TMI Blog1992 (3) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished inaccurate particulars of income. 2. The assessee is a registered firm which carries on business of purchase of loose tobacco and sale after mixing under the name 'Dileep Jarda'. The assessee followed mercantile method of accounting. The firm came into existence on 4-10-1984 and the accounting year is Samvat Year. For the assessment year 1987-88 for which the accounting year ended on 2-11-1986, a return of income was filed on 30-7-1987 declaring total income of Rs. 1,33,780 enclosing the trading account, profit and loss account and balance sheet. In the course of assessment proceedings, the ITO noticed that during the months of July and August 1986 the assessee-firm received total refund of Rs. 3,30,461 from the Superintendent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons and findings of the ITO. On his part, he has observed that the assessee has not shown as income in the statutory return of income filed. According to him, the Note appended to the computation of income sheet did not amount to disclosure of information. The Note was also shown in a very inconspicuous space under the head "Enclosures" while in fact, no enclosure in respect of refund of excise duty was enclosed along with the return. The CIT(A) also highlighted the conduct of the assessee as seen from the books of account. It would appear that the refund of excise duty received on 16-7-1986 was entered in the cash book on 19-7-1986 while the refund received on 14-8-1986 was entered in the cash book on 18-8-1986. The amount was first taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Har.) wherein it has been held that if an income had accrued, whether it actually accrued or whether it accrued as a result of the deeming provisions of the Act, will not make any difference. An income which has accrued as a result of the deeming provisions of the Income Tax Act can form the basis for levy of penalty. In view of the factual position, entries in the books of account and the case laws cited, the CIT(A) came to the conclusion that the assessee has concealed particulars of his income and therefore, there was conscious concealment in the instant case and penalty under section 271(1)(c) was warranted for concealment of income. 6. As regards the objection that the penalty was levied without the approval of the Dy. CIT the CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the inclusion of income under section 41(1) was not disputed by the assessee and the assessee also paid tax of Rs. 72,720 as a matter of abundant caution in respect of deemed income under section 41(1) with the result that the assessment resulted in refund. The assessee has also shown refund of the excise duty in the balance sheet under the head "Amanat account" which shows that there was no intention of concealment. The learned counsel for the assessee also contended that while the ITO has charged the assessee for the default of furnishing inaccurate particulars of income, the CIT(A) has held that there was concealment of particulars of income' and relied on the judgment of the Gujarat High Court in the case of CIT v. Lakhdhir Lalji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore, the assessee has not furnished any false statement. 9. The learned departmental representative duly supported the orders of the authorities. 10. We have duly considered the rival contentions, case law cited and the paper compilation filed. In our opinion, the order passed by the CIT(A) is valid in law and is in accordance with the judgment of the Punjab Haryana High Court in the case of Behari LaI Pyare Lal. We have already pointed out the reasons given by the CIT(A) to come to the conclusion. The assessee has entered there funds in the cash book but transferred to amanat account and there was no justification for the action of the assessee because as on the date of receipt of refunds there was no notice from the excise d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... differentiation in this case, inasmuch as the assessee has not furnished particulars of income by way of refund of excise duty at all. Even otherwise, the case of the assessee before us is that the footnote to the computation statement amounted to furnishing of primary fact and in this view the phrase used by the ITO could not be questioned. This is a clear case of concealment of particulars of income. Even though the ITO has used the phrase inaccurate particulars of income, nonetheless, he has chosen to levy penalty under section 271(1)(c) which includes concealment of income also. In this view of the matter, there is no disparity of opinion regarding default committed by the assessee so as to hold that penalty is not leviable on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
