9911796707
TMI Blog2008 (7) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... te Tribunal, Delhi Bench "I", New Delhi (hereinafter referred to as "the Tribunal") in I. T. A. Nos. 908/Delhi/2005, 909/Delhi/2005, 910/Delhi/2005 and 911/Delhi/2005 in the case of four different assessees for the assessment year 1998-99. In all these appeals, a common issue regarding imposition of penalty under section 271(1)(c) of the Act has been raised in the case of the assessees, who are of the same family. The facts and circumstances in all these appeals are identical, therefore, we are taking up the facts from I. T. A. No. 353 of 2008. 2. In this case, the assessee derived income from manufacturing of cotton yarn and cotton waste. The assessee filed a return of income on October 30, 1998, which, inter alia, included long-term capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer, after considering the submissions of the assessee, imposed a penalty of Rs. 3,95,930 while holding that the assessee had filed the return on April 30, 2003, after the issuance of notice under section 148 of the Act. As such, the return was filed after the detection of the concealment of income by the Department and since the assessee had intentionally played fraud to avoid higher rate tax of 30 per cent. as against 20 per cent., applicable on declaration on capital gains, therefore, the assessee was held guilty in terms of section 271(1)(c) of the Act. 3. Feeling aggrieved against the aforesaid order, the assessee went in appeal before the Commissioner of Income-tax (Appeals), Karnal, who, vide its order dated December 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was issued on March 21, 2003, and the assessee filed its return on April 30, 2003. The Commissioner of Income-tax (Appeals) has recorded a finding that the enquiries conducted by the DDIT (Inv.), Gurgaon, regarding the nature of transaction, sale and purchase of shares carried out through the broker Shri S. S. Mehta enabled the Assessing Officer to hold the capital gain as bogus. But this was not communicated to the assessee at the time of issuance of notice under section 148 of the Act. Therefore, the return of income filed by the assessee in pursuance of notice under section 148 of the Act wherein the income from sale of shares offered cannot be said to have been filed after detection of bogus capital gain by the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred that the penal provisions of section 271(1) (c) are attracted. In order to apply the penal provisions of section 271(1) (c) it is to be necessarily inferred that there is positive act of concealment of income or furnishing of inaccurate particulars of such income by the assessee. In the instant case, it is clearly brought out by the Commissioner of Income-tax (Appeals) that no chance has been given to the assessee to examine the broker regarding his denials. The Commissioner of Income-tax (Appeals) has also referred to a communication of the DDIT (Inv.) dated March 11, 2003, addressed to the Commissioner of Income-tax, Karnal, wherein it is stated that the feasibility to produce the broker and cross-examination was difficult. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier filed the original return, concealing the said income by deliberately furnishing inaccurate particulars of that income in the original return. This amounts to admission of the assessee itself that it has earlier furnished inaccurate particulars of income and on its detection by the Department, the assessee offered the concealed income for tax after issuance of the notice under section 148 of the Act. Learned counsel submitted that this fact itself proves that the assessee had deliberately furnished inaccurate particulars of his income with the intention to avoid higher rate of tax. Learned counsel further submitted that the assessee had accepted the order of assessment passed by the Assessing Officer under section 143(3) of the Act an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself from any penal action. Later on, on the basis of revised return, the assessment was framed and the return submitted by the assessee was regularized as it is. During the course of assessment, the aforesaid explanation given by the assessee was neither rejected nor was it held to be in mala fide. The Tribunal has recorded a pure finding of fact to the effect that the Revenue has not placed on record any material or evidence to discharge its burden of proving concealment. In the assessment order no such finding was recorded. The Department has simply rested its conclusion on the act of the assessee of having offered additional income in the return filed in response to the notice issued under section 148 of the Act. The Tribunal has fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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