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TMI Blog2012 (5) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... The same stands allowed following the decision by the Hon'ble jurisdictional High Court in the case of CIT v. Ramala Sahkari Chini Mills Ltd. (supra) and which stands distinguished by us vide the foregoing part of this Order. Further, we also observe that no such addition stands made by the Revenue in the assessment for A.Y. 2004-05. In that case, however, we find that there is no discussion on this aspect of the matter in the assessment order, copy of which stands placed on record (PB page 133 to 135). As such, no positive inference from the same could be drawn. In fact, it were so, the fact of no such addition having been made in any of the preceding years, some of which could be subject to regular assessment u/s 143(3)/s. 147, would by itself lead to the deletion of the impugned addition. Each year is an independent unit of assessment, so that the Tribunal, or any other appellate authority for that matter, is obliged to decide the issue before it in accordance with the law, i.e., applying the same in the light of the obtaining facts and circumstances, i.e., as discerned, so that the Tribunal is not bound by the decision of the lower authorities. The principle of res judicata is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit account was not in the nature of revenue receipt and hence was not taxable. The CIT(A) further noticed that the decision of I.T.A.T. in quantum matter is on the basis of legal interpretation. The claim of the assessee was on bona fide belief of past accounting practice and legal interpretation. 5. We have heard the ld. Representatives of the parties and records perused. The penalty proceedings under section 271(1) (C) can be initiated only if the A.O or the first Appellate authority is satisfied in the course of any proceedings under the Act. If he is satisfied as per clause (c) that any person has concealed the particulars of his income or has furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty the sum mentioned in sub-clause (iii) of clause (c). The expression used in clause (c) is 'has concealed the particulars of his income' or 'furnished inaccurate particulars of such income'. Therefore, in both cases of concealment and inaccuracy the phrase 'particulars of income are used. It will be noted that as regards concealment, the expression in clause (c) is 'has concealed the particulars of his income' and not 'has con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnished. Where in 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 AO cannot invoke provision of section 271(1)(c) on the basis of routine and general presumptions. Whether it be a case of only concealment or of only inaccuracy or both, the particulars of income so vitiated would be specific and definite and be known in the assessment proceedings by the ITO, who on being satisfied about each concealment or inaccuracy of particulars of income would be in a position to initiate the penalty proceedings on one or both of the grounds of default as may have been specifically and directly detected. 5.2 In addition to main provisions of concealment "has concealed the particulars of his income" or "has furnished inaccurate particulars of such income" there are deemed to represent the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the provision of Explanation 1: the onus to establish that the explanation offered was bona fide and a:' facts relating to the same and material to the computation of his income have been disclosed by him will be on the person charged with concealment. The explanation of the assessee for the purpose of avoidance of penalty must be an acceptable explanation; it should not be a fantastic or fanciful one. As indicated above, the consequence follows as a matter of law. The burden is on the assessee. If he fails to discharge that burden, the presumption that he had concealed the income or furnished inaccurate particulars thereof is available to be drawn. 5.4 Part A of the Explanation to section 271(1)(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 AO. in other words, where the assessee offers some explanation, it is only the proving by the assessee officer of the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Act could not be levied in every case of non-payment or short payment of duty and that penalty in respect of section 271(1)(c) of the Income-tax Act would be leviable, subject only to the conditions there under. It required the matter to be considered not solely with reference to Dharamendra Textile Processors' case but along with the decision of Rajasthan Spinning and Weaving Mills' case (supra). In the case of CIT v. Reliance Petroproducts Pvt Ltd 322 ITR 158 the Supreme Court further explained the matter and finally settled the controversy created in Dharamendra Textile Processors' case (supra). The Supreme Court in this case has analysed the facts in Dilip N. Shroff's case (supra) and found from the facts, that the explanation given by the assessee was bona fide nor did not assessee furnish any inaccurate particulars. It no doubt went on to observe that the element of mens rea was essential. The Supreme Court in Dharamendra Textile Processors' case (supra) had pointed out only to this aspect of the decision in that, there was no necessity to prove mens rea on a plain reading of the provisions of section 271(1)(c) in the context of a penalty being a compensation for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der consideration we noticed that the assessee collected Rs. 90,23,233/- from purchase price given to farmers on the ground that such collection was to be utilized for issuance of shares. The submission of the assessee is that the shares could not be issued as State Government did not give sanction to issue such shares. It is admitted fact that in earlier years as well as subsequent years, as submitted by the Ld. Authorised Representative and noted by the I.T.A.T. in 2002-03, no such addition was made. However, in quantum appeal the I.T.A.T. has confirmed the addition as per the reasons given in that order which has been reproduced above. We find that the assessee has furnished all relevant particulars of its income. We find that the assessee has disclosed the complete facts in the books of accounts and return of income though in computation of total income the assessee may not have been correctly taken this amount for the purpose of computation of total income in accordance with law. It is duty of the AO to compute total income in accordance with law on the basis of particulars filed by the assessee. Under these circumstances, it cannot be said that the assessee has furnished inac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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