE PREMISES OF THE ASSESSEE ON 8.8.2008 AND UPON DETEC TION OF VARIOUS DISCREPANCIES IN BOOKS OF ACCOUNTS, DOCUMEN TS, DATA AVAILABLE ON COMPUTER, ETC. AND THE STATEMENT OF TH E GENERAL MANAGER OF THE ASSESSEE COMPANY, ADMITTING SUCH DIS CREPANCIES, PENALTY WAS LEVIED. ON THE BASIS OF DISCREPANCIES, THE ASSESSEE ACCEPTED TO PAY THE TAX ON THE TAXABLE INCOME OF RS .42,80,007/- AND NOT SUO MOTU. FOR THE YEAR, UNDER CONSIDERATIO N, I.E. 2006- 07, GROSS RECEIPTS WERE TO THE TUNE OF RS.5,35,00,0 88/-, PURSUANT TO SURVEY CARRIED OUT BY THE DEPARTMENT. IT IS NOTE WORTHY THAT THE PENALTY HAS BEEN IMPOSED ON THE MINIMUM PRESCRI BED LIMIT AND THE ACTION OF THE ASSESSEE FOR FILING THE RETUR N OF INCOME EVEN 12 BEYOND THE TIME LIMIT PRESCRIBED U/S 139(4) OF THE I.T. ACT WAS PROMPTED BY THE ACTION TAKEN BY THE DEPARTMENT ONLY , THEREFORE, THE PENALTY WAS RIGHTLY LEVIED. 3.4. NOW WE SHALL DEAL WITH THE CASE LAWS CITED BY THE LEARNED COUNSEL FROM BOTH THE SIDES. IN THE CASE OF CIT VS . SHYAMLAL M. SONI (SUPRA), THE PENALTY WAS IMPOSED BY THE ASSESS ING OFFICER BUT LATER ON SET ASIDE BY THE CIT(A) AND LATER ON S INCE THE ASSESSEE FILED THE REVISED RETURN, DISCLOSING ITS T RUE INCOME, WHICH WAS ACCEPTED BY THE REVENUE, IT WAS HELD THAT THERE WAS NO CONCEALMENT. IN THE CASE OF S.V. ELECTRICALS PRI VATE LIMITED (SUPRA), SINCE THERE WAS NO CONCEALMENT AND SURREND ER WAS MADE, THE HONBLE HIGH COURT HELD THAT NO PENALTY WAS LEVIABLE. IN THE CASE OF CIT VS. M. PACHAMUTHU; 295 ITR 502 ( MAD.); SINCE THERE WAS NO PROOF OF CONCEALMENT AND THE ADDITION WAS MADE TO THE INCOME AS AGREED BY THE ASSESSEE, IT WAS HELD T HAT PENALTY WAS NOT TO BE IMPOSED. IN THE CASE OF CIT VS. SURA JBHAN; 294 ITR 481 (P&H); PENALTY WAS DELETED SINCE THE TRIBUNAL C ATEGORICALLY GAVE A FINDING THAT THE ASSESSEE DISCHARGED ITS BUR DEN BY FILING A REVISED RETURN SHOWING THE AMOUNTS. IN THE CASE OF CIT VS. GURU RAMDAS FRUIT & VEGETABLE AGENCY; 254 ITR 361 (P&H) SINCE THE ASSESSEE FILED REVISED RETURN AND PAID TAXES BEFORE NOTICE OF 13 REASSESSMENT WAS ISSUED, THE PENALTY WAS CANCELLED. IN THE CASE OF SURESH CHAND MITTAL; 251 ITR 9, THE PENALTY WAS CANCELLED MERELY ON THE FINDING OF THE TRIBUNAL THAT THE DEPA RTMENT HAS NOT DISCHARGED ITS BURDEN OF PROVING CONCEALMENT AND SI MPLY RESTED ITS CONCLUSION ON VOLUNTARY SURRENDER. IN THE CASE OF SMT. SARITA AGRAWAL (2011) 17 ITJ 193 THE INCOME WAS REVISED/DI SCLOSED BEFORE IT WAS DETECTED BY THE DEPARTMENT. IN THAT SITUATION IT WAS HELD THAT THERE WAS NO CONCEALMENT AND THUS PENALTY CANNOT BE LEVIED. THE TOTALITY OF FACTS OF THESE CASES CLEARL Y INDICATE THAT EITHER THERE WAS NO CONCEALMENT OR THERE WAS BONA F IDE MISTAKE ON THE PART OF THE ASSESSEE OR DECLARATION WAS MADE BY THE ASSESSEE BEFORE THE SAME IS DETECTED BY THE DEPARTM ENT, THEREFORE, THE FACTS ARE DISTINGUISHABLE, CONSEQUEN TLY MAY NOT HELP THE ASSESSEE. IN THE CASE OF PREMPAL GANDHI V S. CIT (2011) 335 ITR 23 (P&H) 231 CTR (P&H) 100 WHEREIN REVISE D RETURN SHOWING HIGHER INCOME WAS FILED PURSUANT TO NOTICE U/S 148. IT WAS HELD BY THE HONBLE HIGH COURT THAT THIS IS NOT A CASE WHERE THE PENALTY HAS BEEN IMPOSED ONLY BECAUSE THE ASSES SEE DISCLOSED