TMI Blog2003 (1) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... t of particulars of income of Rs. 68,411 representing the following unexplained items: (i) Rs. 20,911 unexplained cash seized. (ii) Rs. 40,000 unexplained marriage expenses. (iii) Rs. 7,500 unexplained investment in furniture. 4. During the course of search operation, statement of the assessee was recorded under s. 132(4) wherein he had admitted to have saved the cash out of undisclosed income as well as expenses incurred on marriage and investment made in furniture and showed his willingness to pay the tax. 5. Against the order passed under s. 132(5) by the ITO, the assessee had preferred an appeal before the CIT who passed an order under s. 132(12) on 5th Jan., 1989, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The learned Authorised Representative made the following submissions: (i) The appellant had filed a return of income showing Rs. 93,000 on 30th March, 1988 and subsequently revised return was filed on 17th Jan., 1989, declaring total income of Rs. 90,900. The Asstt. CIT had accepted the revised return and assessment was made on an income of Rs. 90,501. (ii) The total income assessed at Rs. 90,501 includes Rs. 68,411 which had already been surrendered by the appellant during the course of search and Asstt. CIT mentioned the income from undisclosed source as per CIT, Jodhpur order under s. 132(12) dt. 5th Jan., 1989. (iii) The appellant had agreed for such surrender with the condition that no penalty should be imposed on such surrend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection was not completed in time, assessee filed revised return and assessment was framed more or less on the basis of revised return, penalty was cancelled. 10. The learned Authorised Representative also invited the attention of this Bench to sub-s. (2) of s. 274 and submitted that the AO has not obtained the prior approval of the Dy. CIT/Jt. CIT for levying penalty under s. 271(1)(c) of the Act as the amount of penalty exceeded Rs. 20,000. He contended that even for passing the order under r. 68 of CCS Pension Rule, 1972 it is necessary to obtain prior approval of the Secretary of the Department. The AO has not mentioned this fact of obtaining prior approval of the Jt. CIT. Therefore, the penalty levied under s. 271(1)(c) of the Act des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after that amount has been seized cannot be said that assessee has voluntarily disclosed the concealed income. After insertion of Explanation to s. 271(1)(c), the requirement that Department should established that there has been a conscious concealment of particulars of income or a deliberate failure to furnish accurate particulars, is also no longer necessary. After this amendment the theory of deemed concealment has been brought in. In case addition is made and the explanation submitted by the assessee is not satisfactory, income added should be treated as deemed concealment." The judgments reported in : Addl. CIT vs. Jeevanlal Sah (1994) 117 CTR (SC) 130 : (1994) 205 ITR 244 (SC), CIT vs. Mussadilal Ram Bharose (1987) 60 CTR (SC) 34 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the learned Authorised Representative submitted that no prior approval was obtained by the AO under s. 274(2) for levy of penalty under s. 271(1)(c) exceeding Rs. 20,000. Therefore, the penalty deserves to be cancelled. 14. From perusal of the order of the AO, we find that the fact of obtaining prior approval of the Jt. CIT had not been mentioned in the order and the Senior Departmental Representative expressed his inability to produce the order of the Jt. CIT regarding his prior approval. 15. We find that sub-s. (2) of s. 274 of the Act lays down a procedure of obtaining prior approval of the Jt. CIT for levying penalty under s. 271(1)(c) of the Act where the amount of penalty exceeds Rs. 20,000. In this case, the AO imposed penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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