TMI Blog2009 (8) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals relates the levy of penalty u/s.271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) on the amounts of cash loans disclosed by the respective assessees in their revised returns filed after issue of notice u/s.143(2) of the Act. Facts , in brief, as per relevant orders reveal as under:- Name of the assessee Date of filing return amount(In Rs.) Date of filing revised return income declared(In Rs.) Date of issue of notice u/s.143(2) Date of Completion of assessment /total income /concealed income(In Rs.) Date of penalty levied u/s. 271(1)(c) and amount(In Rs.) Sh.Manharlal N Modi (HUF) 27-10-05/ 1,23,230 27-10-06/ 9,56,230 18-10-06 23.10.07/ 9,57,725/ 8,33,000 28.04.08/ 2,80,388 Sh.Manharlal N Modi 25.10.05/ 1,68,100 27.10.06/ 3,81,600 18.10.06 23.10.07/ 4,09,014/ 2,13,500 28.04.08 65,331 Smt. Prity Buntykumar Modi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Manherlal N Modi,HUF:- 5. I have carefully considered the issue. It has been stated by the AR that the notice for scrutiny assessment were served on the members of the Group in October, 2006. Two of the members of the Group had field their revised returns in September, 2006 whereas, the remaining had filed in October, 2006. Interestingly, the AR talks of the Group and does not identify the Assessee; when the notice u/s.143(2) was served and when the revised return was filed by her. It has been clearly recorded by the AO that the notice u/s.143(2) dated 18-10-2006 was served on the Assessee on 19-10-2006. The revised return was field on 27-10-2006 i.e. 8 days after the service of the notice. The AR's argument is therefore factually incorrect totally irrelevant. Also irrelevant is his claim regarding the role of the new Tax Advisor appointed by the socalled Group and the advice rendered by them regarding the disclosure of the cash loans. It is therefore absolutely clear that the filing of the revised return by the Assessee was not really a voluntary act. It is also clear that the Assessee and the other member of the Group had taken the chance of introduci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 481 (P H); CIT v. Rajiv Garg Others (2009) 313 ITR 256 (P H) and ACIT v. Prem Chand Garg (2009) 31 SOT 97 (Del)[TM], the ld. AR contended that since the amount of cash loans were disclosed in the revised returns voluntarily, before detection of any concealment by the AO,there is no justification for levy of penalty u/s.271(1)(c) of the Act. On the other hand, the ld. DR supported the findings of the ld. CIT(Appeals). 6. We have heard both the parties and gone through the facts of the case. We find that neither the assessment order nor the penalty order contains any material suggesting that the differential income declared by the assessee in the revised returns, was detected by the Department before these assessees came forward to furnish the revised returns. Undisputedly, the ld. CIT(Appeals) cancelled the penalty levied u/s 271(1)(c) of the Act in the case of Smt. Nirupaben S Modi and Smt. Reshma Jiteshkumar Modi, wherein the returns were revised before issue of notice u/s.143(2) of the Act, declaring cash loans as income from other sources while in these four appeals before us, the ld. CIT(Appeals) upheld the penalty u/s.271(1)(c) of the Act simply because the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead to levy of penalty. In the instant case, there is no positive proof of concealment. 6.1 Similarly, Hon ble Punjab and Haryana High Court in their decision in the case of CIT Vs. Rajiv Garg Others,313 ITR 256, upheld the order of the ITAT in affirming cancellation of penalty on the ground that Revenue had not placed on record any material to discharge the burden of proving concealment while additional income offered by the assessee was done in good faith and to buy peace and that the assessing authority had failed to take any objection that the declaration of income made by the assessee in the revised return and his explanation was not bonafide. 6.2 Here we may refer to the observations of the Hon ble Third Member in the case of Prem Chand Garg (supra) wherein it was held that the surrender of the amount after receipt of the questionnaire could not lead to an inference that it was not voluntary in absence of any material on record suggesting it to be bogus or untrue. The issue as to whether there is concealment of income or whether inaccurate particulars thereof have been furnished, is essentially a question of fact. By the time the Assessing Officer takes up the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings, where the assessee had given an explanation, the duty is cast upon the Revenue to highlight that the revised returns were filed not merely to buy peace with the Department but on account of detection by the Revenue authorities some facts and figures. In the instant case, such an exercise having not been done by the Revenue authorities, in conformity with the decision of the Apex Court in the case of Suresh Chandra Mittal, we are of the opinion that the Assessing Officer has not made out a case for the levy of penalty. 6.4 In the case of Smt. Brij Bala Chaudhary vs. ITO (2004) 82 TTJ (Lucknow) 355 : (2003) 87 ITD 173 (Lucknow), the assessee could not explain a part of capital introduced in her business and therefore, she surrendered ₹ 35,000 for addition under s. 68 due to unexplained cash credit in her capital account. The AO imposed penalty for concealment of income. The Tribunal held that since assessee had made surrender only to purchase peace with the Department and after being compelled by the AO, it was not a fit case for imposition of penalty for concealment of income because concealment of income or particulars of income was not found to be established from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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