TMI Blog2018 (1) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed by the Tribunal and restore the order passed by the Assessing Officer. - Decided against assessee - I. T. A. No. 119 of 2012. - - - Dated:- 6-10-2017 - Antony Dominic And Dama Seshadri Naidu JJ. For the Appellant : P. K. R. Menon, Senior Counsel, Government of India (Taxes) and Jose Joseph, Standing Counsel, for the Income-tax, For the Respondent : S. Arun Raj, Advocate, JUDGMENT Antony Dominic J.- 1. The Revenue has filed this appeal questioning the legality of the order passed by the Income-tax Appellate Tribunal, Cochin Bench in ITA No. 343 of 2009 concerning the assessment year 1992-93. 2. The assessee is engaged in the manufacture and sale of tins and is also a partner in some firms. Assessment was completed under section 143(3) making additions on account of unaccounted sale of suppressed output of tins at ₹ 16,60,854, unexplained credits in cash book of ₹ 1,88,000 and unexplained credits from others totalling ₹ 5,15,000. In appeals that were filed before the Commissioner of Income-tax (Appeals) and the Tribunal, the order was modified. However, in ITA Nos. 140 and 149 of 2001, the original assessment was upheld by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Whether on the facts and in the circumstances of the case and in the light of the presumption of concealment the Income-tax Appellate Tribunal is right in law in finding that 'the Tribunal is of opinion that it cannot be considered that the assessee has furnished inaccurate particulars of income or concealment of any part of income' and is not the above finding and similar finding elsewhere in the order of the Tribunal perverse and against the decision of the Supreme Court in Madhusoodhanan Dharmendra Textiles etc., and various Kerala High Court and other High Court decisions ? 5. We heard the counsel for the Revenue and the learned counsel for the assessee and have considered the submissions made. 6. A reading of the order passed by the Tribunal show that in so far as the penalty levied on the addition of ₹ 16,60,854 towards unaccounted sale and surplus production of tin, the reasoning of the Tribunal as contained in paragraph 9 of the order reads as under : 9. . . . Can we say in such a situation that the assessee has submitted inaccurate particulars of production and sale of tin? This Tribunal is of the opinion that the entire material are availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from Trichur Branch to Head Office, the assessee admittedly made entries in the books of the Trichur Branch for the transfer of ₹ 1,88,000. The extract as found at page 8 of the assessment order shows that the total cash balances as available on April 13, 1991 is ₹ 3,91,245. Out of this the assessee has paid ₹ 1,84,948 to other person, the details of which is not available. The assessee has also claimed to have paid ₹ 1,88,000 on transfer to the Head Office. If this is so, the total outgoing from Trichur branch would be ₹ 3,72,948. The available cash balance as on April 13, 1991 is ₹ 3,91,245. Therefore, even after the transfer of the amount to the Head Office, the cash balance available with the Trichur branch is ₹ 18,297. However, the balance was shown as ₹ 2,06,297. This may be an arithmetical error. However, in the quantum appeal, this Tribunal found that on March 18, 1992, the cash balance came down to as low as ₹ 9,329. Therefore, it may not be correct to say that there was no cash balance available for transfer of Rs. l,88,000 as on April 13, 1991. The total receipt as on April 13, 1991 in Trichur Branch was ₹ 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income or furnished inaccurate particulars of such income, or (d) . . . he may direct that such person shall pay by way of penalty,- . . . (iii) in the cases referred to in clause (c) or clause (d), in addition to any tax payable by him, a sum which shall not be less than, but which shall not exceed three times the amount of tax sought to be evaded by reason of the concealment of particulars of his income or fringe benefits or the furnishing of inaccurate particulars of such income or 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 Deputy Commissioner (Appeals) or the Commissioner (Appeals) 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 resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son, (A) such person fails to offer an explanation or offers an explanation and the officer concerned has found it to be false, or (B) such person offers an explanation which he is unable 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. Once these provisions of clause (A) or (B) are satisfied, then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purpose of section 271(1)(c) be deemed to represent the income in respect of which particulars have been concealed. 12. This court has also taken note of the judgment of the Rajasthan High Court in CIT v. Raj Trading Co. [1996] 217 ITR 208 (Raj), where it was held that furnishing of incorrect particulars and concealing the particulars of income are different things and that the words furnishing inaccurate particulars and income refer to the particulars of his income which have been furnished by the assessee and the requirement of concealment of income is that income which has not been declared at all or not even recorded in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed on the assessee penalty of ₹ 15,000 finding the assessee guilty of concealment under section 271(1). . . . The fact that the assessee purported to file a 'revised return' after his coming to know that the Income-tax Officer had already information in his possession regarding receipt by the assessee of the sum of ₹ 1,17,633 from the Executive Engineer, Irrigation Division, Calicut, which had not been shown in the original return will not absolve the assessee from culpability under section 271(1)(c). In the light of our conclusion that at the time of filing the original return the assessee must be taken to have duly aware of his having received the aforesaid amount from the Executive Engineer and had nevertheless omitted to disclose the said receipt in the original return, the second return filed by the assessee cannot be regarded as a 'revised return' filed under section 139(5) of the Act since it could not be said that there was any discovery by the assessee of any omission or wrong statement having been made by him by inadvertence in the original return. We are supported in this view by the decision of the Assam High Court in F. C. Agarwal v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
