ACIT 22(3), NAVI MUMBAI V. SURYAPRAKASH AGARWAL ( SUNNY REAL ESTAE CONSULTANTS), NAVI MUMBAI

ITA 8727/MUM/2011

• Counselvise Citation: 872719914 RSA 2011
• Duration Of Justice: 2 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 19-06-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 26-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRJA PRADHAN
• Assessee Lawyers: DR P DANIEL
• Keywords: Depreciation; Question of law; Initiation of penalty proceedings; Wrong claim; Revised return; Reassessment proceedings
• Section: 133A; 139(5)

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - E BENCH. . . , , BEFORE S/SH.I.P.BANSAL, JUDICIAL MEM BER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.8727/MUM/2011, ! ! ! ! / ASSESSMENT YEAR-2006-07 ACIT 22(3), VASHI RAILWAY STATION COMPLEX, TOWER NO.6, 3 RD FLOOR, VASHI, NAVI MUMBAI-400705 VS SHRI SURYAPRAKASH AGARWAL, PROP: M/S.SUNNY REAL ESTATE CONSULTANTS, 39, ARENJA CORNER, SECTOR 17, VASHI, NAVI MUMBAI-400705. PAN: AABPA7894B ( '# / APPELLANT) ( $%'# / RESPONDENT) & ' / REVENUE BY : SMT. NIRJA PRADHAN () () () () ' ' ' ' / ASSESSEE BY : DR. P. DANIEL & && & )* )* )* )* / DATE OF HEARING : 19-06-2014 +,! & )* / DATE OF PRONOUNCEMENT : 01-08-2014 , 1961 & && & 254 254 254 254( (( (1 11 1) )) ) )3) )3) )3) )3) 4 4 4 4 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM : CHALLENGING THE ORDER DT.13.10.2011 OF THE CIT(A)-3 3,MUMBAI,ASSESSING OFFICER(AO) HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1)ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD.CIT(A) ERRED IN LAW AND FACT THAT HONBLE ITAT HAS DELETED THE QUANTUM ADDITION IN A.Y. 2006-07 ON THE UNDISCLOSED INCOME DETECTED IN CONSEQUENCE OF SEARCH U/S. 133A OF THE IT ACT, ON WHICH PENALTY OF RS.9,65,000/- WAS LEVIED U/S 271 (1)(C) OF THE I.T. ACT. 2)ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN RELYING ON THE CASE LAW M/S. BHAGAT & CO.,VS.ACIT 101 TTJ (MUMBAL) 553, WHICH IS NOT APPLICABLE IN THE PRESENT CASE AS THE FACTS AND CIRCUMSTANCES ARE DIF FERENT. 3)THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4)THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. ASSESSEE,AN INDIVIDUAL ENGAGED IN THE BUSINESS OF R EAL ESTATE CONSULTANCY AND BROKING,FILED HIS RETURN OF INCOME ON 30.10.2006,DECLARING AN INC OME OF RS.12,31,330/-.AO FINALISED THE ASSESSMENT U/S.143(3) OF THE ACT,ON 26.02.2007,DETE RMINING THE TOTAL INCOME AT RS.28,60,628 /-. A SURVEY ACTION U/S.133A OF THE ACT WAS CONDUCTED A T THE BUSINESS PREMISES OF THE ASSESSEE ON 14/11/2006 AND CERTAIN REGISTERS,BOOKS AND LOOSE PA PERS WERE IMPOUNDED.HE ADMITTED IN THE STATEMENT,RECORDED ON OATH,THAT HE HAD ACCEPTED BRO KERAGE/COMMISSION IN CASH, THAT WHERE-EVER THE CUSTOMERS HAD NOT INSISTED ON RECEIPTS FOR PAYM ENTS NO RECEIPTS WAS ISSUED, THAT SUCH INCOME HAD NOT BEEN ACCOUNTED FOR AS INCOME IN THE BOOKS O F ACCOUNT.HE ESTIMATED SUCH INCOME AT RS.75 ITA/8727/MUM/2011SPA 2 LAKHS AND DECLARED THE SAME AS UNDISCLOSED INCOME F OR A.Y.2006-07OVER AND ABOVE THE INCOME DECLARED IN THE ORIGINAL RETURN FILED.ACCORDINGLY,H E REVISED HIS RETURN OF INCOME ON 20/11/2006 DECLARING TOTAL INCOME AT RS.87,31,330/-. 2.A. DURING THE COURSE OF ASSESSMENT PROCEEDINGS,THE AO VERIFIED THE IMPOUNDED BOOKS/ DOCUM - ENTS.HE FOUND THAT THAT THE ASSESSEE HAS RECEIVED B ROKERAGE/COMMISSION INCOME IN CASH, AMOUNTING TO RS.39,12,752/-,DURING THE YEAR UNDER A PPEAL.HE REQUIRED THE ASSESSEE TO FURNISH DETAILS OF TOTAL RECEIPTS CREDITED TO P & L A/C.OF RS.61,68,023/-.AFTER CONSIDERING THE SUBMISSION -NS OF THE ASSESSEE,THE AO HELD THAT THE ASSESSEE H AD NOT DISCLOSED THE CASH RECEIPTS OF RS.30,12, 752/- IN THE ORIGINAL RETURN FILED ON 30/10/2006,TH AT THE ASSESSEE HAD CONCEALED PARTICULARS OF HIS INCOME AND FURNISHED INACCURATE PARTICULARS OF SUCH INCOME.HE INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT.IN RESPONSE TO THE PENALTY NOT ICE ASSESSEE FILED AN EXPLANATION VIDE LETTER DATED 17.11. 