TMI Blog2009 (4) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... gether. Since all these appeals belong to the same assessee, therefore, for the sake of convenience all the appeals have been decided by this common order. 2. First we take up appeal in ITA Nos. 3210/M/07 and 3638/M/07 for assessment year 1999-2000. 3. Brief facts of the case are that the assessee is a Co-operative Housing Society. The Assessing Officer made following additions ( a ) Donation on transfer of flat - Rs. 26,50,000; ( b ) Compensation from BPL Mobile Communication and Microwave Communication - Rs. 13,42,176; and ( c ) Penal Interest from members - Rs. 13,622. Assessee appealed before CIT(A) which has been dismissed by the CIT(A). The Assessing Officer levied penalty under section 271(1)( c ) of Rs. 14,33,968 being 100 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The expressions has concealed the particulars of income and has furnished inaccurate particulars of income have not been defined either in section 271(1)( c ) or elsewhere in the Act. One thing is certain that these two circumstances are not identical in detail although they may lead to the same effect, namely, keeping off a certain portion of income. The former is direct and the latter may be indirect in its execution. 5. The word "conceal" is derived from the latin concelare which implies con+celare to hide. Webster in his New International Dictionary equates its meaning "to hide or withdraw from observation, to cover or keep from sight; to prevent the discovery of; to withhold knowledge of". The offence of concealment is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e chargeable to tax would be in a position to detect the specific or definite particulars of income concealed or of which false particulars are furnished. Wherein the constituents of income returned, such specific or definite particulars of income are detected as concealed, then even in the total income figure to that extent they reflect, it would amount to concealment to that extent. In the same way where specific and definite particulars of income are detected as inaccurate, then such figure will also make the total income inaccurate in particulars to the extent it does not include such income. In other words, the Assessing Officer cannot invoke provision of section 271(1)( c ) on the basis routine and general presumptions. Whether it be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total income have been disclosed by him, then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause ( c ) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed. 8. A conspectus of the Explanation makes it clear that the statute visualised the assessment proceedings and penalty proceedings to be wholly distinct and independent of each other. In essence, the Explanation is a rule of evidence. Presumptions which are rebutting table in nature are available to be drawn. The initial burden of discharging the onus of rebuttal is on the assessee. The rationale behind this view is that the basic facts are withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c ) provides that if assessee fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Commissioner to be false. This Explanation can, therefore, be applied only where the assessee has either not offered any explanation or where he has offered any explanation, the same found to be false by the ITO, etc., in other words, where the assessee offers some explanation, it is only the proving by the Assessing Officer of the explanation to be false, that Part A of the Explanation may be attracted. Mere non-acceptance of explanation offered by the assessee cannot form a basis for the satisfaction of ITO to the effect that the assessee has concealed particulars of his inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income to be assessed, and the income offered by the assessee, in such case it is not automatically a case of where penalty under section 271(1)( c ) is leviable. 12. It has also been noticed that quantum appeals filed by the assessee before the Tribunal in ITA Nos. 3051 to 3053/M/06 and 7843/M/03 for assessment years 1998-99 to 2001-02, have been sent back vide order dated 20-10-2008 to the file of the Assessing Officer. In the light of the decision of ITAT the impugned orders of CIT(A) and Assessing Officer are set aside. 13. In the light of above discussion we cancel the penalty levied by Assessing Officer under section 271(1)( c ). 14. Now we take up ITA Nos. 6395/M/08 and 6396/M/08 for assessment years 1998-99 and 2000-01 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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