TMI Blog2008 (3) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... assumption that prior to the due date for filing of return. Held that- if the assessee in the course of search does not disclose income and offer payment, the assessee is deemed to have concealed particulars of income even in the course of search. Obviously, there is concealment of income by the assessee by virtue of operation of Explanation 5 to section 271(1)(c) of the Act because the assessee not only did not disclose income in the course of search. The reference by answering the question referred in favour of the Revenue and against the assessee. - 3 of 2003 - - - Dated:- 3-3-2008 - C. N. RAMACHANDRAN NAIR and T. R. RAMACHANDRAN NAIR JJ. P.K.R. Menon and George K. George for the Commissioner. P. Balachandran and Smt. Preetha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty order, the same was rejected by the first appellate authority, namely, the Commissioner of Income-tax (Appeals). However, on second appeal by the assessee, the Tribunal cancelled the penalty on the assumption that prior to the due date for filing of return, the assessee returned the income and paid tax thereon. It is against this order of the Tribunal cancelling the penalty that the Department has filed this reference. 2. We have heard senior counsel Sri P. K. R. Menon appearing for the Revenue and senior counsel Sri P. Balachandran appearing for the respondent-assessee. The Revenue's counsel rightly pointed out that the assumption of the Tribunal that for the year 1990-91 the return was due on June 30, 1991, is obviously incorrect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the circumstances, concealment stands proved beyond any doubt by operation of the presumption available under Explanation 5 to section 271(1)© of the Act and, consequently, the assessee is liable for penalty under the said section. Therefore the order of the Tribunal to the contrary is liable to be reversed. So far as the quantum of penalty is concerned, the officer has levied only minimum penalty and therefore there is no scope for interference with the quantum of penalty levied. In the circumstances we dispose of the reference by answering the question referred in favour of the Revenue and against the assessee. 3. A copy of this judgment under the seal of the High Court and signature of the Registrar shall be forwarded to the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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