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TMI Blog2015 (12) TMI 1888X X X X Extracts X X X X X X X X Extracts X X X X ..... one appeared on behalf of the assessee when the name of the assessee was called. No adjournment application has been filed by the assessee seeking adjournment of the hearing. Therefore, the appeal is being decided on the basis of material available on record and after hearing the Ld. Departmental Representative. 4. Facts of the case, in brief, are that the assessee is an individual and derives income from country liquor on retail basis and Cinema Theatre. He filed his original return of income on 24.03.2006 declaring total income of Rs.77,862/- and agricultural income of Rs.3,07,300/-. The ADIT (Investigation), Nashik has conducted open enquiries. During the course of such enquiry, the assessee had furnished the copies of 7/12 extracts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It was further submitted that the Assessing Officer has discretion to levy or not to levy the penalty. No satisfaction is given in the assessment order and no mens rea is found out and was absent. 6. However, the Assessing Officer was not satisfied with the explanation given by the assessee. He noted that the unexplained income of Rs.3,00,000/- shown by the assessee as agricultural income has been offered by the assessee in the revised return after enquiries were conducted by the Department. The source of funds of Rs.3,00,000/- could not be proved by the assessee either during the course of enquiries conducted by the Department or during the course of assessment proceedings. The assessee was not able to explain the sources of fund. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any compulsion or constraint of exposure to adverse action by the Department. Regarding the various decisions, it was submitted that the Assessing Officer is not justified in levying penalty of Rs. 99,329/-. However, the Ld. CIT(A) was also not satisfied with the explanation given by the assessee and confirmed the penalty by observing as under :- "6. I have carefully gone through the submission of the appellant, penalty order, assessment order and material on record. It is an undisputed fact that the appellant in his statement recorded u/s 131 of the IT Act on oath by ADIT (Inv-Il), Nashik on 19/09/2007, inter alia confessed that the agricultural income of Rs.3,07,300/- shown by him in AY 2005-06, from the sale of agricultural produce did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011) 331 ITR 458 (All) has held the levy of penalty u/s 271(1)(c) justifiable where the assessee had surrendered his income after the AO had made substantial progress in the investigation. The High Court has held that such surrender cannot be held to be voluntary nor made bonafide, so as to avoid penalty. In this case the appellant had filed the revised return with the knowledge that the department had detected the discrepancies in the 7/12 extracts vis-a-vis sale bills of various agricultural produce for which agricultural income was shown in the original return. Under the facts and circumstances of the case, I am of the considered view that the appellant furnished inaccurate particulars of the income intentionally to evade tax and the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut in 7/12 extract food grain shown is differ other than shown in the books of account. This is not tally. Why? Ans : Yes it is certain that there is difference in the agriculture income hence I declare my addition income as a business income for A.Y. 05/06 & A.Y. 06/07 of Rs.300000/- & Rs.50000/- respectively that the said agriculture land is owned by me & I got the agriculture income." 10. From the above, it is clear that the assessee had no plausible explanation towards the source of Rs.3,00,000/- which he had introduced in his business as agricultural income. Although the assessee has filed the revised return by disclosing the additional income of Rs.3,00,000/- the same cannot be said to be voluntary because the return was filed only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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