TMI Blog2013 (7) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same was accepted, by itself, however, does not efface the fact of non-disclosure of the income arising under the head of "capital gains" in the original return. In the background of this conduct, we do not find any acceptable ground to set aside the order of the Tribunal as held by the Apex Court in a series of decisions. - Following the decision of Union of India Vs. Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] - Decided in favour of Revenue. - Tax Case (Appeal) No.298 of 2010 - - - Dated:- 18-6-2013 - Chitra Venkataraman And K. B. K. Vasuki,JJ. For the Appellant : Mr. N. Quadir Hoseyn For the Respondent : Mr. M. Swaminathan Standing Counsel for Income Tax JUDGMENT (Judgment of the Court was delivered by Chitra Venkataraman,J. ) This Tax Case Appeal, relating to the assessment year 2002-03, filed by the assessee against the order of the Tribunal challenging the levy of penalty, was admitted on the following substantial questions of law: "1. Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that there was concealment warranting levy of penalty under Section 271(1)(c)? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as going through the records and the case laws for preparing the answers to the questions during the investigation, the assessee found that the method adopted for calculating the profit was incorrect. Thereafterwards, the right method of FIFO to calculate the profits was adopted. As the original shares were acquired by the assessee at very low rates, the revised calculation yielded large profits; hence, no concealment or inaccurate particulars could be attributed to the assessee. He pointed out that the filing of revised returns was voluntary and was made to set right the error that had crept in the original returns; that there was no mala fide intention in filing a wrong return or in concealing the particulars of the income, in his original return. In the circumstances, he prayed for dropping of the proceedings. 4. The Assessing Officer, however, rejected the said contention and pointed out to the chronological order of events that had taken place, leading to the filing of the revised return. The Assessing Officer pointed out that prior to 2005, the Investigation Wing of the Department received an information from CIB on the mutual fund transactions by Mrs.Kanchana, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestment in shares during the earlier years, including the years under consideration; that Revenue was in possession of information regarding the shares purchased by the assessee held in his name and not disclosed in the original return filed by him; that the enquiry with the wife of the assessee about her investment kick-started further investigation. Thus, realising the piquant situation, the assessee had filed the revised returns, which is subsequent to the incorrect returns filed by him originally. 7. On hearing both sides, the Tribunal pointed out that the Investigation Unit of the Department considered the letter dated 11.03.2005 and the statement of the assessee was recorded by the DDIT on 01.04.2005 and only subsequently thereon, the assessee filed the return on 09.05.2005, including the sum relating to the capital gains received on the sale of shares. The assessment under Section 143(3) read with Section 147 of the Income Tax Act was completed on 27.12.2006, accepting the second return of income, which was to be treated as return in response to the notice under Section 148 of the Income Tax Act. The Tribunal pointed out it was no doubt true that there was no specific sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue had found huge transactions in shares, calling for addition to the assessment. He further pointed out that the investigation itself was with reference to the assessee's wife's investment and there was no investigation as such, on the assessee, to hold that there was concealment of particulars of income. In the circumstances, in the absence of any mens rea or lack of bona fides found on the part of the assessee, the penal provisions are not attracted in this regard. Hence, the Tribunal committed serious error in confirming the order of penalty. In this regard, he placed reliance on the decision of this Court reported in [2011] 335 ITR 460 (Mad) (Commissioner of Income Tax Vs. Ample Properties Ltd.). 9. We do not find any justifiable ground to set aside the order of the Tribunal, upholding the levy of penalty under Section 271(1)(c) of the Income Tax Act. We may immediately point out herein that the above decision of this Court referred to by the assessee, does not, in any manner, advance the cause of the assessee, since, on facts, this Court accepted the reasoning of the Tribunal and cancelled the levy of penalty. The addition in that case itself arose on account of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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