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TMI Blog2014 (9) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... ee as to the fixed deposit prior to 31.3.2001 and the renewal of the fixed deposit with interest - He claimed it primarily as family income out of partition and agricultural income. The explanation made on the basis of Explanation B to Section 271(1)(c) of the Income Tax Act to some extent has been satisfied by the assessee and the legal heirs of the assessee - The details given by the legal representatives of the assessee along with the annexures have to be considered by the Authority before ever it proceeds to invoke Section 271(1)(c) - If the Authority still finds that the Explanation is not justified or reasonable, they are entitled to take a different view on the penalty proceedings - But when the assessee has given some reasonable explanation, it is incumbent on the part of the Authority to consider the same on its own merits before proceeding further - This exercise has not been done and the matter is to be remitted back to the AO for consideration of the explanation – Decided in favour of assessee. - Tax Case (A) Nos.134 to 139 of 2014 - - - Dated:- 8-9-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. R. Janakiraman For the Respondent : Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fering from lung cancer. The Assessing Officer issued notices to the assessee under Section 148 of the Income Tax Act for the above-said assessment years. In response to the said notice, the assessee filed revised return of income, the details of which are as follows: Assessment Year Return Filed Income Declared Revised Return Income returned 2002-03 29.3.03 129264 17.3.09 414164 2003-04 30.3.04 127558 26.2.09 1304655 2004-05 29.03.05 66520 26.2.09 1406951 2005-06 31.3.06 94712 26.02.09 1296490 2006-07 23.3.07 148410 26.2.09 1197092 2007-08 28.3.08 18637 26.2.09 823979 2008-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the shifting of the burden again where the explanation offered by the appellant is found to be bonafide . 5.2. Considering the facts and circumstances of the case, the appellant would not have offered the income but for the detection of the same by the department. The appellants' explanation that, he was of the opinion that, as there was no TDS by the bank, he was of the opinion that filing of returns for the said fixed deposits and interest thereon, was not necessary, is not acceptable. The very fact that the appellant is aware of the TDS provisions itself would mean that the appellant was very much aware of the provisions of the Income tax act. The appellant has also not provided any evidence to the agricultural income of the family prior to the partition in 1997-97. The appellant explanation is only an afterthought and not bonafide. 6. Aggrieved by the order of the Commissioner of Income Tax (Appeals), the assessee filed appeals before the Income Tax Appellate Tribunal. The Tribunal rejected the contentions of the assessee and dismissed the appeals holding as follows: 15. We find that the assessee had produced absolutely no material before us or before any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the case falls under Section 271(1)(c) of the Income Tax Act. He further submits that the Assessing Officer without even considering the representation of the assessee dated 13.01.2009, levied penalty under Section 271(1)(c) of the Income Tax Act, which was confirmed by the Commissioner of Income Tax (Appeals) as well as the Tribunal. Hence, the order of the Tribunal confirming the levy of penalty has to be set aside. 9. Per contra, learned Standing Counsel appearing for the respondent placing reliance on the decision of the Supreme Court reported in (2013) 38 Taxmann.com 448 (SC) (MAK Data (P) Ltd. V. Commissioner of Income-tax-II) would submit that the assessee should have given cogent and reliable evidence to establish that there is no concealment of income. In the instant case, the assessee has not proved with established evidence with regard to the investments made. Hence, the Tribunal is right in confirming the levy of penalty. 10. Heard learned counsel appearing for the appellant and the learned standing counsel appearing for the Revenue and perused the materials placed before this Court. 11. The core issue involved in the above appeals is whether penalty is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent decision of the Hon'ble Supreme Court in Civil Appeal No.9772 of 2013, dated 30.10.2013 (Mak Data P. Ltd., vs. Commissioner of Income Tax-II), the Hon'ble Supreme Court while considering the Explanation to Section 271(1), held that the question would be whether the assessee had offered an explanation for concealment of particulars of income or furnishing inaccurate particulars of income and the Explanation to Section 271(1) raises a presumption of concealment, when a difference is noticed by the Assessing Officer between the reported and assessed income. The burden is then on the assessee to show otherwise, by cogent and reliable evidence and when the initial onus placed by the explanation, has been discharged by the assessee, the onus shifts on the Revenue to show that the amount in question constituted their income and not otherwise. Factually, we find that the onus cast upon the assessee has been discharged by giving a cogent and reliable explanation. Therefore, if the department did not agreed with the explanation, then the onus was on the department to prove that there was concealment of particulars of income or furnishing inaccurate particulars of income. In the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 CTR 321. 15. It appears that some details were furnished in the form of explanation by the legal representatives of the deceased assessee, but we find from the proceedings by the Assessing Officer as well as the first Appellate Authority and the Tribunal that except adverting to the letter of the legal heirs of N.R.Palanivel, there is no discussion whatsoever as to the nature of explanation offered by the assessee and his legal heirs. All the Authorities have cursorily dismissed the explanation. It is not as if the explanation was submitted without details. It appears from record that some records were filed along with letter dated 13.1.2009. In such view of the matter, the assessee in this case had given some explanation which would fall within the parameters of Explanation B to Section 271(1)(c) of the Income Tax Act. If the Authorities have considered these issues in detail, probably, there would have been no case for the assessee. We find that in the instant case, reasonable explanation was offered by the assessee as to the fixed deposit prior to 31.3.2001 and the renewal of the fixed deposit with interest. He claimed it primarily as family income out of partition and agri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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