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TMI Blog2012 (12) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... the material facts relevant to assessment? (b) Whether in the facts and circumstances of the case the Income-tax Appellate Tribunal was right in law in confirming the order of CIT (A) though in view of the decision in the case of Reliance Petroproducts Pvt. Ltd. (2010) 322 ITR 158 (SC) for the proposition that if all the facts have been disclosed as has been done by the assessee by way of filing revised return of income, no penalty can be levied for concealment of income?" 2. We have perused the orders on record with the assistance of learned counsel for the appellant. Issue pertains to penalty under section 271(1) (c) of the Income-tax Act, 1961 imposed by the Assessing Officer for concealing particulars of income. From the record it eme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of concealment of income on part of the assessee. Assessing Officer also recorded that revised return was treated as non-est. CIT(Appeals) had also confirmed that such return cannot be treated as revised return. In view of such findings, the Assessing Officer proceeded to impose penalty at the rate of 100% of the tax sought to be evaded. He accordingly levied penalty of Rs. 43,16,890/-in his said order dated 29-3-2005. The assessee carried the matter in appeal before the Commissioner(Appeals). The Commissioner(Appeals) in his detailed order dated 28-2-2006 dismissed the appeal. Assessee's contention that declaration made in the revised return should have been taken into account was not accepted. It was reiterated that revised return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order rejected the assessee's appeal. Tribunal also found that right upto the stage of Tribunal, the assessee's revised return was held to be non-est. Declarations were made only after the survey. Regarding the contention that the Assessing Officer had to be clear whether the penalty was levied for concealing particulars of income or furnishing inaccurate particulars, the Tribunal placed reliance on statutory amendment by virtue of which section 271(1)(1B) was added by Finance Act, 2008 but with effect from 1-4-1989. 6. Counsel for the assessee vehemently contended that assessee having made full disclosures in the revised return, the authorities erred in holding that this was a case of concealing particulars of income. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d incorrectness of particulars of income. Quite apart from such findings of the Assessing Officer and the Commissioner(Appeals) which came to be upheld by the Tribunal during the course of assessment, there was nothing further on record during the penalty proceedings to show that in the original return the assessee was not aware about such gross concealment of the income. In fact, it has come on record that the assessee had admitted bogus entries in the accounts and thereby concealing sizeable income. The Tribunal rejected the assessee's contention that the Directors of the company were somewhat illiterate and therefore, did not understand the intricacies of law as well as of account. It was found that the company had turnover of more t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peruse the decision of this Court in case of Manu Engineering Works (supra). In the said decision, the Division Bench came to the conclusion that language of "and/or" may be proper in issuing a notice for penalty, but it was incumbent upon the Assessing Authority to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by them. If no such clear cut finding is reached by the authority, penalty cannot be levied. It was a case in which in final conclusion the authority had recorded that "I am of the opinion that it will have to be said that the assessee had concealed its income and/or that it had furnished inaccurate particulars of such i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal somewhat erroneously sidelined this contention of the assessee on the ground that by virtue of introduction of section 271(1) (1B) with effect from 1-4-1989, such issue would not be relevant. We may notice that such provision reads as under: "(1B) Where any amount is added or disallowed in computing the total income or loss of an assessee in any order of assessment or reassessment and the said order contains a direction for initiation of penalty proceedings under clause(c) of sub-section (1) , such an order of assessment or reassessment shall be deemed to constitute satisfaction of the Assessing Officer for initiation of the penalty proceedings under the said clause(c)." 13. It is not necessary for us to go into this aspect any furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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