HIGHER INCOME VOLUNTARILY BUT IS A CASE O F CONCEALMENT WHERE THE ASSESSEE HAVING FOUND NO OTHER WAY OUT WA S FORCED TO SURRENDER UNDISCLOSED INCOME. THE PENALTY WAS HELD TO BE 14 LEVIABLE FOR CONCEALMENT. WHILE COMING TO THIS CONC LUSION, THE HONBLE HIGH COURT CONSIDERED THE FOLLOWING CASES : - CCE VS. ADHUNIK STEELS LTD. ( 2009) 20 DTR (P&H) 228 CIT VS. BETA NEPTHOL LTD. (2005) 272 ITR 323 (MP) KOHINOOR IMPEX (P) LTD. (2004) 270 ITR 381 (DEL) CIT VS. ORIENTAL POWER CABLE LTD. (2008) 9 DTR (RAJ) 309 CIT VS. RAJIV GARG & ORS. (2008) 18 DTR (P&H) 152 CIT VS. RAJNISH NATH AGGARWAL (2008) 8 DTR (P&H) 253 CIT VS. SHANKERLAL NEBHUMAL UTTAMCHANDANI (2008) 4 DTR (GUJ) 238 CIT VS. SMT. SUDARSHAN GUPTA (2008) 10 DTR (P&H) 184 CIT VS. SURAJ BHAN 294 ITR 481 (P&H) SURESH CHANDRA MITTAL (2001) 251 ITR 9 (SC) UNION ELECTRIC CORPN. 281 ITR 266 (GUJ) DILIP N. SHROFF 291 ITR 519 (SC) HARIGOPAL SINGH VS. CIT; 258 ITR 85 (P&H) T. ASHOK PAI VS. CIT 292 ITR 11 (SC) IT IS NOT A CASE OF BONAFIDE MISTAKE, IN WHICH THE BENEFIT OF THE DECISION FROM THE HONBLE JURISDICTIONAL HIGH COURT PRONOUNCED IN CIT VS. SKYLINE AUTO PRODUCTS PVT. LTD, 271 ITR 335 (MP) MAY BE GIVEN. 3.5 IN THE CASE OF CIT VS. RAKESH SURI (2011) 331 ITR 458 (ALL) THE ASSESSEE DISCLOSED INCOME OF RS.1,17,600/ - AND THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSEE CLAIMED LO NG TERM CAPITAL GAIN ON SALE OF SHARES AND CONSTRUCTED A HOUSE INVE STING CERTAIN AMOUNT. ASSESSEE WAS ASKED TO FURNISH A CONTRACT NO TE OF SALE OF 15 SHARES AND INVESTMENT IN HOUSE PROPERTY. THE ASSESS EE DID NOT FURNISH FULL DETAILS. LATER ON THE ASSESSEE SURREND ERED THE INCOME. THE PENALTY WAS HELD TO BE LEVIABLE BY THE HONBLE HIGH COURT SINCE THE ACTION OF THE ASSESSEE WAS NEITHER BONAFIDE NOR VOLUNTARY BUT UNDER COMPULSION, BEING CORNERED BY T HE ASSESSING OFFICER. WHILE COMING TO THIS CONCLUSION, THE HON BLE HIGH COURT CONSIDERED VARIOUS DECISIONS FROM HONBLE VARIOUS H IGH COURTS AND APEX COURT WHICH ARE MENTIONED AT PAGES 459 AND 460 OF THE AFORESAID ORDER. IN ANOTHER CASE IN LMP PRECI SION ENGG. CO. LTD. VS. DCIT (2012) 330 ITR 93 (GUJ), WHEREIN THE ASSESSEE FILED REVISED RETURN AFTER SURVEY OPERATION, THE IMPOSITI ON OF PENALTY WAS HELD TO BE VALID. IT IS PERTINENT TO MENTION HE RE THAT WHILE COMING TO THIS CONCLUSION, THE HONBLE HIGH COURT C ONSIDERED VARIOUS DECISIONS INCLUDING FROM HONBLE APEX COURT /HIGH COURT, WHICH ARE AVAILABLE AT PAGE 95 OF THE ORDER. THE IN DORE BENCH OF THE TRIBUNAL IN A LATEST DECISION DATED 31.1.2013 I N THE CASE OF ACIT VS. ALPA LABORATORIES PVT. LTD. (ITA NO. 487/I ND/2012) DECIDED THE ISSUE IN FAVOUR OF THE REVENUE ESPECIAL LY WHEN THE CONCEALMENT OF INCOME WAS DETECTED BY THE DEPARTMEN T. THE PENALTY WAS HELD TO BE LEVIABLE. 16 IN VIEW OF THE CLEAR PROVISIONS OF LAW, FACTS ON R ECORD AND THE JUDICIAL PRONOUNCEMENTS DISCUSSED HEREINABOVE, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN IN THE IMPUGNED O RDER. IT IS AFFIRMED. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13.2.2013. SD SD (R.C.SHARMA) (JOGINDER S INGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13.2.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-121213