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TMI Blog2002 (9) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... htly levied the penalty. He has contended that the concealment has to be considered on the basis of revised return containing sum surrendered by assessee. He has contended that the surrender in revised return will not nullify the concealment resulting from original return. He has contended that the onus is on the assessee to explain that there was no fraud or wilful neglect on his part to furnish the correct return of income. He has contended that the assessee did not give any explanation before AO before penalty proceedings. 4. As against the above, the learned authorised representative of assessee has contended that the expenditure of Rs. 20,000 comprises of two components (i) Rs. 13,000 on mines, and (ii) Rs. 7,000 on house repair. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it may be observed that the learned Departmental Representative of Revenue objected to this plea being raised by the learned authorised representative of assessee for the reason that no such objection can be taken by assessee in this appeal of Revenue. 6. I have considered the rival contentions as also the relevant material on record, as also the cited decision. 7. In (1992) 43 TTJ 503 (JP) it has been contended that the case was of allegedly receiving on money on sale of certain brands of cigarettes. The assessee had surrendered Rs. 40,000 through a revised return, covering partly the impugned addition of Rs. 53,119 as a result of which the actual addition worked out to Rs. 13,119 only. It was noticed that addition in similar circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f survey would not per se lead to concealment of income. 9. In ITO vs. Moti Ram Subhash Chand Jain (1988) 27 ITD 44 (Del), Tribunal Delhi has held that penalty for concealment cannot be imposed in respect of cash credit added to assessee s income due to want of evidence produced by assessee to the satisfaction of ITO. It has also been held therein that no penalty can be levied in respect of addition made to assessee s income on the basis of statement when these amounts were mentioned in the returns filed by assessee and no deletion (sic) of concealment was made by ITO in respect of them after filing of return. It was also held that this was not a case where return was raised on the detection of concealment or after the assessee felt drive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come concealed by assessee, and in turn, the assessee having not furnished particulars in respect thereof. As such. considering all the facts and circumstances of the case, as also the legal position, I find the levy of penalty for concealment under s. 271(1)(c) in respect of the addition amount of Rs. 21,600 based on application of higher g.p. rate to be not tenable in law, and so the same needs be cancelled. I order accordingly. 13. As regards the balance concealed amount of Rs. 20,000, I find no force in the contention of the learned authorised representative of assessee regarding the assessee s fault having been nullified due to the said amount of Rs. 20,000 having been included in the assessee s income in the revised return, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the learned Departmental Representative of Revenue submitted that he does not have the complete record of assessment before him, so he was not in a position, at the moment, to submit the correct/actual position regarding the obtaining of the Dy. CIT s prior approval by AO for the levy of penalty, I direct the AO to verify the fact of Dy. CIT s prior approval having been obtained by AO, and if he finds the same to have been obtained, the penalty levied by AO under s. 271(1)(c) in respect of the concealed amount of Rs. 20,000 shall stand, or else, in case of the said prior approval of Dy. CIT having not been obtained by AO, the levy of penalty under s. 271(1)(c) in respect of the concealed amount of Rs. 20,000 shall stand cancelled. I or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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