2007 AND STATED THAT DISCLOSURE OF RS. 75 LAKHS MADE FOR THE AY- 2006-07 WAS MADE TO COVER DEFICIENCY FOR ALL THE YEARS PRIOR TO THE DATE OF SURVEY,THAT WHILE EXAMINING THE DETAILS FOR THE AY 2006-07, THE AO COULD ONLY FIND DEFICIEN CY OF RS.13.12 LAKHS AS AGAINST RS.75 LAKHS DISCLOSED BY THE ASSESSEE,THAT NO UNACCOUNTED ASSET S WERE DETECTED DURING THE COURSE OF SURVEY, THAT ASSESSEE DECLARED HIGHER INCOME ON THE CLEAR U NDERSTANDING THAT NO PENALTY WOULD BE CHARGED. AFTER CONSIDERING THE SUBMISSION OF THE AS SESSEE, AO HELD THAT ASSESSMENT FOR THE AY 2006-07 WAS BASED ON EVIDENCES COLLECTED DURING THE SURVEY AND AFTER THE ASSESSEE HAD ADMITTED THAT THE TOTAL RECEIPTS DISCLOSED IN P&L ACCOUNT DI D NOT INCLUDE CASH RECEIPTS RECORDED IN THE BOOKS OF ACCOUNTS, THAT ASSESSEE HAD NOT DISCLOSED ALL THE MATERIAL FACTS, THAT THERE WAS NO UNDERSTANDING OR ASSURANCE EXPRESSED TO OTHERWISE G IVEN TO THE ASSESSEE ABOUT NON-LEVY OF PENALTY,THAT NO SUCH PROMISES COULD BE GIVEN DISREG ARDING THE PROVISIONS OF LAW, THAT THERE COULD NOT BE ANY CONTRACT BETWEEN THE AO AND THE ASSESSEE , SO FAR AS TAXING OF INCOME WAS CONCERNED, THAT CASH RECEIPTS OF RS. 13.12 LAKHS WERE FOUND NO T RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE, THAT SAME WERE NOT INCLUDED IN TOTAL RECE IPTS DISCLOSED BY THE ASSESSEE IN THE FINAL ACCOUNTS FILED WITH THE RETURN OF INCOME,THAT FAILU RE ON THE PART OF THE ASSESSEE TO DISCLOSE THE INCOME RECEIVED BY HIM MADE GUILTY OF ACT OF SUPPRE SSION/CONCEALMENT OF INCOME AND RECEIPTS, THAT PAYMENT OF TAXES WAS CONSEQUENT TO DETECTION O F CONCEALMENT BY THE DEPARTMENT,THE REVISED RETURN WAS FILED BECAUSE OF THE SURVEY ACTION CARRI ED OUT U/S.133A OF THE ACT,THAT THE ASSESSEE WOULD NOT HAVE DISCLOSED/ DECLARED ADDITIONAL INCOM E AND CASH RECEIPTS THAT WERE NOT RECORDED IN THE BOOKS OF ACCOUNTS AND IMPOUNDED DURING THE COUR SE OF SURVEY ACTION,THAT DECLARATION CAME IN THE REVISED RETURN SUBSEQUENT TO THE FINDINGS MADE IN SURVEY AND NOT IN THE ORIGINAL RETURN FILED BY THE ASSESSEE. FINALLY,HE LEVIED A MINIMUM PENALT Y OF RS. 9.65 LAKHS U/S. 271(1)(C) OF THE ACT. 3. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).AFTER CONSIDERING THE ASSESSMENT ORD ER,PENALTY ORDER AND THE ORDER OF THE TRIBUNAL IN QUANTUM PROCEEDINGS,SUBMISSIONS MADE BY THE ASSESSEE,FAA HELD THAT THE AMOUNT DECLARED BY THE ASSESSEE I.E. RS. 75 LAKHS AS UNDIS CLOSED INCOME FOR THE AY 2006-07 WAS MUCH MORE THAN THE DISCREPANCIES FOUND BY THE AO,THAT DE CLARATION MADE BY THE ASSESSEE WAS ACCEPTED BY THE DEPARTMENT.RELYING UPON THE ORDER OF BHAGAT & CO. 101 TTJ 553,FAA DELETED THE PENALTY LEVIED BY THE AO. 4. BEFORE US,DEPARTMENTAL REPRESENTATIVE (DR)STATED TH AT THE ASSESSEE HAD FILED THE REVISED RETURN AFTER THE DEPARTMENT HAD FOUND THE CONCEALMENT OF I NCOME BY HIM,THAT THE ADMISSION BY THE ASSESSEE WAS NOT A VOLUNTARY ACT,THAT THE FAA HAD N OT TAKEN IN TO CONSIDERATION THE SURROUNDING ITA/8727/MUM/2011SPA 3 CIRCUMSTANCRS. AUTHORISED REPRESENTATIVE(AR)SUPPORT ED THE ORDER OF THE FAA.HE RELIED UPON THE MATTERS OF SAS PHARMACEUTICALS (335ITR259) AND REL IANCE PETROPRODUCTS PVT. LTD.(322ITR158) 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED REVISED RETURN AFTER A SURVEY WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE,THAT HE ADMITTED AN ADDITI ONAL INCOME OF RS.75 LAKHS,THAT THE AO HELD THAT THE ASSESSEE HAD NOT DISCLOSED THE CASH RECEIP TS OF RS.30,12,752/- IN THE ORIGINAL RETURN,THAT HE LEVIED PENALTY OF RS.9.65 LAKHS U/S.271(1)(C)OF THE ACT,THAT THE FAA HAD DELETED THE PENALTY. HE WAS OF THE OPINION THAT DECLARATION MADE BY THE ASSESSEE WAS MORE THAN THE DISCREPANCIES FOUND DURING THE SURVEY. 5.1. BEFORE PROCEEDING FURTHER,WE WOULD LIKE TO CONSIDER THE GENERAL PRINCIPLES, PROPOUNDED BY THE HONBLE COURTS,WITH REGARD TO CONCEALMENT PENAL TY AND ISSUE OF FILING OF REVISED RETURNS AND LEVY OF SUCH PENALTY IN LIGHT OF SOME OF THE CASES WHEREIN THIS ISSUE HAS BEEN DELIBERATED UPON.SOME OF THE PRINCIPLES CAN BE SUMMARISED AS UN DER: A. IN ORDER TO JUSTIFY THE LEVY OF CONCEALMENT PENALTY TWO FACTORS MUST CO-EXIST,FIRSR THERE MUST BE SOME MATERIAL OR CIRCUMSTANCES LEADING TO THE REASO NABLE CONCLUSION THAT THE AMOUNT REPRESENTS THE ASSESSEES INCOME-IT IS NOT ENOUGH FOR THE PURP OSE OF PENALTY THAT THE AMOUNT HAS BEEN ASSESSED AS