2011 (1) TMI 165 - AT - Income Tax

Penalty - Survey - Undisclosed bank account - Department contended that the assessee concealed the bank accounts, only because of survey action, the bank accounts came to light and the assessee offered additional income only because he was caught by the department - Held that The question of concealment of income or furnishing of inaccurate particulars of income for the purpose of section 271(1)(c) of the Act is to be determined with reference to the original return - Even if the income is surrendered in the revised return, the assessee still has to explain why the income was not shown and why inaccurate particulars of income furnished in the original return Blameworthiness attached to the assessee with reference to the original return cannot be avoided by filing revised return after concealment was detected by the revenue authorities. - Where the concealment of income made in the original return or where the surrender of income made was not voluntarily but was as a result of detection by the assessing officer, filing of revised return is of no consequence - There is a burden cast upon the assessee to prove that the deposits indeed is not the income of the assessee and this burden is not discharged in this case - Accordingly, if the assessee satisfactorily explain the nature and source of deposits, the penalty cannot be levied - Matter remanded back - Appeals are allowed for statistical purpose

Summary

Issues Involved:
1. Levy of penalty under Section 271(1)(c) of the Income Tax Act for assessment years 2004-05, 2005-06, and 2006-07.
2. Concealment of income and furnishing of inaccurate particulars of income.
3. Validity of revised returns filed by the assessee after detection by the department.
4. Explanation and justification of the source of deposits in undisclosed bank accounts.

Issue-wise Detailed Analysis:

1. Levy of Penalty under Section 271(1)(c):
The appeals pertain to the levy of penalty under Section 271(1)(c) of the Income Tax Act for the assessment years 2004-05, 2005-06, and 2006-07. The penalties were imposed by the assessing officer for concealing income with regard to amounts lying in the bank accounts of the assessee. The penalties levied were Rs. 5,94,000 for 2004-05, Rs. 3,02,940 for 2005-06, and Rs. 7,91,010 for 2006-07. The CIT(A) confirmed the order of the assessing officer, leading the assessee to appeal before the tribunal.

2. Concealment of Income and Furnishing of Inaccurate Particulars:
The assessee originally filed returns declaring certain incomes for the respective assessment years. However, a survey conducted under Section 133A of the Act revealed an undisclosed bank account with substantial cash deposits that had escaped assessment. The assessee's revised returns filed after the survey included additional income to cover the peak cash deposits and differences in property construction valuation. The tribunal noted that the concealment of income or furnishing of inaccurate particulars is to be determined with reference to the original return. The revised returns filed after detection by the department do not absolve the assessee from the penalty for concealment.

3. Validity of Revised Returns:
The tribunal emphasized that the revised returns filed by the assessee after the detection of undisclosed bank accounts by the department are of no consequence for avoiding the penalty. The surrender of income in the revised returns was not voluntary but a result of detection by the assessing officer. The tribunal stated that blameworthiness attached to the assessee with reference to the original return cannot be avoided by filing revised returns after the concealment was detected by the revenue authorities.

4. Explanation and Justification of Source of Deposits:
The assessee claimed that the cash deposits in the bank account were advances from prospective customers in the normal course of its real estate business. However, the tribunal found the explanation vague and unsupported by evidence. The assessee failed to produce any customers or documents to substantiate that the money deposited belonged to other persons. The tribunal held that the burden of proof lies on the assessee to explain the source of deposits, which was not discharged in this case.

Conclusion:
The tribunal concluded that the revised returns filed by the assessee were not voluntary and were a result of the department's detection of undisclosed bank accounts. The explanation provided by the assessee was found to be vague and unsupported by evidence. However, in the interest of justice, the tribunal decided to give the assessee one more opportunity to explain the source of deposits in the bank accounts. If the assessee satisfactorily explains the nature and source of the deposits, the penalty cannot be levied. Consequently, the appeals filed by the assessee were allowed for statistical purposes.