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TMI Blog2012 (7) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of post survey enquiry, some bank account of Oriental Bank of Commerce, Farrukhabad were detected. The accounts of M/s. Ashish Potato Co. and M/s M.M. Traders were introduced by the assessee in the Bank. The assessee Shri Mohan Lal Rastogi has surrendered both the above Bank accounts as his undisclosed benami accounts. Meanwhile, the assessee revised his return which was filed on 15.01.2004. The brief summary of original returns filed, revised returns filed, additions made and penalty levied for different years noted from page no.9 of assessee's Paper Book are as under :- A.Y. Dt. of filing of original return Income shown in original return Dt. of filing revised return Income shown in revised return Dt. of issue notice u/s 148 Income assessed by Income Tax Appellate Tribunal order Amount of penalty levied by ITO, Farrukhabad. 1999-00 05.12.1999 182255 15.01.04 182255+278000=460255 30.01.04 182255+298080=480335 94000.00 2000-01 27.11.2000 214969 15.01.04 214969+64000=278969 30.01.04 214969+89204=304173 20000.00 2001-02 28.11.2001 242607 15.01.04 242607+54000=296607 30.01.04 242607+75202=317809 33500.00 2002-03 30.12.2002 269550 15.01.04 269 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment Year 1999-2000 observing as under :- "I have gone through the reply filed by the assessee. In this connection, it is mentioned here that the assessee had filed revised return of income only after detecting an undisclosed account in the names of M/s Ashish Potato Co. and M/s M.M. Traders with oriental Bank of Commerce consequent to special survey conducted in the case of Shri Mahabir Cold Storage, Farrukhabad in which Shri Mohan Lal Rastogi is a partner. The assessing Officer on page 2 of the assessment order has mentioned that before filing the revised return by the assessee the undisclosed bank accounts maintained by the assessee with OBC, Farrukhabad were unearthed by the department and statement of assessee was recorded. The revised return filed by the assessee was treated as Non-est. In this connection, I would like to place reliance on the judgement in the case in CIT vs. Mohd. Mohatram Farroqui (2002) 177 CTR (Raj.) 434 wherein it was held that disclosure of income in the revised return after seizure of unexplained cash from the assessee can not be said to be a voluntary disclosure. Reliance is also placed in the case in P.C. Joseph & Bros vs. CIT (2000) 158 CTR (Ker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown in the original return. Ld. Authorised Representative submitted that the assessee has voluntarily revised the return and furnished all the details which have been accepted by the I.T.A.T. Therefore, the Ld. Authorised Representative submitted that in the light of the facts, penalty under section 271(1)(c) is not leviable. The Ld. Authorised Representative in support of his contention relied upon the following decisions :- 1) CIT vs. Guru Ram Dass Fruit and Vegetable Agency, 251 ITR 361 (P&H) 2) CIT vs. Ved Prakash, 269 ITR 255 (P&H) 3) CIT vs. Suresh Chandra Mittal, 251 ITR 9 (SC) 4) CIT vs. Suresh Chandra Mittal, 241 ITR 124 (M.P.) 5) Shiv Lal Tak vs. CIT, 251 ITR 373 (Raj.) 6) Cheap Cycle Store vs. CIT, 196 CTR 173 (All.) 7) CIT vs. Raj Bans Singh, 276 ITR 351 (All.) 8) Sudarshan Silks and Sarees vs. CIT, 300 ITR 205 (SC) 9) Decision of I.T.A.T., Agra Bench in the case of ITO vs. Smt. Parwati Devi (Deceased), ITA No.51/Agr/2008 A.Y. 2000-01 order dated 03.02.2009. 10) Decision of I.T.A.T., Agra Bench in the case of Sunil Chandra Gupta vs. ACIT, ITA Nos.75 & 76/Agr/2007 order dated 23.04.2009. (11) CIT vs. (1) Rajiv Garg, (2) Siya Ram Garg (3) Sanjay Garg, 313 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has concealed the particulars of his income or furnished inaccurate particulars of such income, the penalty under section 271(1)(c) of the Act is leviable. The explanation to said section provides certain deemed circumstances where concealment from penalty is leviable. The admitted facts in the case under consideration are that the assessee was running a business of potatoes in proprietorship of which income has not been shown in the return filed by the assessee. The Department noticed in a survey under section 133A of the Act conducted in the case of M/s. Shri Mahabir Cold Storage, Farrukhabad and during the course of post survey enquiry, it has been found that the assessee was doing business in the name of M/s. Ashish Potato Company and M/s. M.M. Traders through bank account with Oriental Bank of Commerce, Farrukhabad. The assessee was the introducer of those bank accounts. The assessee surrendered the investment in that business along with profit by filing a revised return. To appreciate the issue whether the action of the assessee was voluntary in filing the revised return or it is a case of detection of concealed income by the assessee by filing original return and conceali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not voluntary but under compulsion being cornered by the Assessing Officer. Penalty had to be imposed." 8.3 Hon'ble Gujrat High Court in the case of LMP Precision Engg. Co. Ltd. vs. DCIT, 330 ITR 93 (Guj) after noting facts, held as under :- (head note) "The Deputy Director of Income-tax (Investigation), Bombay undertook survey action some time in September, 1988 and on verification of certain purchases made by the assessee it was found that the purchases did not appear to be genuine. Before the proceedings could be finally concluded the assessee filed a declaration under section 273A of the Act disclosing additional income of Rs. 54,71,463 as being relatable to assessment year 1985- 86. On the same day, declaration was also made of a sum of Rs.18 lakhs each for assessment years 1986-87, 1987-88 and 1988-89. This application under section 273A of the Act was followed by revised returns filed on February 14, 1989 for all the three assessment years declaring identical additional income in the revised returns. Before assessments could be finalised, after regularising the same by issuance of notice under section 148 of the Act, the assessee came forward with another application de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn and offered the peak credits in the bank account and interest thereon, with a condition that no penalty be imposed and he may not be prosecuted. The Assessing Officer did not accept the conditions. The Assessing Officer completed the assessment and also imposed penalty. The Commissioner (Appeals) accepted the plea of the assessee to the effect that the assessee having filed higher return and surrendered the undisclosed income, penalty was not leviable. The Tribunal reversed the order on the ground that the assessee furnished inaccurate particulars of his income and also concealed particulars of his income while filing the original return and was not able to establish the inadvertent mistake or omission in the original return, when he declared showing much larger income in the revised return. On appeal: Held, dismissing the appeal, that the plausibility or otherwise of the explanation of the assessee was a pure question of fact. Admittedly, the assessee concealed the transactions in the bank account and when notice of reassessment was issued, finding no other way out, the assessee surrendered income to avoid penal consequences. In such a situation, it could not be held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench in which the Tribunal found that explanation furnished by the assessee stands substantiated by evidence brought on record. In the light of the decisions of various High courts, noted above, first of all decision of Tribunal cannot be given preference and further when the assessee himself surrendered the undisclosed income at the assessment stage after detecting income from potato business which was running systematically out of books of account, by the Department. 8.7 All the above decisions squarely apply to the case of the assessee and prove that the assessee had intentionally and deliberately filed inaccurate particulars of his income in the original return and, therefore, penalty was leviable in the present case. 8.8 In the light of the above discussions and after considering the facts of the case, we find that it is a clear cut case of concealing and furnishing inaccurate particulars of income of proprietary potato business of the assessee which was systematically run through bank account. The assessee was very much aware about this income of potato which is subject to tax in accordance with law. Inspite of this fact, he tried to operate this business under the name a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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