TMI Blog2014 (10) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... notices calling for the explanation of the assessee, but no reply was filed - the AO was already having information with him through AIR information and the details called for u/s. 133(6) of the IT Act that the assessee has maintained two unaccounted bank accounts with ING Vaishya Bank Ltd. The assessee did not explain source of entries in the same bank accounts and statutory notices remained un-complied and it is only on 17.09.2009 just prior to completion of assessment, the assessee’s counsel replied that earlier no compliance could be made on account of slackness of the counsel to whom notice was handed over and the details of bank account could not be obtained - The assessee in the same reply surrendered as additional income on account of peak credit in these bank accounts - The assessee also filed revised income computation chart and requested the AO that the return filed originally may be treated as revised accordingly - The course of action adopted by the assessee is not permissible under law - There is no provision under law to file revised income computation chart without actual filing of revised return of income within the period of limitation in accordance with law - the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The details of the same are noted in the assessment order. The assessee s counsel lately appeared on 17.09.2009, few days prior to the completion of assessment and submitted that earlier no compliance could be made on account of slackness of the counsel for the assessee to whom notices were given and he could not collect the bank statements from the bank authorities. In the same reply, the assessee surrendered the income of ₹ 2,05,070/- from other sources and taking into consideration the peak credits in both these bank statements. The assessee also filed revised income computation chart with the request that return filed be treated as revised accordingly. The taxes were paid. The AO accordingly computed the income of the assessee at ₹ 3,13,470/- by making addition of ₹ 2,05,070/-. The AO initiated the penalty proceedings u/s. 271(1)(c) of the IT Act for concealment of income to that extent. 4. The AO in the penalty order also mentioned the same facts and issued show cause notice before levy of penalty as to why penalty should not be imposed for concealment of income as discussed in the assessment order dated 29.09.2009. The assessee did not file any reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentatives of both the parties, perused the findings of authorities below and considered the material available on record. 5.1 It is admitted fact that the bank account in question with ICICI Bank Ltd., Sanjay Place, Agra was concealed by the assessee from the Revenue Department. It is the Assessing Officer, who has obtained details from this bank otherwise, the details would not have come on record of the Revenue. The assessee in his initial reply to the notice issued by the AO deliberately did not disclose the bank account maintained with ICICI Bank Ltd. and replied before the AO that he has maintained only one bank account in bank of Bikaner Jaipur. The AO again confronted the details collected from ICICI Bank Ltd. to the assessee through show cause notice and cornered the assessee that the assessee has maintained unaccounted bank account with ICICI Bank Ltd. The assessee on confronting the details and cornered by the AO had no option but to admit the unaccounted bank account with ICICI Bank Ltd. No source of the deposits or why this bank account was concealed from the department was not at all explained at any stage. There is, therefore, no question to disclose unaccounte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f purchase and sale of shares sold with a copy of bill of broker, justify holding of shares, which were sold, year-wise investment in the house property, valuation report of the approved valuer, confirmation of salary received from the company and other documents. The assessee did not furnish full details. His statement that the shares had been sold through the Delhi Stock Exchange was found to be false. The assessee was directed to furnish reply in terms of the order dated November 9, 2006. He was further directed to furnish the name of the stock exchange through which shares were purchased and sold, rate of shares in the stock exchange on date of purchase and sale on or before December 6, 2006. On December 6, 2006, the assessee surrendered the entry appearing in his bank account on sale of shares amounting to ₹ 61,35,844 on agreed basis. The Assessing Officer treated the sum of ₹ 61,35,844 as income from undisclosed sources under section 69A of the Income-tax Act, 1961, and also levied penalty. The Commissioner (Appeals) cancelled the penalty and this was confirmed by the Tribunal. On appeal to the High Court: Held, allowing the appeal, that the assessee had