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TMI Blog2010 (2) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... The order of the ld. CIT(A) is against law and facts of the case. 3. The appellant craves the right to add, amend or withdraw any grounds of appeal at the time of hearing. ITA No. 4478/Delhi/2009:- 1. The ld. CIT(A) has erred in confirming the penalty under section 271(1)(c) at the rate of 100 per cent as against penalty of 300 per cent imposed by the Assessing Officer. 2. The order of the ld. CIT(A) is against law and facts of the case. 3. The appellant craves the right to add, amend or withdraw any grounds of appeal at the time of hearing. 2. Facts, briefly stated are that a search and seizure under section 132 of the Act was conducted on assessee on 6-12-2005. Accordingly, notice under section 153A was issued for the years under consideration in response to which returns of income were filed by the assessee which did not include interest accrued/received (accrued for assessment year 2000-01 and received for assessment year 2001-02). The assessee had a deposit of Rs. 10 lakh with M/s. Ambience Leasing Ltd. on which interest had accrued up to assessment year 2000-01 and the said deposit was to get matured on 31-12-2000. FDR is dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncealed by the assessee and, therefore, concealment penalty was leviable on that amount. During the course of penalty proceedings, the assessee was required to show cause as to why concealment penalty should not be levied. The explanation of the assessee was furnished vide letter dated 17-6-2008 which is reproduced by the Assessing Officer in the penalty order and for the sake of convenience the explanation of the assessee as given for assessment years 2000-01 and 2001-02 are reproduced:- Assessment year : 2000-01:- "In this connection it may be pointed out that the assessee had shown income of Rs. 4,73,670 in response to the notice under section 153A of the Act. The return had been filed when the entire record had been seized in the case of the firm and the assessee arid the photocopies thereof had been supplied subsequently. On perusing the photocopies of the seized record, the assessee had noticed that the interest income of Rs. 2,01,943 from Ambience Leasing Ltd. had been omitted. After going through the photocopies of the seized record, the assessee on his own had filed the revised statement of total income showing the total income of Rs. 6,75,613 including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has observed that the contention of the assessee is factually incorrect as the copies of the seized material was handed over to the assessee by the Investigation Wing, therefore, copies of the seized material were available with the assessee at the time of proceedings under section 153A. Referring to the contention of the assessee that revised computation of income was filed during the course of assessment proceedings, the Assessing Officer has observed that the same was filed by the assessee pursuant to various queries raised by him in this regard and, thus, in short, the contention of the Assessing Officer is that the said act of the assessee was also not voluntary. 7. The Assessing Officer further observed that mere filing a letter of revised computation of income cannot obviate the necessity of filing revised return for which purpose the Assessing Officer has placed reliance on two decisions: Goetz (India) Ltd. v. CIT [2006] 284 ITR 323 (SC) and Mittal Alloys and Steel v. CIT [2008] 299 ITR 291 (Punj. and Har.) (citation wrongly written in assessment order as 299 ITR 294). The Assessing Officer further observed that the assessee otherwise is also not eligible under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the course of assessment proceedings by filing a revised computation of income. The Assessing Officer has rightly pointed out that filing of revised computation of income is not equivalent to filing of revised return of income and also that once return was filed in response to notice under section 153A, the same cannot be revised as provisions of section 153A does not permit filing of any revised return. Thus, expressing agreement with the findings of Assessing Officer, it is held by CIT(A) that non-disclosure of interest income on the deposits with Ambience Leasing Ltd. in the return filed in response to section 153A tantamounts to furnishing inaccurate particulars of income. The claim of the assessee that revised computation was filed voluntarily is also disputed by the Assessing Officer as the same is stated to be done by the Assessing Officer in response to various queries raised by him. So far as it relates to reliance on the decision in the case of Suresh Chand Bonsai (supra), ld. CIT(A) has observed that the issue in that case was whether income offered in response to section 153A can be said as concealed income liable for penalty under section 271(1)(c) or not and, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not legible. He contended that the assessee has submitted an explanation which he could not substantiate, therefore, the Assessing Officer was right in levying the penalty. He submitted that non-disclosure of interest income in the return filed in response to notice under section 153A cannot be said to be on account of illegible copy of seized documents as contended in the reply filed by the assessee in response to show-cause notice issued for levy of concealment penalty. Thus, it was submitted that according to Explanation 1 to section 271(1)(c), the penalty was leviable on assessee and the CIT(A) is quite reasonable in confirming the penalty only to the extent of 100 per cent. 13. It was further submitted that the assessee could not show that his act of filing revised computation was voluntary. It was also submitted that there is no provision in the section 153A which allows the assessee to file revised return and, therefore, also the Assessing Officer was justified in levying the penalty by rejecting the contentions raised by the assessee. 14. We have carefully considered the rival submissions in the light of the material placed before us. The reply of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to substantiate and he also fails to prove that explanation furnished by him is bona fide and all facts relating to the same and material to the computation of his total income were disclosed. 17. In this appeal, it is the case of the assessee that due to non-availability of legible copy of seized documents, the assessee could not disclose the relevant interest income in the return filed in response to section 153A. Such an explanation of the assessee is not substantiated as it could not be shown by the assessee that relevant copy of the instrument, according to which the interest has accrued to the assessee, was in any way illegible. Moreover, the disclosure of interest income did not depend upon the legible or illegible copy of the seized document. Prior to the date of search in earlier years, the assessee has been disclosing such interest income. As discussed in the above part of this order, in the copies of return filed in regular course with respect to assessment years 1998-99 and 1999-2000 such accrued interest was disclosed by the assessee. Normally a person while preparing the return will look into the return filed for earlier years. Therefore, the disclosure of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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