TMI Blog2013 (7) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue, it was submitted by the ld. Departmental Revenue (DR) that no reasonable explanation, much less supported by evidence, has been furnished by the assessee. The very fact that such transactions have been entered into from year to year would impugn the bona fides of the assessee beyond doubt. The only issue arising in the instant case, i.e., in view of the assessee having accepted the transactions as representing her undisclosed income, is whether the revised returns filed by the assessee could be treated as revised returns u/s.139(5), or not so, being not voluntary but prompted by the action of the Revenue. 2.2 The ld. Authorized Representative (AR), the assessee s counsel, would on the other hand submit that the issue arising i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleted the penalty, stating that the Assessing Officer (A.O.) had made no further enquires except the enquiry u/s.133(6). The assessee had surrendered the amounts on a clear understanding that no penalty proceedings would be initiated, with a view to avoid litigation. As such, the principles laid down by the apex court in the case of CIT vs. Suresh Chandra Mittal [2001] 251 ITR 9 (SC) were applicable. There being no change in the facts and circumstances in the instant case, i.e., vis- -vis for that year, the impugned penalty may be deleted, treating the matter as covered. However, on being pointed out by the Bench that the assessee had during the survey accepted the LTCG as arising on the transactions entered into with Shri Mukesh M. Choks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2006. This was on the basis of the information with the Revenue that the said company, as well as its Director, Shri Mukesh M. Choksi, were engaged in giving accommodation entries for Long Term Capital Gains, business loss, etc. as per the requirements of the clients, against the receipt of cash, on commission basis. Enquiries were also conducted with various banks; Shri Mukesh M. Choksi operating several bank accounts in the names of various companies, including MSPL. In view of the incriminating materials found, the same was converted into a search action. Shri Mukesh M. Choksi on being examined on oath thereat, admitted to extending accommodation (hawala) entries for profit or loss, as the case may be, explaining the modus operandi bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional tax rate as well as the exemption u/s.54F of the Act on the said income, which claims were admitted for being withdrawn per revised returns. Shri Ratanchand J. Oswal and his family members were also found to be in receipt of gifts totalling to ₹ 1040.50 lakhs from various persons during the previous years relevant to A.Ys. 2002-03 to 2005-06, which stand tabulated at Question # 20 of the said statement. Shri Mukesh M. Choksi was himself found to have given two gifts of ₹ 2.5 lakhs each on 20.03.2003, besides similar gifts from his wife, Smt. Minakshi M. Choksi to Madhulika Oswal, the assessee, even as admittedly Mukesh Choksi was not personally known to them (refer Ans. to Q. # 13). Except for a gift of ₹ 10 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence toward the concealment of particulars of income (refer: CIT vs. Somnath Oil Mills [1995] 214 ITR 32 (Guj.)). The order by the tribunal dated 28.03.2013 for A.Y. 2006-07 (supra) would also be relevant as the facts of the two cases are the same, which is also apparent from the fact that the tribunal s order for A.Y. 2004-05, exonerating penalty, is common for all the family members. In fact, the tribunal, as a reading of its order dated 28/3/2013 would show, was also confronted with the common order deleting the penalty for A.Y. 2004-05. The factual findings issued by the tribunal vide its said order, equally applicable to the assessee, have to be regarded as final inasmuch as the tribunal is a final fact finding body. Further, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a result of a deliberate action. This in fact represents trite law, as explained by the apex court as in the case of G. C. Agarwal vs. CIT [1990] 186 ITR 571 (SC). Where the additional offer was not per revised returns, and only upon discovery of the understatement of the income by the Revenue, the same cannot be regarded as voluntary, saving penalty (refer, inter alia, Add. CIT vs. Radhey Shyam 1980] 123 ITR 125 (All) and CIT vs. J. K. A. Subramania Chettiar [1977] 110 ITR 602 (Mad)). It needs to be emphasized that the burden of proof, in view of Explanation 1 to section 271(1)(c), is only on the assessee, and not on the Revenue, so that it is not required to establish concealment, but is deemed by law where the assessee fails to furni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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