TMI Blog1996 (9) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... : " Income --------------------------------------------------------------------------------------------------------------------------------------------- Asst. Originally Addl. income Total income Finally year assessed shown in disclosed assessed Amnesty Scheme under Amnesty Scheme ------------------------------------------------------------------------------------------------------------------------------------------------ (1) (2) (3) (4) (5) -------------------------------------------------------------------------------------------------------------------------------------------------- 1979-80 23,910 29,506 53,416 56,416 1980-81 21,250 13,965 35,215 40,250 1982-83 27,900 45,763 73,663 86,882 1983-84 27,180 9,850 37,030 40,210 1984-85 28,537 7,271 35,808 38,990 1985-86 30,000 33,424 63,424 64,740 1986-87 --- --- 69,890 79,000 " -------------------------------------------------------------------------------------------------------------------------------------------------- 3. It may also be stated that the assessments for the first six assessment years were originally completed on the basis of the returned incomes but "revised" subsequently on 21-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought forth incriminating papers and documents as also a diary which revealed investments in NSCs and FDRs by the assessee and her family members. Being aggrieved, the assessee preferred appeals to the first appellate authority and as already stated by me earlier, one set of appeals came before the DC(A) who confirmed the view taken by the ITO whereas for the assessment year 1986-87, the CIT(A) cancelled the penalty on the following lines : " 8. I have carefully considered the submissions of the counsel. It is true that survey was conducted in the premises of the appellant and certain incriminating papers were found by the Department and the Department contemplated action under section 148. It is also true that the appellant filed revised return to obtain the benefit of Amnesty Scheme on 21-1-1987. It is again true that the Amnesty Scheme was extended up to 31-3-1987. Thus, the revised returns were filed well within the time when Amnesty Scheme and had its way. The returns thus filed were wrongly treated as late. They were not late at all (Circular No. 472 refers). I have again gone through the appellate order passed by the DC(A), Bareilly and I find that he dismissed all the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that penalty of concealment in the case of the appellant is not justified. Lenient view warrants that the penalty imposed by the Assessing Officer must be cancelled. I accordingly cancel the same. " 6. As both the parties are in appeal in respect of the two sets of orders passed by the first appellate authority, the following arguments set out their respective stand before the Tribunal. The learned counsel for the assessee asserted that the returns for the various assessment years were filed under the Amnesty Scheme, no doubt, after the survey under section 133A but according to him, nothing had been unearthed during the course of the survey and more so when the subsequent notices issued under section 148 were only meant to regularise the returns already filed. As regards assessment year 1986-87, the learned counsel stated that it was the case of an original return filed by the assessee. The learned counsel admitted that there were certain variations between the incomes shown in the revised return as also the income shown in the original return for the assessment year 1986-87 but these according to him were nominal and not in the realm of concealed income. By reference to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additions made to the returned income did not necessarily attract penalty proceedings as also the non-specification of the relevant clause of section 271(1)(c) in the penalty notices by the ITO vitiated the proceedings. Further penalty proceedings were separate and distinct from quantum proceedings. According to him, the penalties were even required to be cancelled on these two grounds although he reiterated his main argument for treatment of the returns filed pursuant to the survey as returns under the Amnesty Scheme. In support of the aforesaid arguments, the learned counsel placed reliance on the following decisions :--- (1) Navnitlal K. Zaveri v. CIT [1980] 125 ITR 385 (Guj.), (2) Radhey Shyam Chandrika Prasad v. CIT [1983] 139 ITR 274 (All.), (3) A.N. Sarvaria v. CWT [1986] 158 ITR 803 (Delhi),and (4) CIT v. Dharamchand L. Shah [1993] 204 ITR 462(Bom.). 9. The learned D.R., on the otherhand, strongly supported the consolidated order passed by the DC(A) vis-a-vis the appeals filed by the assessee and supported by the order of the Assessing Officer in respect of assessment year 1982-83 since this was the year is which the revenue was in appeal before the Tribunal. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment years 1979-80 to 1985-86 had already been completed earlier. However, these were later on taken up for reassessment after issue of notice under section 148 of the I.T. Act, 1961 and the appellant availed of benefits of the Amnesty Scheme. It has also been submitted that as per the provisions of Amnesty Scheme, interest were not to be charged. Besides these cases were not regular assessments and have been completed under section 148 of the I.T. Act, 1961. Therefore, interest are not to be charged. 2. I have considered the submissions made and agreeing with the same I delete the interest charged by the Assessing Officer for assessment years 1979-80, 1980-81, 1982-83, 1983-84, 1984-85 and 1985-86. " 12. I have mentioned in the earlier part of my order that the appeals filed by the revenue against the aforesaid relief allowed were rejected by the Tribunal whereas the quantum appeal for the assessment year 1986-87 which was rejected by the DC(A) by means of the same consolidated order came to be allowed by the Tribunal vide ITA No. 3230/Delhi/90, dated 6-1-1992 supra. 13. It would be quite appropriate on my part to maintain consistency with the orders passed by the Tribunal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings. 15. In the present case some of the revised returns were filed by the assessee prior to the issue of notice under section 148 whereas some of these were filed after the issue of said notice. No material has been cited or brought on record by the revenue either in the assessment proceedings or in the appellate proceedings including those before the Tribunal now which would go to show that the survey brought forth such type of evidence and material which conclusively proved concealment on the part of the assessee since a mere belief does not amount to detection of concealment. The reasons which have been recorded at the time of reopening under section 148 for some of the assessment years have not been highlighted or referred to in the orders of the tax authorities and neither have these been shown to the Tribunal on behalf of the revenue by the learned D.R. Then again, the variations in the incomes shown in the revised returns for various years as also the income shown in the original return for the assessment year 1986-87 are either on account of estimating the professional income or making certain disallowances out of interest and for some of the years cash credits ..... 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