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2013 (11) TMI 1375 - MADRAS HIGH COURTCash found during search – Penalty u/s 271(1)(c) - Held that:- Following Union of India and Ors vs. Dharmendra Textiles Processors & Ors., [2008 (9) TMI 52 - SUPREME COURT] [2008] 306 ITR 277 – There has to be concealment of the particulars of the income of the assessee and the assessee must have furnished inaccurate particulars of his income - Mere making of a claim, which is not sustainable in law, by itself, would not amount to furnishing of inaccurate particulars regarding the income of the assessee. There was a mistake in the entries regarding the sale of flats to J.B. Exports and the assesee also filed copies of the entry register in respect of two flats and also in respect of other similar flats sold to other parties - Even purchaser (J.B.Exports) produced the documents before the AO - On examining the documents it was found that no "on-money" was paid to the assessee - Following Mak Data P. Ltd., vs. Commissioner of Income Tax-II [2013 (11) TMI 14 - SUPREME COURT] - When a difference is noticed by the Assessing Officer between the reported and assessed income - The burden is then on the assessee to show otherwise, by cogent and reliable evidence and when the initial onus placed by the explanation, has been discharged by the assessee, the onus shifts on the Revenue to show that the amount in question constituted their income and not otherwise – In the present case the onus cast upon the assessee has been discharged by giving a cogent and reliable explanation - If the department did not agree with the explanation, then the onus was on the department to prove that there was concealment of particulars of income or furnishing inaccurate particulars of income - Such onus which shifted on the department has not been discharged – Decided against Revenue.
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