TMI Blog2005 (5) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the time-limit prescribed under section 271(1)(c) for imposition of penalty - - - - - Dated:- 5-5-2005 - Judge(s) : SWATANTER KUMAR., MADAN B. LOKUR JUDGMENT The judgment of the court was delivered by Swatanter Kumar J.- The facts giving rise to the present appeal under section 260A of the Income-tax Act, 1961 are that Sh. Kamal Chand Jain, assessee, filed the return for the assessment year 1991-92 on October 4, 1991 declaring a net income of Rs. 1,00,880. Subsequently, the case was taken up for scrutiny under section 143(3) with the approval of the competent authority. Notices were issued to the assessee and after providing opportunity to the assessee, the Assessing Officer made an addition of Rs. 3,77,950 in terms of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 271(1)(c) is imposable. I, therefore, hold that the Assessing Officer was not justified in imposing the penalty on the surrendered amount. The decision of the hon'ble Supreme Court in the case of Shadi Lal Sugar [1987] 168 ITR 705 was given after the amendment to section 271(1)(c) where the word 'deliberately' was omitted, though in the assessment year before the hon'ble Supreme Court the word 'deliberately' was on the statute. In this connection, I have perused the decision on the Andhra Pradesh High Court in the case of B.C. Krishnamurty and Co. [1980] 121 ITR 326. The hon'ble High Court dealing with this issue held as under: 'Even after the omission of the word "deliberately" by the Finance Act of 1964 the legal position i.e. ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal vide its order dated July 15, 2002. The Tribunal while accepting the appeal of the Department and setting aside the order of the first appellate authority held as under: "We find that the law as it stands goes against the arguments advanced by learned counsel for the assessee. The Delhi High Court and the Supreme Court have held that penalty under section 271(1)(c) is clearly leviable after the insertion of the Explanation to section 271(1)(c) and the onus was clearly on the assessee to rebut the claim that the assessee had concealed the particulars of his income which he has failed to do. The assessee's claim that he had made the surrender to buy peace with the Income-tax Department would also not prevent levy of penalty for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, the Commissioner of Income-tax had formed an opinion that it was not a case for imposition of penalty under the provisions of section 271(1)(c) of the Act. This finding arrived at by the first appellate authority was also based upon a finding of fact arrived at by the authority on the premises that surrender was made during the course of the assessment proceedings and was not a direct consequence of detection of concealment by the Department. It was held to be a voluntary surrender. Even the explanation given by the assessee was found to be bona fide. The above conclusions of the Commissioner of Income-tax were disturbed by the Tribunal as already noticed. According to the Tribunal it was a case of deemed concealment and even the explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91-92. The Explanation to the provisions of section 271 of the Act were in force at the relevant time. Explanation 1 to this section was made effective from April 1, 1976. Under the Explanation where an explanation offered by the assessee is found by the Assessing Officer, or even the Commissioner (Appeals) to be false the assessee fails to substantiate such explanation, or prove that the explanation was bona fide, then the amount added or disallowed in computing the total income of such person as a result thereof would be deemed to represent the income in respect of which particulars have been concealed. In other words, there is a deemed addition in the event the concerned authorities record their satisfaction that there is no proper and p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
