TMI Blog1987 (8) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the aforesaid question, may be stated here. The reference pertains to the year 1969-70. The assessee who is a lady doctor filed a return on December 8, 1969. Subsequently, on March 6, 1971, she filed a revised return. The Income-tax Officer, while making the assessment, initiated proceedings for imposition of penalty for concealment of income and called upon the assessee to show cause why penalty should not be levied. In reply to the show-cause notice, the assessee filed a reply, a copy whereof has been attached along with the statement of the case. In the said reply, it was, inter alia, stated that she was not aware of the fact that she had recovered the amounts shown in the revised return from reimbursement of medical practice. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalty. An application was thereafter made by the Commissioner of Income-tax before the Tribunal under section 256(1) of the Act for referring five questions to this court for its opinion. On that application, being dismissed, the Department made an application to this court under section 256(2) of the Act and the question mentioned above has been referred by the Tribunal on the direction of this court. It has been urged by learned counsel for the Department that the Tribunal committed an error of law in taking the view that the assessee was entitled to file a revised return. In this connection, reliance was placed by learned counsel for the Department on the provisions of section 139(5) of the Act and it was urged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Officer provided that the assessee was unaware of the omission or the wrong statement at the time of the filing of the original return. It was, contended that where the omission or wrong statement is pointed out by the Income-tax Officer and a revised return filed thereafter, no advantage can be taken of the revised return by the assessee. The learned judges were not impressed by this argument and held that all that section 139(5) postulates is that the assessee must discover the omission or wrong statement in the first return. It does not state the sources on the basis of which the discovery is made by the assessee. In the instant case, as seen above, the case of the assessee was that she was not aware of the income which she had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said footnote, the Tribunal came to the conclusion on the facts of the instant case that the concealment has not been established to have been detected by the time the revised return was filed. In this view of the matter, the finding of the Tribunal on this point also is apparently a finding of fact based on appraisal of evidence. On this finding, the case clearly fell within the exception pointed out in the case of Amjad Ali [1977] 110 ITR 419 (All). Learned counsel for the Department then placed reliance on a Division Bench decision of this court in Sulemanji Ganibhai v. CIT [1980] 121 ITR 373, wherein it was held that the duty to disclose particulars of his income arises at the time when the assessee furnishes the return under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was never entered in the account books produced before the Department. The assessee when confronted with this situation, by written application dated October 4, 1966, made a voluntary disclosure of concealment of Rs. 6 lakhs. Obviously, that was a case where voluntary disclosure was made after the concealment had already been detected. Reliance was also placed by learned counsel for the Department on H. V. Venugopal Chettiar v. CIT [1985] 153 ITR 376 (Mad). Here the assessment proceedings under the Income-tax Act had already been completed. However, in proceedings under the Wealth-tax Act, certain material was detected which indicated concealment of income. Thereafter, the Income-tax Officer issued notice under section 148 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was made only after the concealment had already been detected. A similar question squarely arose before the Division Bench of this court, although in proceedings under the M. P. General Sales Tax Act, 1958, in CST v. Thakur Savedekar and Co. [1981] 48 STC 293 ( MP). It was held that where the assessee filed voluntarily a revised return before finalisation of assessment showing additional turnover and the Board of Revenue found from the material on record that the assessee had not concealed its turnover or had not filed a false return with dishonest intention, the imposition of penalty on the assessee under section 43 of the M. P. General Sales Tax Act, 1958, for concealment of turnover would not be justified. In the instant case also, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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