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TMI Blog2002 (10) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; 1,10 275 Photri 90.00 7,200 Kuski 33.00 7,260 Bardan 14900.00 Nos. 20,900 -------- 2,04,259 -------- Shri Vinodchandra Mohanlal Patel surrendered Rs. 2,00,000 covering the discrepancy. In spite of that the assessee did not disclose the additional income. During the assessment proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal return, the same was not declared in the original return as the assessee was incorrectly, improperly, and illegality advised. The assessee had paid the advance tax of Rs. 86,912 towards such disclosure when the last instalment was due but a, per such advise, the income was not shown. This mistake has been realised, by the assessee and the assessee is now offering the said income voluntarily though there are certain small mistakes in calculations, etc. (iv) the assessee is offering the entire income so disclosed during the course of survey as his income without reducing anything with a view to buy peace and goodwill of the department and it, is requested that th6 said income be taxed and the assessee please be treated sympathetically accordingly." 3. A notice requiring the assessee to show-cause as to why the penalty under section 271(1)(c) be not levied for concealing was issued. No reply was filed by the assessee inresponse to the show-cause notice. Taking into consideration the entire facts and circumstances of the case, the Assessing Officer levied a penalty of Rs. 1,09,733 by observing that the assessee has concealed the particulars of income or furnished inaccurate p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges. On 18-12-1991 277.40 Quintals of 'Danker'(Paddy) were received in the premises of M/s. Bhagyodava Rice & Pulse Mills (i.e. same premises where any concern is there). This paddy was received for milling by Bhagyodaya Rice & Pulse Mills. This Paddy was considered by Survey Party as my stock and therefore the physical stock is excess to that extent. Similarly, on 20-12-1991 Ashish Corporation received 91 Quintals of Paddy from one Ambica Trading Co. of Sanand. This was received in the morning by truck and this was not entered in the Stock Register because all the postings of inward in Stock Register and other entries are done by the Accountant in the next day. (b) On 20th December, 1991 this was the only purchase which was to be recorded in the next day and therefore this remained to be recorded and not considered by the Survey Party. If this 91 Quintals is considered as genuine purchase then the excess stock is to be further reduced. (c) Thus the total stock which should not have been considered as excess works out to 368.400 kg. as against this the Survey Party worked out the same at 425.00 kg. So the difference now remained only of 56.500 kg. For this I have to respectfully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax Officer has rightly concluded that the evidence produced later on to explain the stock is cooked up evidence. In the note accompanying the revised return, reproduced on page 7 of this order the assessee has stated that though he was required to include the aforesaid income (that is Rs. 2,04,059 in the original return the same assessee was incorrectly, improperly and illegally advised. The proprietor has also stated that advance tax of Rs. 86,912 towards the disclosure was paid when the last instalment was due, but, as per such advice the income was not shown." 6. He also extracted the portion of the Income-tax Law, Fourth Edition, Chaturvedi & Pithisaria - Volume 5 and held that revised return of income was of no help to the assessee. 7. The assessee, besides, reiterating his contention as were raised before the Departmental Authorities, submitted relying upon the decision of the Hon'ble Gujarat High Court in the case CIT v. Manu Engg. Works [1980] 122 ITR 306 that initiation of penalty itself was wrong because the Assessing Officer himself was not sure as to for what default the assessee was guilty. He used the words "OR" "the assessee laws concealed the particulars of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference was invited to the decision of the Hon'ble Calcutta High Court in the case of Rahmat Development & Engg. Corpn. v. CIT [1981] 130 ITR 602. Reference is also invited to the decision of the Rajasthan High Court in the case of Badri Prasad Om Prakash v. CIT [1987] 163 ITR 440 for the proposition that the terms, 'concealment of income' and "furnishing of inaccurate particulars of such income" used in section 271(1)(c) of the Act have to be read as one section and any ingredient may be the cause for the imposition of the penalty; that both the parts may be overlapping in some cases and they have been used distinctively, but, at the same time, the intention of the Legislature should be considered and one case may fall within the purview of both the parts. 10. We have heard the parties and considered their rival submissions. From the facts narrated above, one thing is clear beyond doubt that some stock was found in excess at the time of survey under section 133A. The person available at that time accepted the difference to be of Rs. 2,04,459 and finding no explanation offered to include Rs. 2 lakhs as income of the assessee for this difference in stock. Not only that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in part 2 of his note, extracted above as appended along with the revised statement, and stated that income so declared in the statement under section 131(1) on 20-12-1991 remained to be included. 13. In the appendix to the revised return, the assessee also attempted to fire a blind shot by submitting in note (iii) that he was advised incorrectly, improperly and illegally not to include income. This also remained a bald statement without any corroborative evidence. It seems to have been said just for the sake of saying and gaining the sympathy of the Department. 14. By placing the reliance on the decision of the Hon'ble Gujarat High Court in the case of Manu Engg. Works, the ld. counsel of the assessee raised a legal contention that the Assessing Officer has levied the penalty by observing in the concluding paragraph: "In view of the above facts, I am satisfied that the assessee has concealed the particulars of income or furnished inaccurate particulars of income, licence, liable for penalty." It is submitted that clear cut finding has been given by the Assessing Officer as to for what charge lie was penalising the assessee namely, concealing the particulars of income" or "f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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