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TMI Blog2014 (5) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax: (2013) 358 ITR 593. 3. For AY 2009-2010, the assessee filed his return of income reporting Rs. 4,35,757/-as income. During the assessment proceedings, the AO noticed that the assessee was ordinarily engaged in the business of supplying earth soil purchased from farmers, by way of excavation of land, which he used to supply to various construction and other companies for land filling at different sites. The assessee's books of accounts were duly audited and examined by the AO. During the course of the assessment, the assessee produced various materials in the form of bank statements, sale purchase vouchers, books of accounts verified on test check basis etc. The Assessing Officer's was concerned in respect of the payment made to sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls vouchers for expenses vouchers for the purchase of diesels, repair and books of the account are produced for examination.'' The assessee had also responded to the queries of the Assessing Officer as under:- "That the assessee has also undertaken business in the jobbing of the shares of the private companies on which it has earned a margin of .5% to .75% as is usual in the stock market. The D-mat account is not filed as desired by your good self since the assessee has undertaken jobbing of unlisted companies only. The photocopies of the job transactions along with photocopy of the statement of the companies whose shares were undertaken for jobbing business are enclosed and the original produced for examination. That photocopy of the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared in the return of income of Rs. 4,35,757/-. This will result in an addition of Rs. 70,64,243/- to the declared income of the assessee, Looking to the totality of facts and surrounding circumstances, the surrender made by the assessee is accepted, which will also cover up low profit shown by the assessee. Accordingly, an amount of Rs. 70,64,243/- is being added to the declared income of the assessee. Penalty proceedings under section 271(1)(c) is being initiated separately and judicious decision would be taken on the basis of facts of the case and after due deposit of taxes by the assessee." 6. By an order dated 27.06.2012, the Assessing Officer imposed a penalty for a sum of Rs. 47,96,000/- under Section 271(1)(c) of the Act at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r". The matter went up to the High Court which rejected the assesse's argument that the surrender was voluntary and penalty not warranted. The Supreme Court confirming the approach and decision of the High Court, observed as follows:- " 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 comprising of share application forms, bank statements, memorandum of association of companies, affidavits, copies of Income Tax Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, vouchers, sale bills etc. During the course of further enquiry in the assessment proceedings. The assessee voluntarily offered a sum of Rs. 75 lacs for assessment stating that even though all the material existed, yet in order to buy peace it was offering the amount to tax. The facts of this case are clearly such that the decision in MAK Data (Supra), in the opinion of this Court, cannot be attracted. The assessee at no point seem to have accepted the revenue's contentions that such claimed expenditure was bogus and that it was not allowable, he offered the amount only to buy peace. There is also no finding by the AO that the appellant had failed to offer an explanation in respect of the income returned or had failed to disclose materi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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