TMI Blog2004 (8) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The assessment was completed on a total income of Rs. 6,35,836. The other relevant facts noticed from the penalty order of the AO are reproduced as below: "This case is related to the Mayabhai group on which a search under s. 132 was carried out on 13th June, 1989. Consequently, the group went to the Settlement Commission and the final order of the Settlement Commission under ss. 245D(4) and 245E was passed on 31st May, 1994 received on 4th Aug., 1994. On perusal of para 23 of the above order, it is stated that a M/s Alin Enterprises, the proprietary concern of M/s Mayabhai Family Trust (in which the assessee is a beneficiary to the extent of 20 per cent) had filed an application for asst. yrs. 1987-88 and 198889 and s. 254E proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of income/wealth for the reason that the income/wealth had been offered voluntarily for taxation before the Settlement Commission in the other two cases which were not detected by the Department even during the assessment proceedings under s. 142 of the Act. He further submitted that the assessee himself has stated before the issue of notice under s. 148 and requested the AO to reopen the assessment and thus the question of concealment does not arise. 3. The learned Authorised Representative submitted that a search under s. 132 of the IT Act was conducted on 13th/14th June, 1989 at the office and residential premises of Gautam Trading Co. and others. Pursuant to the search, orders under s. 132(5), dt. 6th Oct., 1989, was passed in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised Representative has also submitted that, Mayabhai Family Trust has already voluntarily disclosed before the Settlement Commission forming part of total income of Rs. 27,89.413 disclosed under s. 245E of the IT Act without any detection by the Department. Thus, the disclosure of income of Rs. 5,57,882 was purely voluntary and before detection by any IT authority. The learned Authorised Representative pointed out from p. 66 of the photocopy of the order of Settlement Commission where it is mentioned as under in para 29: "Each of the applicants have also sought waiver of all penalty leviable under the Act in respect of the matter covered by the Settlement. We are satisfied that the penalties imposable under s. 271(1)(a) and 271(1)(c) for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yabhai Family Trust. Under the circumstances, he urged that penalty of concealment under IT Act and WT Act are not leviable in case of both the beneficiaries. The learned Authorised Representative has also referred the following decisions in support of his contention: 1. CIT vs. Sarda Rice Oil Mills (1979) 117 ITR 917 (Cal) 2. CIT vs. Bengal Iron Galvanising Works (1987) 61 CTR (Cal) 226: (1987) 165 ITR 249 (Cal) 3. CIT vs. Nuruddin Brothers (1989) 80 CTR (Cal) 233 : (1990) 185 ITR 481 (Cal) 4. CIT vs. Mohan Das Hassa Nand (1983) 34 CTR (Del) 361 : (1983) 141 ITR 203 (Del) 5. CIT vs. M. George Brothers (1987) 59 CTR (Ker) 298 : (1986) 160 ITR 511 (Ker) 6. CIT vs. Indian Sea Foods (1997) 137 CTR (Ker) 553 : (1996) 218 ITR 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances we do not find any justification for levying concealment penalty for remaining two beneficiaries on the same share of 20 per cent income from Mayabhai Family Trust by treating it as concealed income. In addition to above it is also pertinent to mention that if any concealment has been made it has been made by the Mayabhai Family Trust and not by the beneficiaries. Further, the beneficiaries received only 20 per cent share from the said trust and the quantum of amount of income has not been finalised as the beneficiaries were not knowing their amount of share of income from the said trust. The assessees have declared their income on the basis of their share received from Mayabhai Family Trust. Under the circumstances we not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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