INCOME.SCECONDLY,THE CIRCUMSTANCES MUST SHOW THAT THERE WAS ANIMUS,I.E.,CONSCIOUS CONCEALMENT OR ACT OF FURNISHING OF INACCURATE PART ICULARS ON THE PART OF THE ASSESSEE.EXPLANATION TO THE SECTION HAS NO BEARING ON FACTOR NO.1,BUT IT HAS A BEARING ONLY ON FACTOR NO.2. B. ONCE THE AO ARRIVES AT A SUBJECTIVE SATISFACTION UN DER THE FACTS AND CIRCUMSTANCES OF THE CASE,IT MAY NOT BE PROPER FOR THE TRIBUNAL TO ENTER UPON TH E MERITS OF THE CONTROVERSY AT ALL AND UNLESS IT IS DEMONSTRATED;THAT THE INDICATION MADE BY THE AO TO INITIATE PENALTY PROCEEDINGS WAS MALA- FIDE,PERVERSE,BASED ON NO EVIDENCE,MISREADING OF EV IDENCE OR WHICH A REASONABLE MAN COULD NOT FORM OR THAT THE PERSON CONCERNED WAS NOT GIVEN DUE OPPORTUNITY RESULTING IN PREJUDICE;THE SAID PROCEEDINGS NEED NO INTERFERENCE. C. THE FACTS THAT THE ASSESSEE HAS DISCLOSED SOME FIGU RES OR SOME PARTICULARS BY ITSELF WOULD NOT TAKE THE CASE OUT FROM THE PURVIEW OF FURNISHING IN ACCURATE PARTICULARS,EVEN IF IT TAKES THE CASE OUT FROM THE PURVIEW OF NON-DISCLOSURE. D. THOUGH THE TERM INACCURATE PARTICULARS IS NOT DEFIN ED,YET THE WORDS INACCURATE PARTICULARS SIGNIFY AN ACT OR OMISSION ON THE PART OF THE ASSES SEE.SUCH AN ACT CAN BE EITHER FOR THE PURPOSE OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PART ICULARS.HONBLE RAJASTHAN HIGH COURT HAS,IN THE CASE OF YASHWANT SINGH (212ITR207),HELD THAT TH E WORD INACCURATE PARTICULARS HAVE ALSO TO BE INTERPRETED TO MEAN THE ACTION OF AN ASSESSEE AS A RESULT OF GROSS OR WILFUL NEGLECT ON HIS PART, THAT THERE MAY BE A CASE WHERE THE ADDITIONS HAVE B EEN MADE PURELY ON ESTIMATE WITHOUT GOING INTO THE DETAILS OF THE EXPENDITURE INCURRED,THAT I N SUCH A CASE,PENALTY CANNOT BE LEVIED ON THE FIGURES WHICH ARE MERELY BASED ON GUESSWORK OR ESTI MATE,THAT IN A CASE WHERE A DETAILED ENQUIRY IS MADE AND THE ASSESSEE IS CONFRONTED WITH THE EVI DENCE AND HAS NOT BEEN IN A POSITION TO REBUT THE FACTUAL POSITION ON THE BASIS OF WHICH THE ADDI TIONS HAVE BEEN MADE,THE DECISION STANDS ON A DIFFERENT FOOTING. E. THE APPLICABILITY OF SECTION 271(1)(C) OF THE ACT D OES NOT DEPEND ON THE CONSENT OR OTHERWISE OF THE ASSESSEE.(124ITR376). 5.B. AS A PROPOSITION OF LAW IT MAY BE CORRECT THAT WHER E A REVISED RETURN AS CONTEMPLATED U/S. 139(5)OF THE ACT IS SUBMITTED BEFORE THE ASSESSMENT IS MADE AFTER AN ASSESSEE DISCOVERES SOME ITA/8727/MUM/2011SPA 4 OMISSION OR SOME WRONG STATEMENT IN THE ORIGINAL RE TURN,A PENALTY PROCEEDING FOR CONCEALMENT OF THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME AS CONTEMPLATED U/S. 271(1)(C) OF THE ACT MAY NOT BE ATTRACTED.BUT,FOR T HAT PURPOSE,THE REVISED RETURN ITSELF MUST BE WITHIN THE CORRECT AMBIT AND SCOPE OF SECTION 139(5 ). IN THE MATTER OF SULEMANJI GANIBHAI, HONBLE M P HIGH COURT (121ITR373)HAS EXPLAINED THE ABOVE PRINCIPLE IN FOLLOWING MANNER: THE DUTY TO DISCLOSE PARTICULARS OF HIS INCOME ARI SES AT THE TIME WHEN THE ASSESSEE FURNISHES THE RETURN UNDER S. 139(1) AND IF THE ASSESSEE IN FILIN G HIS RETURN CONCEALS THE PARTICULARS OF HIS INCOME OR FURNISHES INACCURATE PARTICULARS HE INCUR S THE PENALTY UNDER S. 271(1)(C). THE PROVISION DEALING WITH REVISED RETURN IN S. 139(5) SAYS THAT IF ANY PERSON HAVING FURNISHED A RETURN DISCOVERS ANY OMISSION OR WRONG STATEMENT TH EREIN, HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE ASSESSMENT IS MADE. A REVISED RETUR N CAN BE FILED ONLY WHEN THE ASSESSEE 'DISCOVERS ANY OMISSION OR WRONG STATEMENT' IN THE RETURN EARLIER FILED BY HIM. THE OMISSION OR WRONG STATEMENT IN THE RETURN WHICH ENTITLES THE AS SESSEE TO FILE A REVISED RETURN MUST BE ONE WHICH IS LATER DISCOVERED, I.E., WHICH IS UNINTENTI ONAL AND WHICH OCCURS BECAUSE OF SOME MISTAKE OF WHICH THE ASSESSEE IS NOT AWARE.WHEN HE INTENTIO NALLY SUPPRESSES HIS INCOME, I.E., CONCEALS IT IN THE RETURN, THERE IS NO SCOPE FOR FILING ANY REV ISED RETURN, FOR, IN SUCH A CASE, THE OMISSION OR WRONG STATEMENT IN THE RETURN IS KNOWN TO THE ASSES SEE FROM THE VERY BEGINNING AND IS NOT LATER DISCOVERED BY HIM. IT IS NOT POSSIBLE TO ACCEPT THE VIEW THAT UNDER S. 271(1)(C) THE PENALTY IS INCURRED AT THE STAGE WHEN THE ITO OR THE AAC, AS THE