TMI Blog2003 (7) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... sment, the assessee showed net profit of Rs. 6,64,802. A survey was conducted in the business premises of the assessee under s. 133A of the Income-tax Act, 1961 (hereinafter referred to as the "Act"), on29th Nov., 1994. The assessee surrendered a sum of Rs. 22 lacs on account of excess stock found and on account of expenditure incurred in the furniture, fixture and renovation of the shop. The AO made an addition of Rs. 22 lacs on account of income surrendered on28th Nov., 1994. He also initiated penalty proceedings under s. 271(1)(c) of the Act. 5. During penalty proceedings a show-cause notice was issued. In reply dt.20th July, 1998, the assessee submitted that the penalty was not imposable. However, the AO rejected the reply and held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f charging the assessee with the act of concealment or that matter, with furnishing of inaccurate particulars of income was the return. The return filed in the instant case was not even a revised return. For establishing concealment in a case, it is necessary that a return of income was filed and that the income concealed was omitted from being included in the income returned. There are no such facts in the instant case. Therefore, the question of concealment in the appellant s case does not arise as the assessee itself offered the amount of Rs. 22,00,000 in the return of income. Therefore, the AO was not justified in initiating penalty proceedings and levying penalty under s. 271(1)(c) of IT Act. The above view is supported by the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted under s. 133A of the Act and in the computation of taxable income the amount of Rs. 22 lacs offered on 28th Nov., 1994, was duly indicated under the head "Profits and gains of business". A copy of this computation has been filed in the paper book before us. It is true that the assessee had surrendered this amount of Rs. 22 lacs during the course of survey but it could not be said that in the computation of income filed along with the return the amount was concealed or was not shown. It is not the case of the Department that the surrender was made after filing of the return. In the case of CIT vs. Amalendu Paul (1983) 34 CTR (Cal) 174 : (1984) 145 ITR 439 (Cal), it was held by the Hon ble Calcutta High Court that onus of proving that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty. The Hon ble Calcutta High Court upheld the order of the Tribunal by placing reliance on the ratio of decision of Hon ble Supreme Court in the case of CIT vs. Anwar Ali (1970) 76 ITR 696 (SC) and on the decision of Calcutta High Court in the case of CIT vs. Sarda Rice Oil Mills (1979) 117 ITR 917 (Cal). It was observed that the onus of proving that the assessee concealed particulars of his income was on the Revenue and the failure to prove a particular item would not ipso facto prove concealment in penalty proceedings. 11. In the present case also the assessee had surrendered the amount during survey proceedings and that too with the condition only to make up the discrepancy in the stock. 12. It may be pointed out that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed by the CIT(A), was cancelled by the Tribunal. On reference, the Hon ble High Court upheld the view taken by the Tribunal. It may be pointed out that the Departmental appeal has since been dismissed by the Hon ble Supreme Court in CIT vs. Suresh Chand Mittal (2001) 170 CTR (SC) 182 : (2001) 251 ITR 9 (SC). In the present case also, in our view, the burden, which lay upon the Department, has not been discharged. 15. It may further be pointed out that the penalty order is not sustainable on the ground that the AO has not recorded his satisfaction before initiating the penalty proceedings. It is clear from the copy of assessment order filed before us. In this order there is no observation to the effect that the assessee had conceale ..... X X X X Extracts X X X X X X X X Extracts X X X X
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