TMI Blog2016 (9) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ch person to pay by way of penalty which shall not be less than, but which shall not exceed three times the amount of tax sought to be evaded by the reason of concealment of particulars or furnish inaccurate particulars of such income. As noted, the revenue desired to bring in the element of the assessee having furnished inaccurate particulars of its income. The fact that the assessee did make a disclosure of such income in the return filed and the Assessing Officer was not dissatisfied by such disclosure is not in dispute. The assessee having filed the return by the due date for filing return, in which such income was also offered to tax, the question of assessee having furnished inaccurate particulars of the income would not arise. - Decided in favour of assessee. - TAX APPEAL NO. 549 of 2016 - - - Dated:- 22-8-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE APPELLANT : MR NITIN K MEHTA, ADVOCATE FOR THE OPPONENT : MR RK PATEL, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The Revenue is in appeal against the judgment of the Income-Tax Appellate Tribunal dated 9.10.2015 raising following questions for our consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the assessee s appeal holding that in such a case no penalty can be imposed. Hence, the present Tax Appeal by the revenue. 3. Learned counsel, Mr.Nitin K. Mehta for the department submitted that the assessee had made a disclosure of having received bogus share application money of ₹ 5.86 crores. It was only after the survey, that the assessee filed a return in which such income was also admitted. The material on record would clearly suggest that but for the survey the assessee would never have offered such income to tax. The finding of the Assessing Officer as well as CIT (Appeals) to this effect were not reversed by the Tribunal. That being the position, the penalty under Section 271(1)(c) of the Act was leviable. He relied upon the decision of the Supreme Court in case of MAK Data (P) Ltd. v. CIT , reported in 358 ITR 593 . He also relied upon the decision of the Division Bench of this Court in case of Deepak Construction Co. V/s. Commissioner of Income-Tax , reported in 293 ITR 285 and that of Madras High Court in case of Commissioner of Income-Tax V/s. Dr. A. Mohd. Abdul Khadir , reported in 260 ITR 650 . 4. Learned counsel, Mr.R.K.Patel for the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r fringe benefits. Explanation 1.-Where in respect of any facts material to the computation of the total income of any person under this Act,- (A) such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the [Principal Commissioner or] Commissioner to be false, or (B) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed. 7. As noted, the revenue desired to bring in the element of the assessee having furnished inaccurate particulars of its income. The fact that the assessee did make a disclosure of such income in the return filed and the Assessing Officer was not dissatisfied by such disclosure is not in dispute. The assessee having filed the return by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee s sister concern. The assessee thereupon offered a further sum of ₹ 40.74 lacs to avoid litigation and buy peace. The Assessing Officer accepted such further disclosure and brought the said sum of ₹ 40.74 lacs to tax as income from other source and also initiated penalty proceedings with respect to such sum. When the assessee pressed the clause of making a declaration to buy peace, the matter ultimately reached the High Court which accepted the revenue s plea that the assessee had not offered any explanation about concealment of the income. The High Court thus applied explanation (1) to Section 271(1)(c) of the Act and upheld the penalty. This decision was carried by the assessee before the Supreme Court, which, while dismissing the appeal, observed as under : 9. We are of the view that the surrender of income in this case is not voluntary in the sense that the offer of surrender was made in view of detection made by the AO in the search conducted in the sister concern of the assessee. In that situation, it cannot be said that the surrender of income was voluntary. AO during the course of assessment proceedings has noticed that certain documents comprising o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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