CASE MAY BE, 'IS SA TISFIED' THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME OR HAS FURNISHED INACCURA TE PARTICULARS OF HIS INCOME. THE ORDER OF THE ITO OR THE AAC ONLY QUANTIFIES THE PENALTY THAT IS ALREADY INCURRED. IN A CASE WHERE THE ASSESSEE HIMSELF,DURING THE COU RSE OF ASSESSMENT PROCEEDINGS,FILES A REVISED RETURN AND OWNS A DISPUTED AMOUNT TO BE HIS INCOME AND THE ADMISSION OF THE ASSESSEE IS PROVED BY THE DEPARTMENT DURING PENALTY PROCEEDINGS THE ON US ON THE DEPARTMENT IS DISCHARGED.IN THAT SITUATION THE ASSESSEE IS PUT TO PROOF AND IT IS OP EN TO THE ASSESSEE TO PROVE IN THE PENALTY PROCEEDINGS THAT THE ADMISSION MADE BY HIM DURING T HE COURSE OF ASSESSMENT PROCEEDINGS WAS WRONGLY OR ILLEGALLY MADE OR WAS INCORRECT.HE CAN L EAD EVIDENCE DURING PENALTY PROCEEDINGS TO SHOW THAT HE HAD NOT CONCEALED ANY INCOME OR FURNIS HED INACCURATE PARTICULARS THEREOF. IF HE FAILS TO PROVE THIS, THE INCOME-TAX DEPARTMENT WOULD BE J USTIFIED IN LEVYING PENALTY ON HIM U/S.271(1) (C) OF THE ACT.(92ITR513). THE HONBLE BOMBAY HIGH COURT HAD AN OCCASION TO DE AL WITH THE ISSUE OF FILING OF REVISED RETURN AND LEVY OF CONCEALMENT PENALTY UNDER THE IN DIAN INCOME TAX ACT,1922 IN TWO CASES NAMELY VADILAL ICHHACKAND(32ITR569)AND JAYBHAI GIRD HARBHAI(32ITR677).IN THE FIRST CASE THE HONBLE COURT HELD THAT THE ASSESSEE'S CONTUMACY IN DELIBERATELY HAVING OMITTED TO FILE AN ORIGINAL RETURN DISCLOSING THE CORRECT AND ACCURATE PARTICULARS CANNOT BE GOT RID OF BY MERELY FILING A REVISED RETURN AND THAT PENALTY WOULD BE A TTRACTED DESPITE THE FACT THAT THE ORIGINAL RETURN HAS BEEN SUBSEQUENTLY CORRECTED BY A REVISED RETURN .IN THE CASE OF JAYBHAI(SUPRA)THE HONBLE COURT HELD THAT THE ACTUAL RESULT OF THE ASSESSMENT HAS NOTHING WHATEVER TO DO WITH AN ATTEMPT MADE BY THE ASSESSEE TO CONCEAL PARTICULARS OF HIS INCOME IN HIS ORIGINAL RETURN IN WHICH HE DELIBERATELY FURNISHED INACCURATE PARTICULARS OF HI S INCOME AND THAT THE FACT THAT THE INCOME HAD NOT ESCAPED ASSESSMENT AS A RESULT OF THE CONCEALME NT MADE IN THE ORIGINAL RETURN IS OF NO CONSEQUENCE FOR IMPOSING PENALTY U/S.28(1)(C) OF IN DIAN INCOME TAX ACT,1922.THE HONBLE MADRAS HIGH COURT IN SIVAGAMINATHA MOOPANAR & SONS (52ITR591)HELD THAT IF THE ASSESSEE,AT THE TIME OF SUBMITTING THE ORIGINAL RETURN,INTENDED TO CONCEAL A PART OF HIS INCOME, OR DELIBERATELY GAVE FALSE PARTICULARS AT THAT TIME, AND THE MERE F ACT THAT HE SUBSEQUENTLY RECTIFIED THE OMISSION BY GIVING FULL PARTICULARS,WOULD NOT AVOID THE APPL ICABILITY OF S 28(1)(C)OF THE 1922 ACT. ITA/8727/MUM/2011SPA 5 5.C. FILING OF REVISED RETURNS,ADMISSION OF ADDITIONAL I NCOME AND JUSTIFICATION OF LEVY OF CONCEALMENT PENALTY IS SUCH CASES HAS BEEN THE SUB JECT MATTER OF MANY A CASES.WE WOULD LIKE TO CONSIDER A FEW IMPORTANT SUCH MATTERS.FIRST OF THEM IS THE MATTER OF JYOTI LAXMAN KONKAR, DELIVERED BY THE HONBLE BOMBAY HIGH COURT(292ITR16 3).IN THAT CASE THE ASSESSEE HAD FILED A RETURN ON 25.11.1999,FOR THE AY.1999-2000 DECLARING AN INCOME OF RS.7,40,510/-.NOT SATISFIED THEREWITH, THE AO CARRIED OUT A SURVEY U/S.133A OF THE ACT AND DURING THE SURVEY IT WAS FOUND THAT THERE WAS A DISCREPANCY IN STOCK TO THE TUNE O F RS.18,28,706/-. IT WAS BROUGHT TO THE NOTICE OF THE ASSESSEE AND THE ASSESSEE FILED A REVISED RETUR N DISCLOSING ADDITIONAL INCOME OF RS.18,28, 706/-.THOUGH THE REVISED RETURN WAS FINALISED,BUT A T THE SAME TIME A NOTICE U/S.271(1)(C) OF THE ACT TO IMPOSE PENALTY WAS ISSUED BY THE AO.IT WAS D ISPOSED OF BY ORDER DATED 25.05.2001 AND A PENALTY OF RS.2,75,000/-WAS IMPOSED.IN THE SAID ORD ER, THE AO OBSERVED THAT THE ASSESSEE HAD COME FORWARD WITH THE REVISED RETURN OUT OF COMPULS ION SINCE SUPPRESSION OF INCOME WAS DETECTED IN SURVEY CARRIED OUT U/S.133A, THEREFORE, THE ACT OF FILING A REVISED RETURN WAS NOT VOLUNTARY.HE ALSO FOUND THAT THE ASSESSEE HAD DELIB ERATELY ATTEMPTED TO CONCEAL THE INCOME.THE ASSESSEE FILED AN APPEAL BEFORE THE FAA. IN ALLOWIN G THE ASSESSEES APPEAL,HE RELIED UPON THE DECISION IN THE CASE OF SURESH CHANDRA MITTAL (241I TR124) THE AO CARRIED AN APPEAL TO THE ITAT AND THE TRIBUN AL ALLOWED THE SAME.IN DISPOSING OF THE SAID