TMI Blog1989 (11) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Department carried out a survey operation in the business premises of the appellant on 29th Sept., 1986 and found (i) the stock of Rs. 3,13,879; (ii) cash in hand on the date of survey of Rs. 22,000 (iii) security deposit of Rs. 15,000 and (iv) investment ih house construction at Talcher valued on the spot at Rs. 80,000. The total assets found were of the value of Rs. 4,30,879. 4. The appellant had disclosed the opening capital at Rs. 77,130 as on 1st April, 1986. The appellant's statement was recorded under s. 133A(3) of the IT Act. The appellant offered investment of Rs. 2,88,000 for taxation on 30th Sept., 1986 spreading over in asst. yr. from 1978-79 and 1986-87. The appellant filed the revised returns showing additional income to accept the same under Amnesty Scheme. 5. The ITO did not accept the appellant's disclosure under Amnesty Scheme. According to him the appellant came forward under the Amnesty Scheme after the action under s. 133A was taken. Therefore, the ITO refused to extend the benefit of Amnesty Scheme and completed the assessments under s. 143(3) of the IT Act read with s.147. He charged the interest as well as initiated the penalty proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here should have been lesser burden of tax and, therefore, selected to spread over the income. But in fact that was not going to benefit him. In this view of the matter the admission of the appellant should not be interpreted against his interest. A question raised by the CIT(A) is that whether the appellant is entitled to the benefit of Amnesty Scheme. Raising this question is a proper one and requires to be decided correctly by taking into consideration the action of disclosing under Amnesty Scheme and an explanation furnished by the appellant. 8. There is no doubt that Amnesty Scheme was originally to expire on 30th March, 1986. It was subsequently extended on 30th Sept., 1986. The survey operation took place on 29th Sept., 1986 and the assessee filed the Amnesty Returns on 30th Sept., 1986. There is no doubt that the assessee has filed the Amnesty Returns on the next day of survey operation. But nothing prevents the assessee to wait to file the Amnesty Returns till the last date, i.e., 30th Sept., 1986. Much is made out for filing the Amnesty Returns on 30th Sept., 1986, i.e., next day after the survey operation. 9. The CIT(A) has considered that the spread over of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the survey operation on 29th Sept., 1986. To presume something out of the contingent act would not be a proper inference. Therefore, it would not be out of context to consider here that even if the survey operation would not have taken on 29th Sept., 1986 and if the assessee would have voluntarily disclosed the income under Amnesty Scheme on 30th Sept., 1986 then nothing would have been attributed to the assessee except accepting the disclosure. Therefore, there is considered substance in the contention put forward on behalf of the appellant that the appellant had an intention to disclose voluntarily under Amnesty Scheme on 30th Sept., 1986 and it was a co-incidence that he had to disclose after the survey operation. If this is to be read together what is required is not to make out much out of the conduct of the appellant. 12. Secondly, the appellant has not challenged the valuation of the stock and merely accepted the same. That point also requires to be considered in a correct perspective. If the value of the stock would have been reduced under challenge then there was quite possibility to adjust balance of opening capital. The learned Advocate, Sri D.K. Sheth, had relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income by the appellant. There is no doubt about it. Somebody's admission need not to be utilised to punish him. Judicial process requires to utilise the admission also in a fair and judicious manner. Sri Kanungo has tried to justify the order of imposing of penalty as well as confirmation of the same. According to him, it is sufficient to prove that the appellant's default in non-compliance of the statute requires imposition of penalty. It is not necessary to prove mens rea. He relied on the judgment of the Supreme Court in the case of GUJARAT TRAVANCORE AGENCY vs. CIT (1989) 77 CTR (SC) 174 on this point. Sri Kanungo contended that under no circumstances the original returns of income filed by the appellant can be ignored. In support of this contention he has relied on the judgment of the Punjab Haryana High Court in the case of CIT vs. DR. SAJJAN SINGH MALLICK (1989) 178 ITR 643 (P H). 15. According to Sri Kanungo filing of the revised returns under Amnesty Scheme does not help the appellant. He has contented that the assessee has not discharged the burden cast upon him and relied on the judgment of the Supreme Court in the case of CIT vs. MUSSADILAL RAMBHAROSE (1987) 60 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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