9911796707
TMI Blog2007 (4) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... merely for the asst. yr. 1996-97, it was not filed till the date of search which was conducted on 2nd Jan., 1997 and admittedly was filed after the search. It was strongly contended that the assessee had already paid the tax @ 60 per cent and also the advance tax on the impugned amount, therefore, the penalty should not have been imposed. Reliance was placed upon the decision in Dy. CIT v. Suresh Kumar [2005] 95 TTJ (Kol) 926 : [2005] 97 ITD 527 (Kol), Enfield Industries Ltd. v. Dy. CIT [2007] 106 TTJ (Kol) 89 and Nemichand v. Asstt. CIT (Inv.) [2005] 93 TTJ (Bang) 564. On the other hand the contention of the Revenue is that penalty was rightly imposed as once the concealment is deduced, penalty is automatic. Plea was raised that the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the learned first appellate authority who vide his order dt. 12th Nov., 1999 deleted all these additions except the addition of Rs. 3,76,640 made on account of undisclosed income. The relevant para 5.1 of the order of learned CIT(A) is reproduced herewith: "I have carefully considered the contention of the appellant and there is no force in the same. The return of income for the asst. yr. 1996-97 was due to be filed on 30th Oct., 1996. The same had not been filed and the search and seizure operation under section 132(1) took place on 2nd Jan., 1997 whereas the return was filed on 17th Jan., 1997 i.e., after the search and seizure operation. The undisclosed income in the block period is to be calculated as per the provisions of section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er filed on 17th Jan., 1997, after the search operation, which was conducted on 2nd Jan., 1997. This fact was also not disputed that the assessee paid the advance tax before the search. Admittedly, the assessee also paid the tax @ 60 per cent. The only contention of the Revenue is that assessee filed the return only after the search that too after the due date. We are also supposed to analyse whether sections 158BFA(2) and 271(1)(c) are on the same footing. If the wording of sub-clause (2) to section 158BFA is analysed, it clearly says that the AO or the CIT (A) in the course of any proceedings under this chapter may direct that a person shall pay by way of penalty a sum….. But in section 271(1)(c) the world "shall" has been used meaning th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emains that the assessee was still having time to file the return as provided in sub-clause (4) to section 139. As we have discussed earlier that for imposing of penalty under section 158BFA(4), there is a discretion with the AO/CIT(A) but at the same time that discretion has to be used in a judicious way and that too in the case of a penalty specially when the assessee has already paid the advance tax on the amount. At the same time, being a search case, since the assessee had paid the tax @ 60 per cent, we are of view that the assessee should not be permitted to be further crushed by imposing a penalty under the facts of the present appeal. This view is further fortified by the fact that there is no concealment of income since the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Hon'ble apex Court in the case of K.P. Madhusudhanan v. CIT. We are of the view that this case of the Hon'ble apex Court pertains to deemed concealment and that too for penalty under section 271(1)(c) of the Act. Reliance was also placed upon the decision of the Hon'ble jurisdictional High Court in the case of CIT v. Mangha Ram Om Parkash wherein penalty was imposed for the concealment of income and specially the returned income was less than 80 per cent of the assessed income. There was no proper explanation regarding cash credit. The imposition was held to be justified. There is a specific finding by the Hon'ble High Court that the assessee failed to discharge the onus which laid upon it to explain cash credit in the name of L. But ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
