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2009 (4) TMI 545

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..... 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 per cent of tax sough....

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....ulars 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 thus a direct attempt to hide an item of income or a p....

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....ecific 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 a case of only concealment or of only inaccuracy or both, the....

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....ed 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 within the special knowledge of the assessee. Section 106 of the Indian Evidence Act, 1872, ....

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.... 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 income. The ITO must have some definite evidence to refuse the assessee's claim or evidence or explanation. 1....