TMI Blog1990 (8) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-79 12,940 1980-81 1-9-1980 14,952 14-9-81 14,952 1981-82 31-7-1981 28,647 3-11-81 28,647 1982-83 21-7-1982 53,570 4. On 18-11-1982 a search under section 132 was carried out at the residential and business premises of the assessee. Cash of Rs. 6,677, ornaments valued at Rs. 41,505 and some books, documents, etc. were seized. A sworn statement of the assessee was also recorded. The books and documents seized during the said search showed that the assessee had surreptitiously carried on business in curtain cloth, etc. in eight fictitious names as listed below : 1. Hindustan Traders. 2. Gadge Sales Corporation. 3. Associated Agencies. 4. Evergreen Agencies. 5. M/s. Asain Enterprises. 6. M/s. Khadatkar Co. 7. M/s. Wiltex at Bombay. 8. M/s General and Allied Agencies. On 10-1-1983 the assessee filed a petition purportedly under section 273A(4) before the Commissioner of Income-tax Nagpur, wherein he denied to have carried on any business in any other name except those mentioned above. He offered to be taxed on a total sum of Rs. 7,00,000 spread over the said five years. He also filed fresh returns on the same day surrendering the additional income of Rs. 7, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 273A(4) submitted before the Commissioner. The disproportion between the income assessed for the five years and the additional income disclosed in the revised returns was such that the concealment could not validly be held to have been unintentional or bona fide. In support of his arguments, the learned Departmental Representative relied upon the decisions in ITO v. Manoharlal M. Agrawal [1989] 30 ITD 151 (Nag.) ; Durga Timber Works v. CIT [1971] 79 ITR 63 (Delhi) ; Mahavir Metal Works v. CIT [1973] 92 ITR 513 (Punj. Har.) ; Banaras Chemical Factory v. CIT [1977] 108 ITR 96 (All.) ; Addl. CIT. v. Bhartiya Bhandar [1980] 122 ITR 622 (MP) and Biland Ram Hargan Dass v. CIT [1987] 35 Taxman 423 [1988] 171 ITR 390 (All.). As against this, it was contended by the learned counsel for the assessee that the disclosure made by the assessee, through his revised returns, was a voluntary one inasmuch as no assets were found during the search and seizure operations. Although the petition under section 273A(4) continues to pend and has not yet been accepted, yet the revised returns have been acted upon and, therefore, the department was not justified in imposing the penalties. Support in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng penalty under section 271(1)(c). The decision of the Supreme Court in Godfrey Philips (India) Ltd.'s case was pressed into service by the learned counsel for the assessee in support of his argument that since the Income-tax Officer, by basing his revised assessment on the revised return, has acted upon those returns he is now estopped from imposing any penalty. Here again we find that this ruling can hardly of any help to the assessee. There was no estopppel involved in the act of the Income-tax Officer basing his revised assessment on the revised returns filed by the assessee. The doctrine of estoppel cannot simply be applied to the facts of the present case inasmuch as no act of the Income-tax Officer shown to have induced the assessee to alter his position. In other words, it is not shown that it was because of any promise or inducement that the assessee filed his revised returns. The next decision in the case of Sir Shadilal Sugar General Mills Ltd. also does not offer any assistance to the assessee inasmuch as that decision was rendered in the context of section 271(1)(c) as it stood prior to its amendment in 1964. In the present case the clandestine carrying on of as man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is income and the admission of the assessee is proved by the department during the penalty proceedings, the onus on the department is discharged. In that situation the assessee is still to prove and it is open to him to prove in the penalty proceedings that the addition made by him during the course of the assessment proceedings was wrongly or illegally or was incorrect. He can lead evidence during the penalty proceedings to show that he had not concealed any income or furnished inaccurate particulars thereof. If he fails to prove this, the department would be justified in levying penalty on him under section 271(1)(c). In the case in hand, in the penalty proceedings, the assessee does not appear to have made any attempt serious or otherwise - to show that he had not concealed any income or furnished inaccruate particulars thereof. This decision of the Punjab High Court thus significantly helps the departmental case. The Departmental Representative's next reliance was on the decision in the case of Banaras Chemical Factory. The facts of this case are on all fours with the facts of the present case and that decision offers significant support to the departmental case in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome and the penalty on that account was held to be justified. 11. In the present case, the total assessed income of the assessee for the five years in question was approximately Rs. 68,000, whereas the income returned by him in his revised returns was approximately of a sum of Rs. 7,68,000. There was such a great disproportion between the assessed income and the revised income that it was impossible for the assessee to have successfully shown that the understatement by him of his income was unintentional or bonafide. The assessee in his sworn statement and also in his petition under section 273A(4) has unequivocally admitted that he has been surreptitiously carrying on under fictitious names, as many as eight businesses. The income generated therefrom could not be treated otherwise than a concealed income. From a perusal of the impugned order of the learned CIT(A) we find that there is a clear mis-statement of facts in paragraph 4 of his order. That mis-statement reads as under : "4. On 10-1-1983, the appellant filed a settlement petition under section 271(4A) before the Commissioner of Income-tax, Vidharbha, Nagpur, whereby he denied having earned any income from business in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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