TMI Blog1979 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The return of income filed by him was on the basis of payment certificates received from the various authorities, under whom he executed the contracts. For the assessment year in question, he first returned his total income at Rs. 13,480, on the basis of the payment certificates received from the Executive Engineer, Birpur Division. This return was filed on 23rd February, 1970. On the 30th May, 1970, he filed a revised return, this time returning a total income of Rs. 33,710. Another return (second revised) was filed on the 11th January, 1972, returning total income of Rs. 48,850. The first revised return was filed on the basis of further payment certificates having been received from the Head Works Division, Kosi Project, Nepal, Bharda Division Project, Nepal and Raghopur. The second revised return was filed on the basis of further payment certificates from the Nirmali Division, Nepal.The total figure of payment, as indicated in the second revised return, formed the basis, on which the ITO computed the assessee's total income. The assessment order was passed on the 20th January, 1972, that is to say, nine days after the second and the final revised return was filed by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t not be deliberate intention to conceal the particulars of his income or fraud in returning correct income on the part of the assessee but the very fact that the assessee had not disclosed in his original return the income from the huge payments he received by execution of jobs goes to suggest that there was gross negligence on his part and he was liable to penalty. The entirety of the circumstances would indicate that this was a fit case where penalty should have been levied ........ The Tribunal having confirmed the levy of penalty under s. 271(1)(c), the aforesaid two questions arise for the opinion of this court. The short argument made on behalf of the assessee is that the Tribunal had no material before it to infer that the revision of the returned income was with an intention to conceal the particulars of income. According to learned counsel for the assessee, the Tribunal had not found that the revision of the return of income was an outcome of the detection of concealed income by the ITO. On the contrary, the assessee's conduct was that he voluntarily went on revising his return of income as and when he came to receive the payment certificates, which was the only basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he total payments received by him during the year in question, which have been accepted as correct and which has formed the basis for determining his total income. It is also not denied that the submission of the revised returns was voluntary, without any concealment having been detected by the ITO. On these facts, it will be difficult to come to the conclusion that the assessee had a criminal intention, to conceal his income by not disclosing it in its entirety, in his original return. A criminal intention must be visible from some action or conduct on the part of the assessee. The IAC as well as the Tribunal have only found one fact that the assessee did not return the whole of his total income in the original return itself and this is based on the presumption that he was fully aware of the volume of work done by him, particularly when he was spending a good lot of money on the construction of a house. The IAC, however, has said that the construction of the house was spread over three years which included the two previous assessment years. These observations did not indicate mens rea on the Part of the assessee, when in his original return he did not return the whole of his total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f F. C. Agarwal v. CIT [1976] 102 ITR 408. The relevant observation is at pp. 418 and 419. It reads as under: " If after having furnished the return the assessee discovers that some omission has taken place or some wrong statement has crept in in the return, he may file a revised return wherein he may correct the omission or the wrong statement made in the original return. Sub-section (5) further provides that in order to enable an assessee to file a revised return as contemplated under sub-section (5) the omission or wrong statement that might have occurred or crept in in the original return, must be discovered by the assessee himself. In other words, if after examining the return and accounts in the proceedings the discovery of the omission or wrong statement is made by the departmental authority and thereafter the revised return purported to be under sub-section (5) is filed, that will not be considered as a revised return under sub-section (5). As a proposition of law it may be correct that if a revised return as contemplated under subsection (5) is submitted before the assessment is made after the assessee having discovered some omission or some wrong statement, in the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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