APPEAL THE TRIBUNAL OBSERVED THAT WHETHER AN ASSESS EE HAD CONCEALED INCOME OR NOT WAS A MATTER OF FACT AND ONE NEEDED NOT GO INTO THE GAMUT OF CAS ES WHICH WERE DECIDED ON THE FACTS OF THE RESPECTIVE CASES,THAT THE FILING OF THE SECOND RETU RN (SIC-REVISED)SPOKE LOUDLY ABOUT THE CONDUCT OF THE ASSESSEE WHICH COULD NOT BE SAID TO BE ANYTH ING ELSE THAN MALA FIDE (SIC-DISHONEST) AND FILING OF ANOTHER RETURN DID NOT OBLITERATE THE FAC T OF THE EARLIER MALA FIDE(SIC-DISHONEST) RETURN AND THAT THE ASSESSEE HAD FURNISHED WRONG PARTICULA RS OF THE STOCK WITH A VIEW TO SUPPRESS THE INCOME AND, THEREFORE, WAS LIABLE TO BE PENALISED A ND THUS THE AO WAS JUSTIFIED IN LEVYING THE MINIMUM PENALTY IN VIEW OF THE SUBSEQUENT CONDUCT O F THE ASSESSEE FILING ANOTHER RETURN AND PAYING THE DUE TAX.THE HONBLE COURT RELIED UPON TH E CASE OF SURESH CHANDRA MITTAL (251ITR9). BEFORE THE HONBLE COURT IT WAS ARGUED ON BEHALF OF THE ASSESSEE,THAT THE ASSESSEE WAS ENTITLED TO FILE A REVISED RETURN IN TERMS OF SECTION 139(5) OF THE ACT AT ANY TIME AS PRESCRIBED THEREIN AND HAVING FILED THE SAME AND THE AO HAVING ACCEPTED TH E SAME THERE WAS NO ROOM TO LEVY ANY PENALTY.DISMISSING THE APPEAL,HONBLE COURT HELD AS UNDER: IN OUR VIEW,THE ASSESSING OFFICER AS WELL AS THE I NCOME-TAX APPELLATE TRIBUNAL HAVING COME TO THE CONCLUSION THAT THE ASSESSEE HAD FILED THE INIT IAL RETURN DISHONESTLY WITH A VIEW TO CONCEAL THE INCOME AND THE REVISED RETURN WAS FILED OUT OF COMP ULSION, I.E., AFTER HAVING FOUND THAT THE ASSES- SEE HAD CONCEALED THE INCOME AND FILED A FALSE RETU RN WITH A VIEW TO AVOID TAX LIABILITY,IN OUR VIEW, NO SUBSTANTIAL QUESTION/S OF LAW ARISES IN TH IS CASE EITHER IN THE MANNER FORMULATED ON BEHALF OF THE ASSESSEE IN THE MEMORANDUM OF APPEAL OR OTHERWISE..WHETHER THERE IS CONCEALMENT OF INCOME OR NOT HAS TO BE DECIDED WITH REFERENCE TO THE FACTS OF A GIVEN CASE AND THE FACT-FINDING AUTHORITIES UNDER THE ACT HAVING COME TO THE CONCLUSION THAT IN THE FACTS OF THE CASE, THE ASSESSEE HAD CONCEALED THE INCOME INITIALLY WIT H A VIEW TO AVOID THE PAYMENT OF TAX, WE ARE OF THE VIEW THAT NO SUBSTANTIAL QUESTION OF LAW IS INV OLVED IN THIS CASE REQUIRING THE ADMISSION OF THE APPEAL. CONSEQUENTLY, THE SAME IS HEREBY DISMISSED. NEXT MATTER WE WOULD LIKE TO CONSIDER IS OF K.P.SAM PATH REDDY(197ITR232),DELIVERED BY THE HONBLE KARNATAKA HIGH COURT.IN THAT MATTER THE ASS ESSEE HAD FILED A RETURN DISCLOSING AN INCOME OF RS. 11,310 FOR THE ASSESSMENT YEAR 1976-77.THERE WAS A SURVEY OF HIS BUSINESS AND IMPOUNDING OF BOOKS WHICH RECORDED SEVERAL ERRONEOU S ENTRIES. FROM THESE, ULTIMATELY, ON A ITA/8727/MUM/2011SPA 6 CONSIDERATION OF SEVERAL FACTORS, THE TOTAL INCOME FOR THE YEARS 1972-73 TO 1977-78 WAS ESTIMATED AT RS.6 LAKHS FOR THE ASSESSMENT YEAR 1976-77,THE I NCOME ALLOCATED FOR THE PERIOD WAS ARRIVED AT RS. 1,44,000/-.ON THE DATE OF THE ASSESSMENT,THE AS SESSEE GAVE A LETTER TO THE AO AGREEING TO THE TOTAL INCOME OF RS.6,00,000/-.THE AO CONCLUDED THE ASSESSMENT AND SIMULTANEOUSLY INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT,FOR CO NCEALMENT OF INCOME.SUBSEQUENTLY,PENALTY WAS LEVIED AT 100 % OF THE TAX LEVIED,WHICH WAS THE MINIMUM PENALTY LEVIABLE. THE TRIBUNAL CANCELLED THE PENALTY.ALLOWING THE APPEAL FILED BY ASSESSEE,THE HONBLE HIGH COURT OBSERVED AS UNDER : MR.CHANDERKUMAR,LEARNED COUNSEL,SERIOUSLY CHALLENG ED THE VERY BASIS OF THE APPELLATE TRIBUNAL'S ORDER.LEARNED COUNSEL POINTED OUT FROM T HE ASSESSMENT ORDER THAT THE BASIS OF THE ASSESSMENT WAS NOT THE ASSESSEE'S LETTERS,BUT THE I NFERENCES DRAWN FROM AN INDEPENDENT INVESTIGATION OF THE CIRCUMSTANCES. SRI SARANGAN, L EARNED COUNSEL FOR THE ASSESSEE, URGED THAT THE ASSESSEE AGREED TO THE ASSESSMENT AND THEREBY THE R EVENUE HAD THE BENEFIT OF NON-CONTEST OF THE ORDER BY WAY OF APPEAL, ETC., AND, THERE-FORE, PENA LTY SHOULD NOT HAVE BEEN LEVIED. WE ARE CONSTRAINED TO REJECT THE ASSESSEE'S CONTENT ION. WE ARE PAINED TO NOTE THAT THE APPELLATE TRIBUNAL COMPLETELY IGNORED THE ASSESSMENT ORDER WH ICH WAS NOT BASED ON ANY CONCESSION BY THE ASSESSEE.CONCEALMENT OF INCOME IN THE RETURN FILED BY THE ASSESSEE IS A GLARING FACT, IN THE INSTANT CASE. IT IS NOT POSSIBLE TO INFER ANY AGREEMENT BY THE REVENUE, EITHER IN CLEAR TERMS OR BY NECESSARY IMPLICATION, TO ACT ON THE BASIS OF THE A SSESSEE'S LETTER. THE ASSESSEE HAS TO THANK HIMSELF THAT THE INCOME-TAX OFFICER LEVIED THE MINI MUM PENALTY ONLY .