TMI Blog1961 (6) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... durai. The Chamber also maintains a record for the prevailing market prices at Ceylon of handloom goods manufactured and despatched from Madurai. For the assessment year 1945-46 (the year ending with April 12, 1945), the assessee submitted a return of the income on October 25, 1945, to the Income-tax Officer, South Madurai, disclosing an income of ₹ 25,437 of which ₹ 25,152 represented the income from business. The return was made on the basis of the entries in the account books maintained by the assessee. No voucher or copy of the balance-sheet or of the profit and loss account accompanied the return. Even earlier, the assessee had submitted the return for the assessment year 1944-45. That return was the subject-matter of scrutiny by the department, which, during the course thereof, obtained on March 13,1945, from the Madurai Chamber of Commerce the duplicate invoices in respect of goods exported to Ceylon by the assessee during the year of account relative to the assessment year 1944-45. The invoices disclosed sales at prices higher than what were contained in the account books maintained by the assessee. Some time thereafter, on March 6, 1946, the auditors of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason which influenced the Tribunal to sustain the penalty imposed on the assessee was the time-lag between the original return filed on October 25, 1945, and the disclosure of the invoices, prices, etc, which was done on March 6, 1946. By our order dated December 3, 1959, we held that the question whether the assessee was guilty of concealment or of deliberately furnishing false particulars in his return within the meaning of section 28(1)(c) could not be judged solely on the basis of the time factor but that other circumstances in the case would have to be considered. The Tribunal has recorded its findings in the revised statement of the case which contains its finding that the assessee's case as to inflation of prices in the invoices is not true but that on the other hand the invoices truly represented the value for which the goods were sold. It follows that the books maintained by the assessee did not represent the transactions correctly. The return based on the books could not properly reflect the true income of the assessee during the relevant year. Reference is made to the fact that the disclosure of the details of the invoice prices was made only in the context of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal return does not contain the true particulars by reason of a genuine mistake or accidental omission, it would be open to the assessee to furnish a revised return containing the correct particulars at any time before the assessment. In Radha Rukmani Ammal v. Commissioner of Income-tax [1957] 31 ITR 704 it was held that, notwithstanding the absence of the qualifying word deliberately in the first alternative in section 28(1)(c) referring to concealment, the concealment also should be a conscious and deliberate one. Where, therefore, the assessee was not conscious of his concealing any particulars at the time when he furnished the return, he could rectify it as soon as he discovers the mistake. In such a case it cannot be said that the assessee was guilty of concealment on the date when he submitted the return. It is not therefore the time of return that is material. What has to be seen is whether the assessee consciously submitted a false return. We agree with Mr. Kesava Ayyangar that, in a case where the assessee furnishes all the particulars but states falsely that the income was less than what the particulars show, the case is not one of concealment or furnishing false partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of the return or at or before the assessment, but whether at any time the assessee deliberately concealed particulars or gave false particulars. That obviously is a question of fact. In the decision of the question certain tests are applied to find whether the suppression, etc., was deliberate. Where for example the original return is incorrect, but the assessee voluntarily submits the correct return before the assessment, the Tribunal would be justified in coming to the conclusion that there was no concealment. This would be so even if the assessee put forward a false case after giving voluntarily the particulars. But where the disclosure was under circumstances which make it not a voluntary act of the assessee, there would be a justification for the finding that there was a concealment because there was an intention to conceal and actual concealment at the beginning, the attempt having been frustrated by other causes. It cannot therefore be held that wherever particulars are given before the actual assessment, there would be no concealment. Mr. Kesava Ayyangar contends that even assuming that the assessee was aware on March 6, 1946, when he submitted the particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery that he has made a previous incorrect return but it certainly does not apply to the facts of this case which show clearly that the previous return was deliberately dishonestly made. It is seriously argued that, notwithstanding that fact, the assessee is still enabled to put in a return correcting his former inaccurate one and that he is to be absolved from liability to have any penalty inflicted upon him. That, it seems to me, is to put a premium on dishonesty and nowhere in the Income-tax Act do we find any provision which does anything of the kind. In Ayyasami Nadar v. Commissioner of Income-tax [1956] 30 ITR 565 the assessee omitted to include in his return a part of his income ; but he admitted the true income before the assessment was completed, and consented to the inclusion of the omitted portion of the income. Rejecting the contention that section 28(1)(c) would not apply and that the concealment did not continue right upto the assessment, the learned judges held that it would be sufficient for the purpose of application of the section that there had been a deliberate concealment of particulars in any return. It follows that, if the assessee, at the time of submitti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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