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TMI Blog2011 (4) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... January 6, 2003. In that survey, discrepancies in cash, stock and renovation were found. When the assessee was confronted with the same, it surrendered the amount of Rs. 88,14,676 during the survey. Since the survey was conducted on January 6, 2003, i.e., in the financial year 2002-03 corresponding to the assessment year 2003-04, for that assessment year, the assessee had not filed the income-tax return and naturally the occasion to file the income- tax return had not matured. When the income-tax return was ultimately filed by the assessee on December 2, 2003, the assessee declared its income at Rs. 87,71,580 including the amount surrendered by the assessee itself. The assessment was framed including the surrendered amount. While passing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Whether the Income-tax Appellate Tribunal was correct in law in holding that no concealment was made by the assessee though the assessee had surrendered the amount of Rs. 88,14,676 during survey on account of discrepancies found in cash, stock and difference in renovation ?" 4. The facts demonstrated bring forth the position that when the survey was conducted a couple of months before the close of the financial year, i.e., January 6, 2006, definitely discrepancies were found inasmuch as there was difference in cash, stock as well as renovation expenses are as follows : Rs. "Difference in cash 22,80,876 Difference in stock 5,00,200 Renovation difference 60,33,580 88,14,676" 5. The assessee accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) or the Commissioner in the course of any proceedings under this Act, is satisfied that any person- . . . (c) has concealed the particulars of his income or furnished inaccurate particulars of such income," 8. As pointed out above, the contention of the Department is that the intention of the assessee in maintaining false records relating to cash, stock and renovation, etc., was manifest, viz., to conceal the particulars of income and furnish inaccurate particulars of such income. It was contended that but for the said survey in which the assessee was exposed, he would have filed the income-tax return concealing the said income and, therefore, the provisions of section 271(1)(c) of the Act are clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the direct nexus between the concealment/inaccurate particulars being furnished with the return filed. 10. To bolster this submission, the learned counsel for the assessee took refuge of Explanation 5 and Explanation 5A to section 271 of the Act and submitted that these Explanations provide that in cases of search by way of a deeming fiction, the liability towards penalty has been prescribed even in cases where the return of income for such year has not been furnished before the said date of search. Therefore, wherever the Legislature intended to impose a penal liability covering a case where return was yet to be filed, a deeming fiction has been consciously provided. In the absence of any such deeming fiction imposing penalty in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r corners of the said provision, penalty cannot be imposed. Sub-section (1) of section 271 stipulates certain contingencies on the happening whereof the Assessing Officer or the Commissioner (Appeals) may direct payment of penalty by the assessee. We are concerned herewith the fundamentality provided in clause (c) of section 271(1) of the Act, which authorizes imposition of penalty when the Assessing Officer is satisfied that the assessee has either ; (a) concealed the particulars of his income ; or (b) furnished inaccurate particulars of such income. 13. It is not a case of furnishing inaccurate particulars of income, as in the income-tax return, particulars of income have been duly furnished and the surrendered amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y proceedings, in this case. 15. It necessarily follows that concealment of particulars of income or furnishing of inaccurate particulars of income by the assessee has to be in the income-tax return filed by it. There is sufficient indication of this in the judgment of this court in the case of CIT v. Mohan Das Hassa Nand [1983] 141 ITR 203 (Delhi) and in Reliance Petroproducts Pvt. Ltd. [2010] 322 ITR 158 (SC) the Supreme Court has clinched this aspect, viz., the assessee can furnish the particulars of income in his return and everything would depend upon the income-tax return filed by the assessee. This view gets supported by Explanation 4 as well as Explanation 5 and Explanation 5A to section 271 of the Act as contended by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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