(EMPHASIS BY US) NOW WE WOULD LIKE TO DISCUSS THE MATTER OF POPULAR LUNGHI CO.DELIVERED BY THE HONBLE HIGH COURT OF MADRAS(238ITR229).IN THAT MATTER SUBSEQUEN T TO THE COMPLETION OF ASSESSMENTS FOR THE ASSESSMENT YEARS 1967-68,1968-69 AND 1969-70, THERE WAS A SURVEY OPERATION OF THE BUSINESS PREMISES OF THE ASSESSEE U/S.133A OF THE ACT.THE RE PORTS AND DOCUMENTS FOUND DURING THE COURSE OF SURVEY ACCORDING TO THE DEPARTMENT,REVEALED THAT THE ASSESSEE WAS CARRYING ON A MONEY LENDING BUSINESS OUTSIDE ITS BOOKS OF ACCOUNT AND T HE INCOME FROM THE SAID SOURCE WAS NOT DISCLOSED IN THE ORIGINAL RETURNS FILED BY THE ASSE SSEE FOR THE SAID THREE ASSESSMENT YEARS. THE ASSESSEE CONTENDED THAT THE MATERIALS FOUND DURING THE SURVEY DID NOT REVEAL ANY SUCH INCOME FROM MONEY LENDING BUSINESS.HOWEVER, THE ASSESSEE A PPROACHED THE COMMISSIONER WITH A SETTLEMENT PETITION, STATING THAT IT WAS CARRYING O N MONEY LENDING BUSINESS FOR THE PAST THREE YEARS AND HAD NOT MAINTAINED ANY BOOKS OF ACCOUNT FOR THE MONEY LENDING BUSINESS AND THAT THE TRANSACTIONS WERE NOT ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNT IN RESPECT OF THE MONEY LENDING BUSINESS CARRIED ON BY IT. THE ASSESSEE THE REAFTER REQUESTED THE COMMISSIONER TO DIRECT THE AO TO SETTLE THE ASSESSMENT SUITABLY NOT ONLY F OR THE THREE ASSESSMENT YEARS UNDER CONSIDERATION BUT ALSO FOR SUBSEQUENT ASSESSMENT YE ARS, NAMELY, 1970-71, 1971-72, 1972-73 AND 1973-74.SINCE THE ASSESSMENTS FOR THE FIRST THREE Y EARS WERE ALREADY COMPLETED, THE AO RE- OPENED THE ASSESSMENTS FOR THE THREE ASSESSMENT YEA RS 1967-68, 1968-69 AND 1969-70 U/S.147(A) OF THE ACT. THE ASSESSEE FILED RETURNS OF INCOME FO R THE SAID ASSESSMENT YEARS ON JULY 17, 1976, DISCLOSING, INTER ALIA, THE INCOME FROM MONEY-LENDI NG BUSINESS, WHICH HAD NOT BEEN DISCLOSED IN THE ORIGINAL RETURNS FILED BY IT. THE AO ALSO LEVIE D PENALTY. THE TRIBUNAL CANCELLED THE PENALTY, ON THE GROUND THAT THERE WAS NO DIFFERENCE BETWEEN THE FACTUAL SITUATION FOUND FOR THE PRESENT THREE ASSESSMENT YEARS AND THE OTHER FOUR ASSESSMEN T YEARS FOR WHICH THE TRIBUNAL HAD ALREADY CANCELLED THE PENALTY.ON A REFERENCE,THE HONBLE CO URT HELD AS UNDER; .ADMITTEDLY, WHEN THE ASSESSEE FILED THE ORIGINA L RETURNS OF INCOME ON JANUARY 24, 1972, THE ASSESSEE HAD NOT DISCLOSED THE INCOME FROM MONEY LE NDING BUSINESS. FOR THE ASSESSMENT YEARS 1970-71 TO 1973-74 THE ASSESSEE EVEN BEFORE THE COM PLETION OF THE ORIGINAL ASSESSMENTS FOR THOSE ASSESSMENT YEARS CAME FORWARD WITH THE VOLUNTARY PE TITION DISCLOSING THE INCOME, AND, THEREFORE, ITA/8727/MUM/2011SPA 7 IT WAS HELD THAT THE ASSESSEE HAD DISCLOSED THE INC OME FROM MONEY-LENDING BUSINESS VOLUNTARILY DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEARS 1970-71 TO 1973-74. HOWEVER, FOR THE ASSESSMENT YEARS 1967-68 TO 1969-7 0 THE ASSESSEE HAD NOT DISCLOSED THE INCOME FROM MONEY-LENDING BUSINESS IN THE ORIGINAL RETURNS , AND IT WAS ONLY AFTER THE VOLUNTARY DISCLOSURE PETITION AND IN PURSUANCE OF THE NOTICE U/S.147(A) OF THE ACT, THAT THE ASSESSEE FILED ITS RETURNS AND IN THE RETURNS SO FILED IT HAD DISCLOSE D THE INCOME FROM MONEY LENDING BUSINESS. THEREFORE, THE DECISION RENDERED FOR THE SUBSEQUENT ASSESSMENT YEARS WOULD NOT APPLY. (II) THAT THE ASSESSEE HAD READILY AGREED TO THE IN CLUSION OF THE AMOUNT AS ITS INCOME AND WHEN THE ASSESSEE ITSELF HAD ADMITTED THAT IT HAD NOT DI SCLOSED THE INCOME IN THE ORIGINAL RETURNS AND NOT ACCOUNTED FOR THE SAME IN THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY IT, NO FURTHER EVIDENCE WOULD BE NECESSARY TO SHOW THAT THE AMOUNT DISCLOSE D IN THE REASSESSMENT PROCEEDINGS WAS ITS INCOME AND IT REPRESENTED ITS CONCEALED INCOME. THE TRIBUNAL HAD ALSO OVERLOOKED THAT THE AO HAD INVOKED THE EXPLANATION TO SECTION 271(1)(C) OF THE ACT, AND THE ASSESSEE HAD NOT DISCHARGED THE BURDEN CAST ON THE ASSESSEE BY THE EXPLANATION U/S.271(1)(C) OF THE ACT.THEREFORE, THE TRIBUNAL WAS WRONG IN CANCELLING THE PENALTY. 