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TMI Blog2006 (2) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee has taken contract for sale of liquor and was having two shops, i.e., Camp-I and Camp-II, Bhilai. The assessee has shown sale of country liquor of Masala variety at the rate of Rs. 86 per litre and plain variety at the rate of Rs. 72 per litre through out the year. On verification of the figures shown by the assessee, a letter was written to the District Excise Officer, Durg for finding out the actual selling rate in the year under consideration. He informed the rates as under: ----------------------------------------------- A. Shop of Camp-I, Bhilai Full Bottle Half Quarter &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee offered the amount for taxation. It was made voluntarily without any adverse finding by the department. Hence, it was submitted that there should not be any penalty proceedings. The Assessing Officer held that the assessee's cbntentions are not tenable and factually incorrect. The assessee offered the income only when he was confronted that there is a difference in the selling price of the country liquor as per books of account and the records of the Excise Department. The difference was worked out by the Assessing Officer and as far as the assessee is concerned, he chose to accept the addition and did not contest the same in appeal. Not contesting the addition in appeal or accepting the same, it cannot be treated as voluntar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquor claimed to have been sold by the assessee were much lower rates certified by the State Excise Department and thus by reducing the selling price in its books of account, the assessee consciously attempted to evade the tax. He held that the contention of the assessee that the surrender was voluntarily without any adverse finding has no merit. He held that had the Assessing Officer not made the investigation, the assessee would have conveniently been successful in evading the tax on the aforesaid sum. He held that the case cited by the assessee had no application. The CIT(A) gave partial relief to the assessee. Aggrieved by the order of the CIT(A), the assessee is in appeal before the Tribunal. 5. The ld. counsel for the assessee subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out in the assessee's books of account and the assessee's accounts are audited. There is no adverse remark by the auditor with regard to the quantitative details of purchases and sales. Relying on the decision of the Patna High Court in the case of M.D. Umer v. CIT [1975] 101 ITR 525, he submitted that the assessee had a strong case but under the circumstances that the partners had started their own independent businesses, the assessee refrained from taking any recourse to law and hence, it is not an admission. Relying on the decision of the Hon'ble Supreme Court in the case of CIT v. Suresh Chandra Mittal [2001] 251 ITR 91 he submitted that surrender of certain income to purchase price and to avoid litigation automatically does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undisclosed income earned. Had the revenue not taken steps, the income would have been escaped from the tax net. Only after the Assessing Officer finding out the difference between two, the assessee surrendered it. The assessee had not taken the matter in further appeal. In these circumstances, the ld. DR submitted that the order of the CIT(A) is to be confirmed. 8. We have considered the rival submissions, gone through the orders of the authorities below and the decisions cited before us by the contending parties. First, we will come to the decision mainly relied upon by the DR of the ITAT, Nagpur Bench in Suresh Kumar Jain's case. The main reliance was placed on the decision of the Hon'ble Kerala High Court in the case of DKB & Co. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deletion of the word "deliberately", the word "concealed" shifted the burden of proof to the assessee but still it is a rebuttable one. Coming to the instant case of the assessee, as rightly contended by the counsel for the assessee, the State Excise Department has not fixed any sale price. There is no positive evidence to show that the assessee had sold the liquor for higher price. The fact that the assessee has accepted the assessment and offered the income to tax does not automatically lead to the conclusion that the assessee had concealed the income. Penalty proceedings are independent and the assessee is not precluded from giving evidence at that stage. It may be a good case to make addition but it is not necessary that such cases le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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