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TMI Blog2012 (2) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... ow that there was any malafide intention on the part of the assessee at any stage and has ignored the revised return of income filed by the assessee by registered post on 29.03.1996 declaring income of Rs.`4,48,870/-. 4) That while confirming the penalty orders of Rs.`137,180/- u/s 271(1)(c), the learned CIT(A) has not considered the intimation dated 17.03.1997 u/s 143(1)(a) issued by the learned Assessing Officer accepting income of Rs.`4,48,870/- based on the revised return of income filed on 29.03.1996. 5) That the learned CIT(A) has erred in law and facts in upholding the penalty amount of Rs.`137,180/- and has relied upon the wrong computation worked out by learned Assessing Officer determining the penalty amount. 6) That the learned CIT(A) has not considered the second revised computation of income filed on 27.02.2001 declaring income of Rs.`478,340/- on his own much before issue of notice u/s 148 dated 10.04.2001. That the assessee prays for the leave to add, amend or vary the above grounds of appeal before or at the time of hearing." 2. Facts, in brief, as per relevant orders are that return declaring income of Rs.`4,78,340/- was filed on 07.05.2001 in pursuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he income of ₹ 4,78,340/- was declared as against the total income declared at ₹ 1,72,135/- in the original return. This difference of ₹ 3,06,205/- was nothing but the concealed income of the appellant which was declared on issuance of notice u/s 148. As per law only this return being a valid return could have been taken into account for the purpose of assessment and not the earlier revised returns/revised computation of income, which were not returns in the eyes of law. The Assessing Officer, therefore, correctly treated the difference of Rs.3,06,205/- as having escaped assessment and correctly assessed the same u/s 143(3)/147. Accordingly, his action to this extent is hereby upheld. So far as the assessee's claim regarding credit of taxes paid and the rebate u/s 88 is concerned, these grounds were not pressed vide written argument dated 7.8.2006 for the reason that the appellant's grievance had been met out by the Assessing Officer himself by passing order u/s 154. So far as charging of interest u/s 234A, 234B & 234C is concerned, since it is consequential, the Assessing Officer is directed to charge the same as per law." 4. After receipt of the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,06,205/- has still not been rectified so far. It is further submitted that the assessee had declared income of ₹ 1,72,135/- and US$ 18,000 in his original return of income filed on 28.7.1994 (copy enclosed). It is submitted that assessee had filed revised return of income declaring income of ₹ 4,48,870/- which was sent through registered post on 29.3.1996 and intimation u/s 143(1)(a) was also received by the assessee (copy enclosed). It is further stated that the assessee had also paid taxes much before issuance of notice u/s 148 on 10.4.2001." It is stated that the assessee had also filed revised computation of income on 27.2.2001 (copy enclosed) declaring income of ₹ 4,78,340/- which is the same as was assessed by the learned Assessing Officer vide orders dated 20.7.2001. Thus, there was no change in income between the income declared and the income assessed u/s 143(3)/147. It is submitted that income of ₹ 4,78,340/- was declared by the assessee of his own suo-moto much before the issue of notice u/s 148 issued on 10.4.2001. In view of the above, you are requested to pass rectification orders u/s 154/155 confirming the fact that there was no con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It has further been recorded that the penalty proceedings are being initiated separately. Therefore, it is apparent that the Assessing Officer was satisfied at the assessment state that proceedings u/s 271(1)(c) need to be initiated. As such the claim of the appellant in this regard is factually incorrect and, therefore, rejected." 7. The assessee is now in appeal before us against the aforesaid findings of the ld. CIT(A).The ld. AR on behalf of the assessee contended that since income returned in pursuance to notice u/s 148 has been accepted, there was no concealment of particulars of income .The assessee declared income of ₹ 1,72,135/- plus US dollar 18,000 and paid Income Tax of ₹ 1,04,688/- on this income in the return filed on 3rd August, 1994. This return was revised on 29.3.1996 declaring income of ₹ 4,48,870/- including US$ 18,000 and income from other sources and sent to I.T.O. Durgapur. The AO processed their revised return declaring income of ₹ 4,48,870/- on 17.3.1997 u/s 143(1)(a) of the Act and refund of an amount of ₹ 19,769/- was determined. Subsequently, the assessee filed revised computation of income on 27.02.2001 declaring income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee paid the tax on the income returned originally i.e. 1,72,135/- while the return filed on 2.4.1996 and the subsequent revision of computation of income vide letter dated 27.2.2001 was treated as nonest in quantum appeal. It is further observed by the ld. CIT(A) that the second computation revised by the assessee during the re-assessment proceedings, declaring further income of ₹ 29,476/- could not take the place of particulars filed in the original return of income. Accordingly, the ld. CIT(A) concluded that but for the reopening these amounts would not have been offered for taxation by the assessee and therefore, while rejecting the contentions of the assessee in relation to recording of satisfaction, upheld the levy of penalty. We find that the assessee filed return declaring income of ₹ 1,72,135/- besides consultancy income of 18,000/-US dollars on 3.8.1994 and paid tax of ₹ 97,136/-. Subsequently, a revised return was sent on 29.3.1996 and received by the AO on 2.4.1996 wherein the assessee declared income of 4,48,870/- and self-assessment tax of ₹ 1,27,000/- was also paid on 29.3.1996. This revised return was processed by the AO u/s 143(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to buy peace of mind and avoid litigation, penalty cannot be imposed merely on account of higher income having been subsequently declared. The Hon'ble Apex Court in case of CIT v. Suresh Chandra Mittal, [2001] 251 ITR 9/119 Taxman 433, upheld the decision of the Hon'ble Madhya Pradesh High Court rendered in the case of CIT vs. Suresh Chandra Mittal [2000] 241 ITR 124, where in similar circumstances it was held that the initial burden lies on the revenue to establish that the assessee had concealed the income had furnished inaccurate particulars of such income. The burden shifts to the assessee only if he fails to offer any explanation for the undisclosed income or offers an explanation which is found to be false by the Assessing Officer. In CIT vs. Guru Ram Dass Fruit And Vegetable Agency.,254 ITR 361(P&H), the assessee had filed the revised return prior to the date of issue of notice under section 148 of the Act. The proceedings under section 148 of the Act were initiated long after the assessee had filed the revised return. In these coircumstances, on the cumulative consideration of various facts, Hon'ble High Court upheld the findings of the ITAT, cancelling the levy of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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