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TMI Blog2002 (9) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... found that the assessee had collected fee of Rs. 15,48,800 during the academic year 1994-95 relevant for assessment year 1995-96. Besides, an amount of Rs. 40,000 was due to be collected. But in the Return of income it had declared receipt of fees of Rs. 11,10,692. Thus, unaccounted receipts amounted to Rs. 4,38,108. On 31-10-1995 the assessee had filed a revised return admitting additional income of Rs. 4,59,250. In the assessment orders under section 143(3) dated 15-2-1996 the income declared in the revised return was accepted. Simultaneously the Assessing Officer also initiated penalty proceeding under section 271(1)(c). After considering the submissions made by the assessee during the penalty proceedings the Assessing Officer imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronted. In the statement on oath he has admitted that the admission fees collected is neither recorded in any register nor any receipt is issued for such collection. It was also admitted that the additional amount collected on account of admission fees is mostly utilised on personal expenses. In view of these facts the Assessing Officer arrived at the conclusion that the assessee had concealed the particulars of income with mala fide intention to evade taxes. The Assessing Officer also did not believe the assessee's contention that the omission was due to mistake of the Accountant and lack of knowledge of accounting principles since the assessee was an old assessee and was assisted by qualified ITP/Auditors and the contention was dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 271(1)(c) itself was illegal inasmuch as the Assessing Officer has failed to record his satisfaction about initiation of penalty. In support of such argument he relied on the judgment of the Hon'ble Delhi High Court in the case of CIT v. Ram Commercial Enterprises Ltd. [2000] 246 ITR 568. As regards merits, it was argued by him that the differences worked out by the department was on estimate only inasmuch as same was based on the fees structure. It was further pointed out that since the payment received on account of admission fee was one time payment, the assessee had bona fide belief that it was in the nature of capital receipt and hence not taxable. It was further submitted that since the assessee had filed declaration on the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Assessing Officer had in fact formed his satisfaction that the assessee had committed an offence which attracts the penalty proceedings under section 271(1)(c). Therefore, the action of the Assessing Officer of initiating penalty proceedings cannot be faulted and dismissed as illegal. The case law relied upon by the assessee Ram Commercial Enterprises Ltd.'s case is distinguishable on facts inasmuch as in that case the Assessing Officer in his assessment order had merely observed/directed penalty proceedings under section 271(1)(c) to be initiated separately against the assessee. Where as in the present case the Assessing Officer has in fact formed the satisfaction and initiated penalty proceedings in course of assessment proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o which the assessee had also no dispute. It had no alternative but to declare the same as income. We also find no merits in the contention of the AR that the additional income worked out was only on estimate basis as correct amount of concealed income was arrived at from fee structure statements. We are also of the view that the Assessing Officer has rightly rejected the assessee's claim that the assessee omission was on account of the mistake committed by the Accountant and ignorance of accounting principles. We find that the assessee is blowing both hot and cold, at the same time. On the one hand it argues that the omission was committed due to mistake of Accountant and ignorance of accounting principles, but on the other hand it says th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders of ITAT Indore Bench in the case of Asstt. CIT v. Oriental [1995] 52 ITD 631 and Nagpur Bench in the case of M.P. Agricultural Corpn. v. IAC [1993] 46 TTJ 399 relied on by the learned AR of the assessee are also distinguishable on facts. In the case of Oriental the assess had offer income in assessment years 1982-83 and 1983-84. The Assessing Officer assessed them in these years on proportionate basis as he believed that such income is to be considered in assessment year 1985-86. He also imposed penalty under section 271(1)(c) in assessment years 1982-83 and 1983-84 on the incomes assessed on protective basis. The ITAT held that penalty could not be levied on protective assessment as there could not be any protective penalty. In the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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