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TMI Blog2012 (12) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... ror in confirming the penalty imposed by the Assessing Officer and confirmed by the CIT(appeals). Even if the assessee had made any further declarations in the revised return, we cannot lose sight of the fact that such return was filed only after the survey was carried out by the Revenue and further that such revised return was rejected as non-est. It is not necessary for us to go into this aspect any further since we find that the Assessing Officer had come to a definite finding that the penalty was required to be imposed since the assessee had concealed the particulars of income. We therefore, need not disturb the Tribunal's ultimate conclusion merely for the fact that the Tribunal rejected the assessee's contention may be on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee company had filed return of income on 19-10-2001 for assessment year 2001-2002 declaring total income of ₹ 9,86,384/-. Such return was first taken in scrutiny under section 143(3) of the Act on 24-12-2002. Survey under section 133A was conducted on 30-1-2003 with respect to the said company. Company thereupon had filed revised return for the said assessment year on 11-3-2002 declaring total income of ₹ 90,69,750/-. Assessment was completed on 13-3-2002 determining total income at1 ₹ 93,59,280/-. In such assessment order, the Assessing Officer provided for issuance of notice for initiating penalty proceeding under section 271(1)(c) read with section 274 for concealing particulars of income or furnishing inaccurate par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return was treated as non-est. It was noted that section 139(5) of the Act would enable a person only when he discovers that inadvertent omission or an unintended wrong statement had crept in the return filed by him. However, when the person who furnished the return was aware about the falsity of the statement and the incorrectness of the particulars of income, even while he filed the original return, provisions of section 139(5) of the Act would not be applicable. Assessee's contention that in view of explanation 5 to section 271(1)(c) of the Act, no penalty could be levied was also rejected since according to the, Commissioner(Appeals) , such explanation would grant immunity only in case where during the course of search, assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome. He submitted that even if return, for the purpose of assessment was held to be invalid, declarations made in such a return cannot be wiped out. Counsel further submitted that even if the Tribunal had in the assessment proceedings come to the conclusion that such return was invalid, ipso facto it would not mean that penalty must follow. Counsel next contended that the Assessing Officer in his order of assessment directed initiation of penalty proceedings for concealment of particulars of income or furnishing inaccurate particulars. He submitted that such action was opposed to the ratio laid down by this Court in case of CIT v. Manu Engg. Works [1980] 122 ITR 306 (Guj.). 7. We are however of the opinion that in the impugned judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d turnover of more than ₹ 5.94 crores. They were dealing with big corporate houses. Directors had vast experience in the line of business. Claiming huge expenditure to the tune of ₹ 1.6 crore cannot be termed to be a mere mistake. The Tribunal concluded that the assessee had debited expenses on accounts of bogus companies which was accepted by the assessee in his statement during the survey proceedings. 8. In such facts we are of the opinion that the Tribunal committed no error in confirming the penalty imposed by the Assessing Officer and confirmed by the CIT(appeals). Even if the assessee had made any further declarations in the revised return, we cannot lose sight of the fact that such return was filed only after the surve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inaccurate particulars of such income. It was in this respect the Bench observed that Now the language of and/or may be proper in issuing a notice as to penalty order or framing of charge in a criminal case or a quasi-criminal case, but it was incumbent upon the IAC to come to a positive finding as to whether there was concealment of income by the assessee or whether any inaccurate particulars of such income had been furnished by the assessee. No such clear cut finding was reached by the IAC and, on that ground alone, the order of penalty passed by the IAC was liable to be struck down. 10. In case of CIT v. Pearey Lal sons (EP) Ltd. [2009] 308 ITR 438, Punjab and Haryana High Court observed as under : 13. We are in agreement w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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