9911796707
TMI Blog2007 (6) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... onducted and during this survey assessee surrendered total amount of Rs. 1,09,859 (Rs. 93,126 on account of excess stock and Rs. 16,733 on account of excess cash). The assessee also claimed long-term capital loss of Rs. 89,210 on account of sale of residential house situated at Bhopalpura, Udaipur. The surrendered amount was not shown by the assessee in his return of income. The AO also queried about the value of the house sold during the year. Therefore, the assessee revised his original return of income by incorporating an amount of Rs. 1,09,859 and also declared capital gains of Rs. 1,32,967 as per the provisions of s. 50C of the Act. Assessment order was completed on 25th Jan., 2006 at total income of Rs. 4,12,120 including capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... query made by the AO and cannot be taken as voluntary disclosure by way of a revised return, which was non est in the eyes of the law having not been filed within permitted time. According to learned Departmental Representative the assessee has furnished inaccurate particulars of income and thus a penalty under s. 271(1)(c) is exigible. I have cogitated the entire material available on the record in the light of the rival submissions. The well settled principle of law is that the parameters for levy of penalty and for making quantum additions operate in separate and distinct spheres. It is also a trite law that a penalty is not exigible only on account of estimated additions. Undoubtedly, the assessee did not file appeal against impugned q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it sufficient and plausible reasons to extenuate the default. It depends on the facts and the circumstances of a given case whether a penalty can be levied or not. In the given case the learned CIT(A) has simply mentioned that the assessee has revised the return after constant legal pursuit by way of issuing show-cause notices, the penalty levied by AO is to be confirmed. But, I beg to differ from the above finding because learned CIT(A) has not at all considered the written submissions of the assessee even after incorporating the same, verbatim, in the order. 6. The assessee is doing photography service and was oblivious of surrender made during survey. Immediately after the query was made in this regard, he filed a revised return and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001) 170 CTR (SC) 182 : (2001) 251 ITR 9 (SC) wherein it has been held that concealment cannot be inferred, ipso facto, from surrender or addition but it has to be proved by the Department. For non-filing of appeal against the surrendered income reliance has been placed on the decision of Narender Kumar vs. ITO (2005) 94 TTJ (Jd) 156. For making a wrong claim which is subsequently withdrawn, reliance has been placed on the decision of this Bench given in the case of Devi Dass Sukhani vs. ITO (2006) 101 TTJ (Jd) 551. Insofar as estimated addition is concerned, in my view, the law is settled that no penalty under s. 271(1)(c) can be levied. Sec. 50C was introduced w.e.f. 1st April, 2003 and was a new section which was applicable from the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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