5.D. AN ANALYSIS OF ABOVE DISCUSSION LEAD US TO THE FOLL OWING GENERAL PRINCIPLES: I.) SECTION 139(5)AND SECTION 271(1)(C)OF THE ACT MEET TWO DIFFERENT SITUATIONS.THE FIRST PROCEEDS ON THE BASIS OF THE OMISSION OR WRONG STATEMENT WHI CH HAD CREPT INTO THE ORIGINAL RETURN BEING INADVERTENT AND UNINTENTIONAL,WHEREAS SECTION 271(1 )(C) PROCEEDS ON THE BASIS OF THE CONCEALMENT BEING DELIBERATE AND THE FURNISHING OF INACCURATE P ARTICULARS BEING WILFUL AND INTENTIONAL.IN OTHER WORDS,WHERE A REVISED RETURN IS FILED,THE CRUX OF T HE MATTER IS THAT IF AFTER EXAMINING THE RETURN AND THE ACCOUNTS OF THE ASSESSEE IN THE COURSE OF T HE ASSESSMENT PROCEEDINGS,THE AO DISCOVERS AN OMISSION OR WRONG STATEMENT MADE BY THE ASSESSEE AN D, THEREAFTER, A REVISED RETURN IS FILED, THEN THE ASSESSEE CANNOT BE ABSOLVED OF THE LIABILITY FO R IMPOSITION OF PENALTY U/S.271(1)(C), BUT IF THE ASSESSEE HIMSELF VOLUNTARILY FILES A REVISED RETURN BEFORE THE ORDER OF ASSESSMENT IS MADE, AFTER HE HAS HIMSELF DISCOVERED AN OMISSION OR WRONG STATEME NT IN THE ORIGINAL RETURN,THEN IN SUCH A CASE,PENALTY FOR CONCEALMENT OF PARTICULARS OF INCO ME OR FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME,AS CONTEMPLATED U/S.271(1)(C),CANNOT BE IMPOSED.151.333 II). IF THE SURVEY PROCEEDINGS SHOW STOCKS GREATER THAN THOSE DISCLOSED IN THE BOOKS OF ACCOUNTS AND THE ASSESSEE AGREES FOR ADDITION TO INCOME ON A CCOUNT OF EXCESS STOCK,PENALTY U/S. 271(1) (C) OF THE ACT IS IMPOSABLE.(266.AT45PUNE-KUNDEN SILK.) III). IF THE REVISED RETURNS IS NOT BEEN FILED VOLUNTARIL Y IN A BONA FIDE MANNER,BUT WITH A VIEW TO ESCAPE FROM THE CONSEQUENCES OF NOT FILING A PROPER RETURN,AND IN THE REPLY TO THE NOTICE U/S.271(1)(C) THE ASSESSEES DOES NOT OFFER ANY CRED IBLE EXPLANATION INDICATING THE REASONS FOR WHICH THE AMOUNT HAD NOT BEEN DISCLOSED IN THE ORIG INAL RETURN,PENALTY FOR CONCEALING THE INCOME CAN BE JUSTIFIABLY IMPOSED.HONBLE GUJARAT HIGH COU RT HAS IN THE MATTER OF MANIBHAI AND BROS.,DISCUSSED THE ABOVE PRINCIPLE AS UNDER: WHERE A REVISED RETURN IS FILED,THE CRUX OF THE MA TTER IS THAT IF AFTER EXAMINING THE RETURN AND THE ACCOUNTS OF THE ASSESSEE IN THE COURSE OF THE ASSES SMENT PROCEEDINGS,THE AO DISCOVERS AN OMISSION OR WRONG STATEMENT MADE BY THE ASSESSEE AN D, THEREAFTER,A REVISED RETURN IS FILED THEN THE ASSESSEE CANNOT BE ABSOLVED OF THE LIABILITY FO R IMPOSITION OF PENALTY U/S.271(1)(C) OF THE ACT.BUT,IF THE ASSESSEE ITSELF VOLUNTARILY FILES A REVISED RETURN BEFORE THE ORDER OF ASSESSMENT IS MADE, AFTER HE HAS HIMSELF DISCOVERED AN OMISSION O R WRONG STATEMENT IN THE ORIGINAL RETURN,THEN IN SUCH A CASE,PENALTY FOR CONCEALMENT OF PARTICULA RS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME,AS CONTEMPLATED U/S.271( 1)(C),CANNOT BE IMPOSED. (294ITR105) V). LEVY OF PENALTY FOR CONCEALMENT OF INCOME IS JUSTIF IED IN A CASE WHERE A BOGUS CLAIM FOR DEPRECIATION ON NON-EXISTING ASSETS IS MADE AND LAT ER ON CLAIM IS WITHDRAWN IN THE REVISED AFTER A ITA/8727/MUM/2011SPA 8 SEARCH IS CARRIED OUT IN THE CASE OF THE ASSESSEE.( 300 ITR 342). 6. COMING TO THE FACTS OF THE CASE BEFORE US,IT IS FOU ND THAT THE ASSESSEE HAD FILED THE REVISED RETURN ONLY AFTER THE SURVEY ACTION,THEREFORE,IT CA NNOT BE HELD THAT IT WAS A VOLUNTARY RETURN.IT IS NOT THE CASE OF THE ASSESSEE THAT THERE WERE BONAFI DE MISTAKES IN THE ORIGINAL RETURN FILED BY HIM THAT WERE INTENDED TO BE RECTIFIED BY THE REVISED R ETURN.DURING THE COURSE OF SURVEY,IT WAS NOTICED BY THE DEPARTMENT THAT THE ASSESSEE HAD ACCEPTED BR OKERAGE/ COMMISSION IN CASH, AND WHEREEVER THE CUSTOMERS HAD NOT INSISTED ON RECEIPT S FOR PAYMENTS NO RECEIPTS WAS ISSUED, THAT SUCH INCOME HAD NOT BEEN ACCOUNTED FOR AS INCOME IN THE BOOKS OF ACCOUNT.WHEN THE ASSESSEE WAS CONFRONTED WITH THESE FINDINGS,HE FILED A REVIS ED RETURN OF INCOME.IN OUR OPINION,FILING OF SUCH A RETURN,CANNOT BE TERMED VOLUNTARY FILING OF RETURN.WE ALSO FIND THAT THE REBUTTAL OF THE ASSESSEE IS NEITHER RELEVANT MATERIALS AND NOT COGE NT.AFTER CONSIDERING THE RELEVANCY AND SUFFICIENCY OF THE