concea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied penalties. Successive appeals filed by the assessee before the Commissioner (Appeals) and the Tribunal were dismissed by the two appellate authorities confirming the penalties levied by the Assessing Officer. However, the Tribunal came to the conclusion that the assessee had co-operated in finalisation of the assessment and accepted the assessment of additional income and so, the Tribunal reduced the penalty levied from the maximum to the minimum. On a reference: Held, that it was only after the statement of the chairman and managing director was recorded by the Deputy Director of Income-tax (Investigation Mumbai, that the first disclosure dated October 20,1988, ₹ 54,71,463 was made accompanied by another disclosure of ₹ 54 lakhs in a round figure being divided into three segments of ₹ 18 lakhs each for assessment yean 1986-87, 1987-88 and 1988-89. The revised return declaring a sum of ₹ 78,56,613 came about as a consequence of follow-up proceedings undertaken by the Deputy Director of Income-tax in relation to the other three suppliers, viz., SC, NB and NPST. Therefore, the assessee could not be stated to have voluntarily come forward to disclose inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articulars of income or furnishing inaccurate particulars of income. Therefore, conditions of section 271(1)(c) are not satisfied. He has relied upon the decision of Hon ble Gujrat High Court in the case of New Sorathia Engineering Co. vs. CIT, 282 ITR 642, in which it was held that order of penalty must clearly state whether it is for concealment or for furnishing inaccurate particulars. The AO in the quantum order has specifically mentioned that he was satisfied that the assessee has concealed the particulars of his income. In para 9 of the penalty order also the AO after discussing the merits of the addition has held that assessee has willfully concealed the particulars of his income. The AO also held that Explanation 1(A) of section 271(1)(c) is also squarely applicable in the case of assessee and in fact the explanation offered by the assessee was found to be false. The findings of the AO in the quantum and penalty order, thus, clearly reveal that the AO has specifically held that the assessee has willfully concealed the particulars of income and Explanation 1 (A) to section 271(1)(c) squarely applies in the case of assessee. We may note here that Explanation 1(A) to section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, i.e., 100% or 300%, but at the end of the order, he has imposed 200% penalty against the assessee without giving any reasons. It is a case where the assessee admitted unaccounted bank account and unaccounted income has been assessed against the assessee, which have not been challenged before any appellate authorities and that when the same bank account has come on record, we are of the view that it may not be a case of levy of maximum penalty or at least 200% penalty. The interest of justice requires that minimum penalty at the rate of 100% may be levied in this case. We accordingly modify the orders of the authorities below to the extent only that AO will levy minimum penalty at the rate of 100% at ₹ 2,32,058/- as against ₹ 4,64,116/-. The appeal of the assessee on this point is allowed partly. 7. Considering the above discussion, the appeal of the assessee is dismissed on merits. However, penalty is reduced to minimum penalty at the rate of 100% as held above. 7.1 The facts of this case are very specific that the assessee filed return of income at ₹ 1,08,400/- and such return of income was filed on 11.09.2007. The case was selected for scrutiny on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be added here that the AO did not accept any surrender of income as per revised computation of income because the AO computed the income as per return of income filed on 11.09.2007, in which such entries in the bank accounts were concealed and the AO after making addition of ₹ 2,05,070/- computed the total income at ₹ 3,13,470/-. We may also add here 13 that the AO in the assessment order has specifically mentioned that he was satisfied that the assessee has concealed income to the tune of ₹ 2,05,070/-. The AO also in the penalty order has specifically mentioned that show cause notice was issued prior to levy of penalty for concealment of income to the tune of ₹ 2,05,070/- and the assessee was show caused as to why penalty be not imposed for concealment of income. Therefore, clear cut finding has been given in the assessment order as well as in the penalty order that penalty is imposed for concealment of income. Further, at the penalty stage, the assessee admittedly did not file any explanation to the show cause notice issued by the AO. Hon ble M.P. High Court in the case of Rukmini Bai 276 ITR 650 has held as under: Held, rejecting the application, that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
