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2005 (8) TMI 308 - ITAT HYDERABAD-BPenalty levied u/s 271(1)(c) - For Concealment Of Income - Burden Of Proof - Assessment - Revised Returns - HELD THAT:- Admittedly, neither the assessment order nor the penalty order contained details to prove that the differential income declared by the assessee in the revised returns, was detected by the Department before the assessee has come forward to furnish the revised returns. There was no doubt some delay on the part of the assessee to file the returns of income, particularly in respect of assessment years 1994-95 to 1996-97. However, the case of the Assessing Officer rested upon the fact that in the returns filed by the assessee, the income as originally admitted during the course of survey proceedings, was not declared, and thus it amounted to furnishing inaccurate particulars, and thereby the assessee concealed income. Thus, the issue is confined to the difference between the originally returned income and the income declared in the revised returns, though penalty was levied with reference to the tax payable on the assessed income, as could be seen from the assessment order. The assessee maintained some rough books supported by some vouchers, etc. Account copies from the companies from which the assessee has procured foundation seeds have been obtained and verified by the Assessing Officer. Gross receipts admitted by the assessee, supported by the vouchers, were also verified by the Assessing Officer. There is not even a whisper doubting the correctness of the particulars contained therein. Whether the explanation offered by the assessee is bona fide or not - There is nothing on record to suggest that for the assessment year 1997-98, the assessee has earned taxable income of Rs. 2 lakhs, as assessed on the basis of revised return, as against income of Rs. 67,230 declared by the assessee in the original return. Similarly, for the other years also there is nothing on record to suggest that the income finally assessed was detected by the Department as the correct income of the assessee. Except stating that the details furnished by the assessee were cross-verified, there is no indication to the effect that the assessee has either inflated the expenditure or concealed the gross income. No doubt, when the assessee has revised the returns and declared the income in conformity with the statement given during the course of survey proceedings, there was no occasion for the Assessing Officer to point out that the Department has detected certain facts which would go to show that the assessee has not correctly declared income. But at least in penalty proceedings, where the assessee had given an explanation, the duty is cast upon the Revenue to highlight that the revised returns were filed not merely to buy peace with the Department but on account of detection by the Revenue authorities. Some facts and figures and estimated working is necessary to show that the material on records that the finally assessed income is the actual/probable income earned by the assessee. In the instant case, such an exercise having not been done by the Revenue authorities, in conformity with the decision of the Apex Court in the case of Suresh Chandra Mittal [1999 (7) TMI 34 - MADHYA PRADESH HIGH COURT], I am of the view that the Assessing Officer has not made out a case for the levy of penalty. I, therefore, cancel the penalties levied by the Assessing Officer, and allow the appeals of the assessee. In the result, appeals filed by the assessee are allowed.
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