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TMI Blog2015 (4) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... th the issue of non-disclosure of the amount surrendered under section 132(4) of the Act. The assessee filed a revised return on December 26, 2008 including therein the impugned amount of Rs. 45 lakhs and also submitted that amounts surrendered could not be disclosed in the return of income on account of unintentional mistake as the necessary tax along with interest on the disclosed income has been paid in the due course before filing the return of income. The Assessing Officer concluded that the assessee disclosed the surrendered amount only after being confronted, therefore, immunity from concealment would not be given. Apart from this issue, the Assessing Officer imposed penalty in respect of addition made on account of sale of plot of land for Rs. 77,600 whereas the Assessing Officer has estimated the sale price at Rs. 2,16,350. The addition made by the Assessing Officer was confirmed by the learned Commissioner of Income-tax (Central) in the order passed under section 264 of the Income-tax Act. The Assessing Officer rejected the assessee's argument that he has sold the impugned plot at a particular price on the ground that the same was not substantiated and there was huge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 lakhs. The authorised representative is basically claiming that the mistake of not disclosing the surrendered amount in the return of income was intentional and not intended to retract the disclosure made. It has further been estab lished that the copy of capital account and cash flow statement was filed with the Assessing Officer on December 16, 2008 though the assessee was confronted on the issue of non disclosure by the Assess ing Officer on December 24, 2008. The analysis of the above detailed facts and sequence of events shows that there has been a bona fide omission on the part of the assessee/the assessee's counsel and the same has been rectified by filing a revised return which is considered valid under section 139(5). It is important to appreciate here the state of mind of the assessee at the time of filing of the original return which is clearly intended to own the disclosure made during the course of search operation as necessary taxes had been paid and no retraction had been made. Further necessary entries in the books of account evidencing the fact of disclosure of Rs. 45 lakhs had also been made and submitted during the course of assessment proceedings even bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is only the registered value of any property which has to be considered and the onus of establishing that any amount was received over and above the amount declared is always on the Revenue. It was further submitted that addition is merely on the estimate basis so it is not a conclusive evidence to prove that the assessee has concealed the particulars of income or filed inaccurate particulars of income. No evidence was found during the course of search for levy of the penalty. It was, therefore, submitted that levy of penalty may also be cancelled. The learned Commissioner of Income-tax (Appeals) on consideration of the submissions of the assessee, cancelled the penalty under this head also. The findings of the learned Commissioner of Income-tax (Appeals) in paragraph 8 of the appellate order are reproduced below : "8. I have considered the facts of the case and the basis of penalty imposed by the Assessing Officer on the issue. It is a matter of fact that the addition made is purely on estimate basis and nothing had been brought on record by the Assessing Officer which could be termed as evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011] 335 ITR 23 (P&H). (ii) The decision of the hon'ble Punjab and Haryana High Court in the case of CIT v. Bansal Abhushan Bhandar, Karnal (I.T.R. Nos. 272 to 276 of 1995-date of decision November 6, 2006). (iii) The decision of the hon'ble Punjab and Haryana High Court in the case of Rajesh Chawla v. CIT [2006] 203 CTR (P&H) 209. (iv) The unreported decision of the hon'ble Punjab and Haryana High Court in the case of Shveta Nanda v. CIT [2011] 336 ITR 298 (P&H) (Income-tax Appeal No. 810 of 2008-date of decision April 18, 2011). As regards the penalty imposed on difference in the valuation of sale of property, the learned Departmental representative merely relied upon the order of the Assessing Officer. 6. On the other hand, learned counsel for the assessee reiterated the submissions made before the learned Commissioner of Income-tax (Appeals) and submitted that surrender letter was filed during the search itself on August 10, 2006 which is already part of the record. The assessee has paid advance tax of Rs. 5 lakhs each on due dates and the same has also been the part of the record and thus assessee paid Rs. 15 lakhs as advance tax on the surrendered income whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unjab and Haryana High Court in the case of CIT v. Ravail Singh and Co. [2002] 254 ITR 191 (P&H) held that (catchwords) "Penalty-Concealment of income-Additions made on basis of estimate and not on concrete evidence of concealment of income- Penalty not leviable under section 271(1)(c)-Income-tax Act, 1961, s.271(1)(c), Expln". 7. He has also relied upon the decision of the hon'ble Supreme Court in the case of CIT v. Reliance Petroproducts P. Ltd. [2010] 322 ITR 158 (SC) held that (catchwords) "No information given in return found to be incorrect-Making incorrect claim-Does not amount to concealment of 'particulars'-Income-tax Act, 1961, s. 271(1)(c)". 8. Learned counsel for the assessee, therefore, submitted that all facts and surrender of the amount were already within the knowledge of the Revenue Department and part of the record and it was also specifically disclosed in the cash flow and the balance-sheet filed at assessment stage on December 16, 2008, therefore, it is a case of bona fide error and not a case of concealment of income. He has submitted that the assessee has surrendered amount during the course of search under section 132(4) read with clause (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order sheet dated December 24, 2008, pointed out by learned Departmental representative the assessee has filed cash flow chart and the balance-sheet on December 16, 2008 before the Assessing Officer wherein the surrendered income had been reflected and the copy of the same is filed at pages 6 and 7 of the paper book. It would, therefore, show that prior to the order sheet dated December 24, 2008, the Assessing Officer did not raise any query on this issue and prior to that the assessee had already declared and disclosed that Rs. 45 lakhs had already been disclosed to the Revenue Department is also accounted for in the cash flow statement (capital account) and the balance-sheet. The assessee, therefore, disclosed all the particulars of the surrender of amount as well at the stage of the assessment. The assessee on relying the mistake has immediately filed the revised return on December 26, 2008 including the surrender amount of Rs. 45 lakhs in the return of income. Such was an inadvertent mistake on the part of the assessee because the fact of the surrender of Rs. 45 lakhs was already disclosed before the Assessing Officer prior to the assessment as well as the assessment stage be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the facts that the assessee's claim was bona fide and that all the particulars relating to the computation of income had been disclosed. Thus, the Tribunal rightly cancelled the penalty levied". 9.4. The hon'ble Punjab and Haryana High Court in the case of CIT v. Bhandari Silk Store [2011] 337 ITR 153 (P&H) held that (headnote) "the Tribunal while upholding the deletion of penalty on surrender of Rs. 2 lakhs had categorically recorded that the surrender related to the stocks included under the definition of other valuable articles or things and that the condition enumerated under Explanation 5 to section 271(1)(c) were fulfilled. It was also not disputed that the statement of the assessee was recorded under section 132(4) of the Act on the date of search. Therefore, the Tribunal was right in upholding the order of the Commissioner (Appeals) cancelling the penalty on Rs. 2 lakhs. It had been noticed by the Tribunal that the assessee had disclosed the amount of Rs. 1,25,000 at the time the search party was leaving the premises of the assessee. It was further recorded that the time for filing the return of income for the assessment year 1989-90 under section 139(1) had not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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