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2008 (1) TMI 470 - AT - Income TaxPenalty imposed under s. 271(1)(c) - Surrender the amount voluntary considered as concealment of income and furnishing wrong statement? - onus to prove - HELD THAT:- In our view, the onus was on the Department to prove that the assessee had concealed his particulars of income and furnished wrong statement and burden shifts to the assessee only if the assessee fails to offer any explanation for the undisclosed income or offers an explanation which is found to be false by the AO. In the instant case, there is no discussion in the assessment order or penalty order that the assessee had concealed the particulars of income and furnished wrong statement with mala fide intention to evade tax or the explanation given by the assessee was not bona fide or false. Thus, it is not a fit case for imposition of penalty, because the concealment of income and furnishing wrong statement are not found to be established from the material on record and there is no material on record to prove that the assessee had concealed his income and furnished wrong statement. We may also add here that the surrender made by the assessee was voluntary and the Department failed to detect any concealment of income. Thus, the penalty levied by the AO and confirmed by the CIT(A) is not sustainable in law and, therefore, we cancel the same. In the result, the appeal is allowed.
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