MATERIALS WE HOLD THAT THAT THE OMISSION OR WRONG STATEMENT BY THE ASSESSEE IN THE ORIGINAL RETURN WAS NOT DUE TO ANY BONA FIDE OR INADVERTENT MISTAKE ON HIS PART. AO HAD NOT ONLY ARRIVED AT THE CONCLUSION THAT THE EXPLANATION FILED BY THE ASSESSEE WAS NOT BONA FIDE,BUT HE ALSO HELD,AS A FACT,THAT THE ASSESSEE HAD NOT DISCLOSED ALL THE FACTS WHICH WERE MATERIAL FOR THE COMPUTATION OF ITS INCOME.IN THE C ASE UNDER CONSIDERATION THERE IS PROPER APPLICATION OF MIND ON PART OF THE AO AND THERE IS RECORDING OF AN OPINION ON HIS PART THAT A CASE FOR INITIATION OF PENALTY PROCEEDINGS WAS MADE AS T HERE WAS FURNISHINGOF INCORRECT PARTICULARS BY THE ASSESSEE,WITH AN INTENTION TO AVOID PAYMENT OF TAX.WE ARE AWARE THAT THERE IS A DISTINCTION BETWEEN FURNISHING OF WRONG PARTICULARS AND MAKING A WRONG CALCULATION ON THE BASIS OF THE PARTICULARS FURNISHED AND A MISTAKEN CALCULATION IS DISTINCT FROM CONCEALMENT.THE MATTER BEFORE US,IS NOT OF CALCULATION-MISTAKE,BUT OF FURNISHING OF INACCURATE PARTICULARS.THE ENTIRE CHRONOLOGY OF EVENTS IS NOT CAPABLE OF BEING REGARDED AS AN IN NOCENT ACT.THERE EXISTED AN INTENT TO PREVENT RELEVANT FACTS FROM BECOMING KNOWN.THE ASSESSEE,CER TAINLY DOES HAVE A DUTY TO VERIFY THE PARTICULARS FURNISHED BY HIM ARE ACCURATE.IF ALL TH E CIRCUMSTANCES AND DEVELOPMENTS TILL THE ASSESSMENT IS COMPLETED ARE TAKEN INTO CONSIDERATIO N,THEIR COLLECTIVE EFFECT SHOW THAT THE REVISED RETURN WAS FILED ONLY AFTER THE EVIDENCES FOR FILIN G INACCURATE PARTICULARS WERE DETECTED.WE ALSO FIND THAT THE AO HAD HELD THAT COMMISSION/BROKERAGE INCOME OF RS.39.12 LAKHS WERE NOT OFFERED FOR TAXATION FOR THE YEAR UNDER CONSIDERATION.THOUG H,THE ASSESSEE HAD OFFERED ADDITIONAL INCOME OF RS.75LAKHS,YET THE AO DID NOT INITIATE PENALTY F OR THE SAID AMOUNT.HE FOUND FROM THE BOOKS OF A/CS.THAT THE ASSESSEE HAD NOT DISCLOSED INCOME,AMO UNTING TO RS.39,12,752/-IN HIS RETURN OF INCOME.AFTER CONSIDERING THE EXPLANATION OF THE ASS ESSEE,HE FINALISED THE ASSESSMENT AND LEVIED PENALTY.THE ONLY ARGUMENT OF THE AR WAS FILING OF R EVISED RETURN.THE FAA HAS IGNORED THE FACT THAT THE ASSESSEE WAS COMPELLED TO FILE REVISED RET URN BECAUSE OF THE INCRIMINATING MATERIAL FOUND DURING THE SURVEY CONDUCTED AT HIS BUSINESS PREMISE S. AS FAR AS MATTER OF SAS PHARMACEUTICALS(SUPRA)IS CO NCERNED IT THAT CASE RETURN WAS NOT DUE AND THE ASSESSEE HAD OFFERED THE ADDITIONAL INCOME FOR THAT YEAR WHEN HE HAD FILED THE RETURN.IN THE CASE UNDER CONSIDERATION,ORIGINAL RETURN HAD ALREAD Y BEEN FILED.IN THE CASE OF RELIANCE PETRO PRODUCTS (SUPRA),HONBLE APEX COURT HAD HELD THAT N O INFORMATION GIVEN IN RETURN FOUND TO BE INCORRECT, THAT FOR THAT REASON PENALTY COULD NOT B E LEVIED U/S.271(1)(C)OF THE ACT.IN THE CASE BEFORE US,FACTS ARE TOTALLY DIFFERENT.THE ASSESSEE NOT DISCLOSED A PART OF HIS INCOME,WHILE FILING HIS RETURN AND IT WAS ONLY AFTER THE SURVEY THAT HE REVISED THE RETURN.IN SHORT ,IF THE ENTIRETY OF CIRCUMSTANCES IS TAKEN INTO CONSIDERATION AND THE C ONDUCT OF THE ASSESSEE FROM THE INCEPTION TO THE CONCLUSION OF THE ASSESSMENT PROCEEDINGS IS VIE WED,IT CAN SAFELY BE SAID THAT AN INTENTION OF CONCEALMENT OF TRUE PARTICULARS OF INCOME OR DELIBE RATE FURNISHING OF INACCURATE PARTICULARS BY THE ITA/8727/MUM/2011SPA 9 ASSESSEE WAS ESTABLISHED BY THE AO.IN THIS MATTER T HE AO HAD NOT ACCEPTED ANY CONDITIONAL ADMISSION,RATHER HIS ORDER IS BASED ON FACTS RELEVA NT FOR THE YEAR UNDER APPEAL.THEREFORE, REVERSING THE ORDER OF THE FAA,WE DECIDE THE EFFECT IVE GROUND OF APPEAL IN FAVOUR OF THE AO. 5)6 () * & 7 & ) 89 . ORDER PRONOUNCED IN THE OPEN COURT ON 1ST AUGUST,2014 . 4 & +,! : ; 1 VXLRK VXLRK VXLRK VXLRK , 201 4 , & 3 < SD/- SD/- ( . . / I.P. BANSAL) ( / RAJENDRA) / JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI, ; /DATE: 01.08 . 2014. SK 4 4 4 4 & && & $)= $)= $)= $)= >=!) >=!) >=!) >=!) / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / '# 2. RESPONDENT / $%'# 3. THE CONCERNED CIT(A)/ ? @ , 4. THE CONCERNED CIT / ? @ 5. DR E BENCH, ITAT, MUMBAI / =A3 $) , . . . 6. GUARD FILE/ 3 5 %=) %=) %=) %=) $) $)$) $) //TRUE COPY// 4 / BY ORDER, B / 8 DY./ASST. REGISTRAR , /ITAT, MUMBAI