TMI Blog2002 (8) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... not found satisfactory, therefore, it is a fit case of penalty on deemed concealment. The Assessing Officer as well as the Commissioner of Income-tax (Appeals) have rightly imposed the penalty under section 271(1)(c), the Tribunal has committed an error in cancelling the penalty. - - - - - Dated:- 2-8-2002 - Judge(s) : Y. R. MEENA., SHASHI KANT SHARMA. JUDGMENT This appeal is directed against the impugned order of the Tribunal dated September 29, 2000. The cash amounting to Rs. 5,92,340 was seized by the police thana, Sikar, from the appellant on April. 8, 1992. A panchnama was drawn by the Income-tax Department on April 9, 1992, and the said cash was requisitioned and taken into possession. Consequent to the seizure, the state men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary disclosure and he imposed the penalty to the extent of 100 per cent. which has been confirmed by the Commissioner of Income-tax (Appeals) in appeal. In appeal before the Tribunal, the Tribunal has taken the view that the assessee has filed the return voluntarily before receipt of the notice from the Income-tax Department and when the cash which was found by the police has been surrendered for tax, no penalty for concealment of income should be imposed on these facts. The Tribunal has also taken the view that when the brother and brother-in-law of the assessee have not been examined, penalty should not be imposed. Heard learned counsel for the parties. Mr. Mathur, learned counsel for the appellant, submits that the assessee has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril 8, 1992, an amount of Rs. 5,92,340 was seized by the police thana, Sikar, from the assessee-respondent. The assessee claimed that part of the amount belongs to his brother, brother-in-law and part of the amount belongs to him, but he has not given any detail nor any specific purpose has been shown why he is carrying the amount belonging to his brother and brother-in-law. He has surrendered that amount for taxation by filing of the return. In our view, the income surrendered after that amount has been seized, cannot be said that the assessee has voluntarily disclosed the concealed income. It is true that penalty under section 271(1)(c) is not automatic after addition in the income but at the same time the ratio laid down by their Lords ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The principle enunciated in Anwar Ali's case [1970] 76 ITR 696 (SC), that mere rejection of the explanation of the assessee is not sufficient for levying penalty and that the Revenue must go further and establish that there has been a conscious concealment of particulars of income or a deliberate failure to furnish accurate particulars, is no longer necessary. The cases to which the said Explanation is attracted have to be decided in the light of the law enunciated in Mussadilal Ram Bharose's case [1987] 165 ITR 14 (SC) and K. R. Sadayappan's case [1990] 185 ITR 49 (SC)." In the case of CIT v. Mussadilal Ram Bharose [1987] 165 ITR 14, 22 (SC), their Lordships observed as under: "....the presumption is raised against the assessee that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation is attracted have to be decided in the light of the law enunciated in Mussadilal Ram Bharose's case [1987] 165 ITR 14 (SC) and K.R. Sadayappan's case [1990] 185 ITR 49 (SC)." After this amendment the theory of deemed concealment has been brought in. In case addition is made and the explanation submitted by the assessee is not satisfactory, the income added should be treated as deemed concealment. In the case in hand, the amount of Rs. 5,92,340 was seized from the assessee by the police. He disclosed that part of the amount belongs to his brother, brother-in-law and part of the amount belongs to him. No specific figure of amount has been given how much belongs to his brother, how much belongs to his brother-in-law and how much bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion inserted by the amendment in section 271(1)(c). It is also not in dispute that the amended provisions of section 271(1)(c) are applicable in the case in hand. Even counsel for the assessee has not suggested in this case what type of material should be brought on record by the Income-tax Officer for imposing penalty under section 271(1)(c) of the Act of 1961. When the income has been surrendered after seizure, it cannot be said that the assessee has surrendered the income voluntarily. After seizure of any amount or income that no more remains concealed income for the Department. The explanation given by the assessee was not found satisfactory, therefore, it is a fit case of penalty on deemed concealment. The Assessing Officer as well ..... X X X X Extracts X X X X X X X X Extracts X X X X
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