TMI Blog1993 (12) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 139(2), the assessee filed his return of income on24th September, 1985at Rs. 78,950 including a sum of Rs. 61,000 offered as his taxable income for the relevant previous year. The assessment was framed at Rs. 79,280, the difference of Rs. 330 being on account of difference in balance sheet and charity. 3. The Assessing Officer noted that the assessee had surrendered the sum of Rs. 61,000 as his income in the return consequent to a survey conducted at the business premises of the assessee on 28-1-1985 under section 133A when excess stock of Rs. 28,902 was found as also the assessee had made an investment of Rs. 22,161 in the purchases made outside books of account and further the assessee had also purchased a scooter during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to buy peace with implied approval and understanding with the Assessing Officer that no penalty would be levied. The assessee also submitted that the survey was conducted on 28th January, 1985 while the return for the relevant previous year ending on31st March, 1975had not become due. He also submitted that there was no question of concealment of any income since no addition stood made to his returned income. He also invited the attention of the learned CIT(A) to the judgment of the Honble Supreme Court in the case of Brij Mohan v. CIT [1979] 120 ITR 1 and a few orders of the Tribunal. According to Shri Sampath, the authorities below arbitrarily rejected the assessee's explanation that no penalty was leviable. Shri Sampath also took us thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that Explanation 5 comes into play only when action under section 132 is taken and it was wrong on the part of the learned CIT(A) to make no distinction between the provisions of sections 132 and 133A of the Act. He also invited our attention to the Order of the Tribunal in the case of ITO v. Sushil Kumar Mittal [IT Appeal No. 5211 (Delhi) of 1989] for assessment year 1985-86 and order for assessment year 1982-83 in the case of Asstt. CIT v. Kala Vastra Niketan [IT Appeal No. 5105 (Delhi) of 1989 dated18-3-1991]. Shri Sampath submitted that no penalty was exigible. 6. The learned DR supported the order of the Assessing Officer and submitted that but for the survey the assessee would have not surrendered the amount of Rs. 61,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are no such facts on record. On the contrary, the accepted fact is that the returned income has been accepted. The mere fact that a survey took place in January 1985 and the assessee in his return for the relevant previous year ending on31-3-1985voluntarily offered some amount as his income would not per se lead to the charge of concealment being proved automatically by the revenue. There may be hundred and one reasons with the assessee to offer the amount as his income but that by itself would not mean that the assessee automatically comes into the net of section 271(1)(c) (See Sir Shadilal Sugar General Mills Ltd. v. CIT [1987] 168 ITR 705 (SC). There is no presumption of concealment unless positively established. The question of conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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