TMI Blog2016 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... he information of Benami account with ld. AO. Thus the contention of the assessee that there was no information in the possession of Department about benami account could not be verified. Besides, in considered view the issue needs to be restored to the file of the ld. CIT(A) and as according to the assessee penalty appeals for the assessment years 2004-05 and 2005-06 are pending for decision. I am of the considered opinion that the relevant facts and the issue of imposition of penalty should be decided together with earlier years. It should be duly verified from record whether any information, inquiry or query about Benami bank a/c preceded filing of the revised return by the assessee and whether owning up the said benami account was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the assessment years 2004-05-2005-06. The additions were accordingly confirmed, thereafter, ld. AO initiated penalty proceedings which the assessee neither attended nor made any representation, the penalty was imposed. 2.2 Aggrieved, the assessee preferred first appeal. The ld. CIT(A) referred to AO s observation in quantum proceedings as under:- 2.4 In order u 143(3) date4d 29-12-2008, the Assessing Officer objected to the revised return of income u/s 139(5) by observing as under:- When he was served a notice u/s 143() of the Act for scrutiny assessment, fearing the consequences he offered ₹ 6,85,000/- for taxation in this year. In earlier years, also he offered income on account of cash deposit as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). But the omission or wrong statement, referred to above must have a bearing on the assessment of the assessee itself and is not that every incorrect statement would enable the assessee to file a revised return Hamila Fancy Store vs. CIT (1976) 104 ITR 190 (Mad.). In view of the above, it is very much clear that no omission/ wrong statement was drawn by the assessee in its original return of income but it has intentionally concealed income. In view of above legal position ₹ 6,85,000/- are added back to the total income of assessee as unexplained deposits in his benami bank account generated through suppressed income of his business. For this act of concealment penalty proceedings u/s 271(1)(c ) of the Act are hereby initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai (ITA No. 4960/Mum/2010 A.Y. 2006-06 order dated 22-07-2011) (ii) ACIT vs. Ashok Raj Nath(2012) 19 ITR 070 (Del. Tribunal) (iii) ITO vs. Patil Automobiles, 79 TTJ 359 (T.M.) Pune (iv) Dr. K.C. Baruah vs. ITO, (ITA No. 196 (Gau) of 1976-77 A.Y. 1972-73 order dated 28-09-1977) Gauhati Tribunal. It is contended that the revised return being file to correct a valid mistake and non disclosure the bank account being unintentional and return having been revised before the detection by the Department. It is not a fit case of imposition of penalty. 2.6 The ld. DR on other hand vehemently relied on other decisions holding that penalty can be levied in such circumstances and further relied on Hon'ble Jurisdictional High Court ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for scrutiny u/s 143(2) of the Act by notice dtd. 21-06-2007. The ld. AR of the assessee could not reply to the query of the Bench as to what was the date of hearing fixed by notice u/s 143(2) of the Act. According to him, it was a routine notice. The revised return of income was filed on 16-10-207 i.e. after 04 months from the date of u/s 143(2) notice. Neither the ld. AR of the assessee nor the ld. DR could inform the date of hearing fixed by the said notice, any hearing or the information of Benami account with ld. AO. Thus the contention of the assessee that there was no information in the possession of Department about benami account couldnot be verified. Besides, in my considered view the issue needs to be restored to the file of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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