9911796707
TMI Blog1975 (12) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... the net income from profession by Rs. 12,000 on account of additional expenses claimed. A second revised return was later filed by the assessee in which he declared his net income from profession at Rs. 1,96,403 against the net income of Rs. 47,986 declared in the first revised return of income. The assessee thus declared in additional professional income of Rs. 1,48,507. The income as shown by the assessee in his second revised return was accepted by the ITO and he assessed the assessee on the net income or Rs. 2,84,115 after allowing the deduction of Rs. 530 under s. 80-k of the Act. The ITO in his assessment order observed that it appeared that it appeared that the second revised return was field to account for the source of payment of Income-tax of Rs. 1,48,507 in cash during the previous year relevant to the asst. yr. 1968-69. The ITO on the view that the non inclusion of the said sum of Rs. 1,48,507 in the original and as also in the first revised return amounted to concealment of the assessee s income to that extent. initiated penalty action under s. 271(1)(c) against the assessee. 2. The assessee in his reply to the show cause notice served on him by the IAC stated as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 271(4A) was pending before the CIT had no effect whatsoever on the assessee right to file appeal against the order of the IAC and to get a decision therein. He also submitted that the application of the assessee under s. 271(4A) itself was misconceived. 6. We find no merit in the above submission of the Departmental Representative. Sec. 271(4B) states that an order under sub-s. (4A) of s. 271 shall be final and shall not be called in question before any Court of law or any other authority. It is obvious that no order under s. 271(4B) is being called in question in the appeal before the Tribunal. In fact no order under s. 271(4A) has yet been passed. We fail to see as to how the provision of s. 271(4B) was any bar to the maintainability of the present appeal. The decision of the Madras High court in the case of K.C. Vedadri has no bearing on the point raised by the Departmental Representative. We accordingly reject this contention of the Departmental Representative. 7. Now coming to the merits of the appeal, Shri Sharma, the assessee s learned counsel submitted that the assessee had paid a sum of Rs. 1,48,507 in cash in the previous year relevant to the asst. yr. 1968-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tative submitted that the second revised return could not be said to have been field by the assessee voluntarily. He referred to certain facts and circumstances in support of this contention. The Departmental Representative submitted that the ITO in his letter dt. 25th April, 1969 had made enquires from the assessee wherein he had asked to furnish the detail among others of the amount of taxes paid by him for the relevant previous year. Shri Bhatt submitted that that showed that the ITO would have detected the omission on the part of the assessee is include the sum of Rs. 1,48,507 in question even if the assessee had not included the same in the revised return was later submitted by the assessee on 4th Dec., 1969. The Departmental Representative next pointed out that similar mistake was detected by the ITO in the case of the assessee for the asst. yrs. 1964-65 1965-66 and penalties of Rs. 4,500 in each year where levied on the assessee under s. 271(1)(c). He also pointed out that in the asst. yr. 1963-64 the assessment of the assessee had been re-opened for a similar reason and was still pending. The Departmental Representative contended that these facts i.e. that the conduct of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee and that the assessee had concealed the particulars of its income or had furnished inaccurate particulars of his income as contemplated by s. 271(1)(c) of the Act. Before we discuss the arguments advanced on the two sides, we may mention here that the IAC did not invoke the explanation to s. 271(1)(c) of the Act for levying penalty on the assessee. It was not contended on behalf of the revenue before us that the explanation was applicable to the facts of the present case. There is also some amount of controversy on the point as to whether the explanation to s. 271(1)(c) can be invoked when the ITO does not refer to that while recording his satisfaction for initiating penalty action under s. 271(1)(c). Some benches of the Tribunal have taken the view that in such a case the explanation cannot be validly invoked by the IAC. However, in view of the fact that the explanation was not invoked by the IAC and it was not even contended before us that the explanation was application to the facts of the present case, it would not be just and proper for us to invoke the explanation even if that be otherwise applicable to the present case and we would confine ourselves to the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income in question is by itself no circumstances against the assessee, as that may well be said about any case. It is almost a settled law that if an assessee files a revised return under s. 139(5) including therein particulars of his income which were not included in his original return before any detection of that is made by the return authorities, that would be strong circumstances to show that the revised return so furnished by that assessee was a voluntary return and in such a case the non-inclusion of the particulars of income in the return filed originally shall not amount to concealment. The decision of the Madras High Court in the case of CIT vs. Ramdas Pharmacy, 77 ITR 276 (Mad) and that of the Gujarat High Court in the case of D.V. Patel co. vs. CIT Gujarat-III, Cited by the assessee s learned counsel are the two authorities in support of the view that if an assessee voluntarily files a revised return wherein he includes the particulars of his income which were left out to be included in the return filed by him originally, that is a circumstances of significance in considering if there was any concealment on the part of the assessee while returning his income in the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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