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TMI Blog2014 (1) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... anjay Awasthi, learned counsel appearing for the appellant and Sri Ashish Bansal, learned counsel appearing for the assessee. This appeal under Section 260-A of the Income Tax Appeal, 1961 has been filed by the Department against the judgment and order dated 12.09.2002 of the Income Tax Appellate Tribunal. In the appeal following two questions of law have been framed for consideration:- "1. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal is legally justified in holding the A.O., should prove mensrea of the assessee that it concealed the income to evade tax. 2. Whether on the facts and in the circumstances of the case, the Hon'ble ITAT is legally correct to uphold the order of the CIT (A), Agra canceling the penalty under Section 271 (1)(c) imposed at Rs. 2,10,000/- without appreciating the fact that the revised return was filed only of the detection of bogus liabilities. A return was filed by the assessee in the year 1991-92 on 31.10.1991. In the return, the assessee had shown various outstanding amount against different parties. The Assessing Officer issued notices to the assessee to explain and assessee was granted opportunity by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax, Agra (2013) 30 taxmann.com 18 (All). Sri Ashish Bansal, learned counsel appearing for the assessee refuting the submission has contended that while submitting the return, the assessee himself has deleted the aforesaid outstanding entries and since on account of riots as noticed by the Commissioner of Income Tax (Appeals)-II, the assessees were not traceable. He submitted the fact that out of 20 entries shown by the assessee as the outstanding liabilities 15 confirmation could be obtained and it was only 5 traders out of which four belonging to one particular community of Muslim, the confirmation could not be obtained. The present was not a case of disclosure of any inaccurate particulars or making any false statement. He submitted that the explanation given by the assessee for deleting the said entries in revised return was based upon correct facts which has rightly been believed by the Commissioner of Income Tax (Appeals)-II as well as the Tribunal. He submitted that no question of law raised in the appeal and the appeal deserves to be dismissed. The Tribunal by considering the submission has noticed the relevant Paragraph No. 2.5 which to the following effect:- 2.5- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrender the amount to end the litigation. This could have been verified by the AO by making local enquires and on going through the books of account of subsequent assessment years in which the amount was paid to the dealers. Similarly, in the case of Mohd. Ibrahim Azimulla Vs. CIT, 131 ITR 680, the jurisdictional High Court has held that the acceptance of revised return of income u/s 139(5) depends on the fulfillment of certain essentials. It is only a disclosure in the revised return in the circumstances mentioned in the section which will ensure to the benefit of the assessee, as a disclosure may be voluntary yet dishonest. If the revised return showing correct higher income is to cover up what was in the knowledge of the assessee or made in bad faith then it will not come within the ambit of Sec. 139(5), nor can the assessee claim any benefit on it. But in the instant case, disclosure was voluntary as the ITO did not mention any reason to hold that the disclosure was not voluntary. We further noted that the AO has erred in invoking the provisions of Sec. 271(1) (c) by mentioning that since the difference in the return and assessed income is more than 20%, the onus lies upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has come with the explanation for filing a revised return by deleting outstanding entries regarding aforesaid five traders. The reason was noticed by the Tribunal that the dealers being belonging to particular community had left the Town during riots due to Ram Janma Bhumi and Babari Masjid dispute or otherwise refused to give confirmation letter. The mere fact that the assessee could not obtain confirmation letter of the said outstanding entries from only five traders out of 15 in no manner can be said that in his return filed on 31.10.1991, he mentioned inaccurate particulars. In the revised return those entries were deleted by the assessee on account of he having not been able to filed requisite confirmation letters or proof. In the said circumstances, it cannot be said that he filed any inaccurate particulars on which penalty could have been imposed under Section 271 (1) (c). The judgment relied by learned counsel for the appellant in Bajrang Glass Emporium Vs. Commissioner of Income Tax, Agra (supra) where it was held that in case of surrender of income by assessee without offering plausible explanation whether he can be absolve from the charge of penalty for concealm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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