TMI Blog2018 (12) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... im. The fact regarding the sale of the property in variance with the consideration mentioned in the agreement is also evidence of intention to evade payment of tax. The penalty originally levied was 200%, which was reduced to 100% by the Appellate Tribunal. We find no reason, whatsoever, to interfere with that finding of the Appellate Tribunal and the questions of law are answered in favour of the Revenue and against the assessee. - ITA. No. 224 of 2013 - - - Dated:- 6-9-2018 - MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ. For The Appellant : ADVS. SRI. M. GOPIKRISHNAN NAMBIAR, SMT. PREETHA S. NAIR, SRI. K. JOHN MATHAI, SRI. P. BENNY THOMAS AND SRI. P. GOPINATH For The Respondent : ADVS. SRI. P. K. RAVINDRANATHA MENON (SR. ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty, which was directed to be paid at 200% of the tax on income concealed, vide Annexure B order, was restricted to 100% by the Tribunal and the appeals were thus allowed in part. 3. The facts in brief are that a search and seizure was carried out at the residence and office premises of the assessee on 06.08.2003 and concealment of income for the three years was detected. In response to a notice under Section 153A, in ITA No.222/2013 the assessee filed a return declaring an income of ₹ 14,50,200/- and an agricultural income of ₹ 4,14,000/- for the assessment year 2001-02. The assessment was competed on 07.03.2006 by adding ₹ 5,75,035/- as the undisclosed business income and ₹ 90,000/- by bringing the clubbing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuant to the notice under Section 153A of the Act, the appellant has suo motu declared additional amount as income and offered the same for assessment. The additional income was not on the basis of any materials seized by the Department. The Tribunal ought to have found that the return filed pursuant to the notice should be treated as return filed under Section 139. There was no concealment or furnishing of inaccurate particulars by the appellant in the return so as to attract the penal provision under Section 271(1)(c) of the Act and hence the appellant seeks interference of this Court. 7. The learned Senior Standing Counsel, Government of India (Taxes) submits that it is consequent to a search and seizure under Section 132 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate particulars . The court went on to hold therein that in order to attract the penalty under section 271(1)(c), mens rea was necessary, as according to the court, the word inaccurate signified a deliberate act or omission on behalf of the assessee. It went on to hold that clause (iii) of section 271(1)(c) provided for a discretionary jurisdiction upon the assessing authority, inasmuch as the amount of penalty could not be less than the amount of tax sought to be evaded by reason of such concealment of particulars of income, but it may not exceed three times thereof. It was pointed out that the term inaccurate particulars was not defined anywhere in the Act and, therefore, it was held that furnishing of an assessment of the value of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income tax return. Under such circumstances, we are of the opinion that the returns filed subsequent to the search would not absolve the penal provisions under Section 271(1)(c) of the Act. 10. In Commissioner of Income Tax v. N.Jayaprakash, [2018] 400 ITR 99 (Ker.), a Division Bench of this Court has held thus:- If the concealment or furnishing of inaccurate particulars of income is an act committed by the assessee at the time of filing the return, the liability of the assessee or the culpability of the assessee is his conduct at the time when he filed the return. 11. In view of the decisions cited above, we are of the opinion that failure on the part of the assessee to file the returns voluntarily, as statutorily presc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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