2012 (11) TMI 496

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..... as a survey action in the business premises on 17.10.2007 wherein the suppression of sales was detected by the assessing Officer, based on the search conducted in the assessee's premises by the Director General of Central Excise (intelligence), Bangalore, on 07.02.2006. Therefore, consequent upon the survey, the assessee filed the revised returns on 05.12.2007 for the assessment years 2004-05 to 2006-07 declaring the additional income on account of the initial capital of Rs. 6,50,000/- and suppression of sales of Rs. 34,94,129/- for assessment year 2004-05, Rs. 66,279/-. for assessment year 2005-06 and Rs. 82,85,703/- for assessment year 2006-07. After the said revised returns were filed, the assessing officer issued a notice under Section .....

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..... the imposition of penalty was not proper. Therefore, it set aside the order of imposition of penalty. Aggrieved by the said order, the Revenue is in appeal. 7. The learned counsel for the Revenue assailing the impugned order contends that admittedly, the assessee admitted before the Central Excise Authorities the suppression of turn-over and the suppression of payment of excise duty. After the same was detected, he did not file the income-tax returns. He waited till there was a survey of his premises by the Income Tax Department. It is only thereafter he has filed the returns, ofcourse, before the issue of notice under Section 148 of the Act. These facts clearly demonstrates that the revised returns filed by the assessee is not voluntary .....

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..... ackground of the aforesaid law, we have to look into the facts of the case and then to apply the said law. Therefore, merely because there was a survey by the Income Tax Department and it is only after a survey, a revised return is filed, is not a ground to hold that there was suppression of income. In the instant case, first there was a search by the Excise Department. It is in the course of that search, the assessee admitted the suppression of turnover. Thereafter, he paid tax and interest to the Excise Department. Then, he went before the Settlement Commissioner seeking for waiver of penalty and prosecution. It is only after the order passed by the Settlement Commissioner and after the survey by the Income Tax Department of his premises, .....

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