TMI Blog2010 (2) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... -availability of copy of legible seized documents - When interest income itself is not disclosed, there is no question of holding that all the facts relating to the interest income and material to the computation of income was disclosed by the assessee. Thus, the assessee in the present case has failed to discharge obligations laid upon him by Explanation 1 to section 271(1)(c). - Decided against the assessee - IT Appeal Nos. 4477 and 4478 (Delhi) of 2009, - - - Dated:- 5-2-2010 - I.P. Bansal, B.P. Jain, JJ. Yogesh Kishore for the Appellant H.K. Lal for the Respondent ORDER I.P. Bansal, Judicial Member:- 1. These appeals are filed by the assessee and these are directed against the separate orders of the CIT(A) dated 6-10-2009 for assessment years 2000-01 and 2001-02. In both these appeals, the assessee is aggrieved by the levy of penalty under section 271 (1)(c) which was imposed by the Assessing Officer at the rate of 300 per cent of the concealed income and reduced by the CIT(A) to 100 per cent. The assessee is aggrieved with the orders of the CIT(A) on the ground that it was not a case where levy of concealment penalty was warranted. Grounds of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before us, reads as under:- " P.P. Bindra 50, Defence Colony Market, New Delhi [Assessment year 1998-99] Sr. No. FDR No. and Date Bank Amount Period [Month] A.Y. 1998-99 Interest 1999-2000 (AY) 1. 627151 of 17-1-1998 SB of Patiala 500000 15 10150 53235 2. 627152 " " " " " " 3. 627153 " " " " " " 4. 627150 " " " " " " 5. 627154 " " 550000 " 11200 58470 6. 627335 of 22-4-1998 " 100000 12 - 10285 7. 627336 " " 400000 12 - 41140 8. 1424 of 1-1-1998 Ambience Leasing Ltd. 1000000 36 3750 164599 89300 487434" 4. For assessment year 1999-2000, the interest was declared as calculated in the above chart amounting to Rs. 1,64,599. As FDR had matured on 31-12-2000, interest of Rs. 2,01,943 had accrued in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revised statement of total income. In these circumstances, the assessee had not concealed or tried to conceal any part of his income. The omission had been made on account of non-availability of the seized record. Further the revised statement of total income had been filed before the issue of any enquiry or questionnaire in respect of this matter. The assessee is, therefore, not liable for penalty under section 271(1)(c) of the Act in the light of a number of High Court and Supreme Court judgments." Assessment year : 2001-02:- "In this connection it is submitted that the assessee had declared income of Rs. 96,000 in response to the notice under section 153A of the Act when the assessee did not have the photocopies of the entire seized record. After going through the photocopies of the seized record, the assessee had found three omissions. Firstly, the short-terms capital gain of Rs. 32,675 had been omitted in the original return. Similarly the interest income of Rs. 1,78,554 from the Bank FDR and theinterest income of Rs. 1,51,458 from Ambience Leasing Ltd. had been omitted. The assessee had, therefore, filed revised statement of total income at Rs. 4,46,690 voluntarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng pressure on assessee to file the return. The seized computer including the computer of M/s. Moet's Bar-be-cue in which the assessee is a partner was opened and copies were given on 19-12-2007. Thus, the Assessing Officer erred in stating that copies of entire seized material were supplied by the Investigation Wing. It was submitted that the assessee is a law abiding citizen and since the mistake came to his notice, the same was immediately rectified and tax along with interest was paid immediately on 3-10-2007. It was submitted that even after the search, the Assessing Officer could not make any addition bas ed on seized material or statements recorded which clearly shows that the assessee was always filing his return and the mistake did not occur by an intention and it was only due to the fact that the entire seized material was not available. Reliance was placed on the decision in the case of CIT v. Suresh Chand Bansal [2009] 223 CTR (Cal.) 128 where in search under section 153A, the income was revised and additional income was accepted, penalty levied was held not justified. 9. Considering all these submissions, the CIT(A) observed that disclosure of interest income earne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmation of penalty to the extent of 100 per cent, hence, has filed the abovementioned appeals. 11. After narrating the facts, it was vehemently pleaded by ld. AR that the confirmation of penalty to the extent of 100 per cent by CIT(A) is not justified as it is a case where no penalty under section 271(1)(c) was leviable. It was submitted that despite repeated requests, the department did not provide the assessee with the legible copies of seized documents. Therefore, the assessee was unable to return his income correctly in response to notice for filing the return under section 153A. Referring to the reply of the assessee filed before the Assessing Officer, it was submitted that in the absence of legible copies of seized material the assessee could not file correct income and upon coming to know that interest income has been omitted to be filed, a revised computation of income was filed voluntarily and, therefore, there was no concealment on the part of the assessee. It is a case of omission on account of non-availability of seized record and, therefore, ld. CIT(A) was not right in upholding the penalty to the extent of 100 per cent of the tax sought to be evaded. 12. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial to the computation of the total income of any person under this Act,- (A) such person 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, or (B) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his 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 subsection, be deemed to represent the income in respect of which particulars have been concealed." 15. Explanation 1 to section 271(1)(c) describes that where in respect of any facts material to the computation of total income of any person under Income-tax Act, the assessee fails to offer an explanation or offers an explanation which is found by the Assessing Officer to be false or such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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