9911796707
TMI Blog2015 (10) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... enue carried out survey operation under section 133A of the Act in the business premises of M/s Mahasagar Securities Pvt Ltd. At the time of survey proceedings, a sworn statement under section 131 of the Act was recorded from Shri Ratanchand S Oswal, senior member of family. He was questioned about the Long Term Capital Gains (LTCG) and gifts receipts declared by his family members. In the sworn statement, he surrendered the LTCG as well as gifts receipts as income of the respective family members. The assessments of the years under consideration were reopened in the hands of assessees herein by issuing notices u/s 148 of the Act. Though the assessees, initially filed letters stating that the returns of income filed earlier may be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to re-adjudicate the matter on merits in accordance with law. He also relied upon some more case law in support of his contentions that the additions made in the assessment order would not automatically give rise to penalty. Accordingly, the ld. AR prayed that all these appeals may be restored to the file of the ld.CIT(A) for examining the materials and explanations furnished by the assessees. 3. On the contrary, the ld. D.R submitted that another co-ordinate Bench of Mumbai Tribunal has considered an identical issue in the case of other family members, viz., Rishi R Oswal V/s Jt.CIT in ITA Nos. 3331 to 333/Mum/2013 (AY-2002-03 to 2004-05), dated 12.12.2014 and Ratanchand S Oswal V/s JCIT in ITA No.3329 and 3330/Mum/2013 (AY-2002-03 and 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 would be more so in the instant case as, as a narration of facts would show, are not in dispute. In view thereof, in our clear view it is not possible to treat the matter as covered or even to take a view that the principles laid down by the apex court in the case of Suresh Chandra Mittal (supra), wherein revised returns showing higher income were considered as an act of voluntary surrender in good faith, so that it would not attract levy of penalty; as applicable in the instant case. 3.3 Penalty, however, being not automatic, and penalty proceedings being separate and dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71(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 furnish an explanation or offers an explanation which is either found to be false or it is unable to substantiate (so that it is only a bald claim), with the same being bona fide and accompanied by disclosure of material facts. 3.4 In the facts of the present cases, the penalties stand deleted by the ld. CIT(A) not on the basis of any finding/s by him, but by following the decision by the tribunal in the assessee's case for A.Y. 2004-05. The said order, as explained hereinbefore, would not hold in the conspectus of the case, particularly considering the findings by the Revenue in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reliable evidence. When the initial onus placed by the explanation, has been discharged by him, the onus shifts on the Revenue to show that the amount in question constituted the income and not otherwise." As already noticed, the tax authorities have not considered the materials and explanations furnished by the assessee. We find that the decision rendered in the case of Madhulika R. Oswal (supra) is in accordance with the ratio of the decision rendered by Hon'ble Supreme Court in the case of MAK Data P Ltd (supra). Accordingly, consistent with the view taken by the Co-ordinate Bench of the Tribunal in the case of Madhulika R Oswal (supra), we set aside the orders of ld.CIT(A) under consideration and restore all the matters to his file w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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