TMI Blog2015 (10) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... , we set aside the orders of ld.CIT(A) under consideration and restore all the matters to his file with a direction to re-adjudicate them on merits in accordance with law and after hearing the parties. - Decided in favour of assessee for statistical purposes. - I.T.A. No.4615, 4616, 4617/Mum/2013, I.T.A. No.4618/Mum/2013 - - - Dated:- 3-9-2015 - SHRI B.R.BASKARAN, AM AND AMARJIT SINGH, JM For The Appellants : Shri Beharilal For The Revenue : Shri Love Kumar ORDER Per Bench: All these appeals filed by the assessees are directed against the order passed by the ld. CIT(A) confirming the penalty under section 271(1)(c) of the Income Tax Act, 1961 in the hands of the assessees cited above for the years mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished all the details relating to the gift receipts/LTCG before the assessing officer during the course of penalty proceedings, but the AO levied penalty without examining those documents and other explanations furnished by the assessee. The ld. AR submitted that the penalty proceedings are independent proceedings and hence the materials filed by the assessee and explanations offered by him are required to be examined independently. He submitted that the Ld CIT(A) also failed to examine the materials and explanations furnished by the assessees. He submitted that the Co-ordinate Bench of Mumbai Tribunal has considered an identical issue in the case of ACIT V/s Madhulika R. Oswal in I.T.A. Nos.6327 6328/Mum/2011(AY 2003-04 2005-06), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the sake of convenience, we extract below the relevant observation made by the Tribunal in the above said case: 3.2 It is well settled that the findings in the quantum proceedings, though not conclusive qua the levy or otherwise of penalty, constitute good 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 confron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee from penalty, on an admission of a higher income or tax liability subsequently, could only be on furnishing a reasonable explanation or otherwise establishing bona fides, as where the same is on account of a genuine mistake or through inadvertence, and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td Vs. CIT (2013)(358 ITR 593)(SC) and decided the issue. We notice that the head notes discusses about the facts prevailing in the case of MAK Data P Ltd (supra). In our view, the following ratio laid down by the Hon ble Supreme Court is more relevant:- The Assessing officer, in our view, shall not be carried away by the plea of the assessee like voluntary disclosure , buy peace , avoid litigation , amicable settlement etc., to explain away its conduct. The question is whether the assessee has offered any explanation for concealment of particulars of income or furnishing inaccurate particulars of income. The Explanation to section 271(1) raises a presumption of concealment, when a difference is noticed by the Assessing Officer, b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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