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TMI Blog2015 (12) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... llant also disclosed the names of various concerns under which he was carrying on his business and also the bank accounts from where cheques/drafts were issued. The appellant after the conclusion of the survey vide letter dated 1.3.2005 made surrender of ₹ 27 lacs i.e. ₹ 15 lacs relating to the assessment year 2004-05 and ₹ 12 lacs relating to the assessment year 2005-06. The income surrendered by the appellant was disclosed in the return of income furnished for the assessment years 2004-05 and 2005-06. The appellant had not furnished any return of income since after the assessment year 1996-97 till the date of survey on 25.6.2004. Information was collected during the survey operation that the business was being carried out in the earlier years also. In view of the information gathered during the survey, the Assessing Officer found that the appellant's income relevant to the assessment year 2002-03 had escaped assessment within the meaning of section 147 of the Act and hence proceedings under Section 148 of the Act were initiated. The investments made by the assessee were not declared and thus there was clear cut case of concealment. - Penalty confirmed - Decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellant filed appeal before the Commissioner of Income Tax (Appeals) [CIT(A)] who vide order dated 29.9.2008, Annexure A.4 partly allowed the appeal. Both the appellant and the revenue filed appeals before the Tribunal. On 15.6.2009, the appellant requested that the penalty proceedings should be kept in abeyance till the decision of the appeal in the Tribunal. Subsequently, again a show cause notice dated 26.2.2010 qua penalty under section 271(1)(c) of the Act was issued to the appellant on 3.3.2010 and in response to the notice, the appellant on 22.3.2010 prayed to keep the penalty proceedings pending till the decision of the Tribunal. On 31.3.2010, Annexure A.5, the Assessing Officer imposed penalty of ₹ 27,95,170/- under section 271(1)(c) of the Act for concealment and furnishing inaccurate particulars of income. Vide quantum order dated 29.4.2010, Annexure A.6, the Tribunal partly allowed the appellant's appeal and dismissed the revenue's appeal. Aggrieved by the quantum order of the Tribunal dated 29.4.2010, the revenue filed appeal before this court as ITA No.36 of 2011 and against the same quantum order of the Tribunal, the appellant filed cross appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also the bank accounts from where cheques/drafts were issued. The appellant after the conclusion of the survey vide letter dated 1.3.2005 made surrender of ₹ 27 lacs i.e. ₹ 15 lacs relating to the assessment year 2004-05 and ₹ 12 lacs relating to the assessment year 2005-06. The income surrendered by the appellant was disclosed in the return of income furnished for the assessment years 2004-05 and 2005-06. The appellant had not furnished any return of income since after the assessment year 1996-97 till the date of survey on 25.6.2004. Information was collected during the survey operation that the business was being carried out in the earlier years also. In view of the information gathered during the survey, the Assessing Officer found that the appellant's income relevant to the assessment year 2002-03 had escaped assessment within the meaning of section 147 of the Act and hence proceedings under Section 148 of the Act were initiated. The investments made by the assessee were not declared and thus there was clear cut case of concealment. The relevant findings recorded by the Tribunal read thus:- - 17. Now only question which is required to be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that of PPP Associates vs. ACIT (supra). In that case also a survey was conducted and certain business income was unearthed during survey for various years. Ultimately profit was estimated at 1.5%. Ultimately even the Tribunal confirmed the penalty in respect of assessment year 1988-89 and 2001-02. However, penalty was deleted for assessment year 2003-04 to 2005-06 because the assessee still had not filed the return. Other decisions relied on by the learned counsel for the assessee are of similar pattern. 18. Now let us consider the decisions of various Hon'ble High Courts relied on by the learned counsel for the assessee. i) CIT vs. Metal Products of India (supra). The assessee filed return of income for ₹ 52416/- on the basis of books of account maintained. The books of account were rejected and addition of ₹ 149624/- was made which was reduced to ₹ 8000/- by AAC. On the balance amount penalty of ₹ 12000/- was levied. The penalty was deleted by observing that merely because the addition has been made on estimated basis by adopting a view that gross profit shown in the books was too low did not automatically lead to the conclusion that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us also the surrender was not made voluntarily and the documents were found in this assessment year still the assessee had not bothered to file any return. Even in Assessment year 2004- 05 and 2005-06 only part of income was declared therefore the assessee has clearly concealed the particular of his income which would attract penal consequences. This said finding has not been shown to be illegal or perverse in any manner by the learned counsel for the appellant-assessee. 8. Adverting to judgment in National Textiles's case (supra) relied upon by learned counsel for the assessee therein, it was held that in order to justify levy of penalty for addition of cash credits, there must be some material or circumstances leading to reasonable conclusion that the amount does represent assessee's income and the circumstances must show that there was conscious concealment or act of furnishing of inaccurate particulars. Explanation 1 to Section 271(1)(c) does not make the assessment order conclusive evidence that the amount assessed was infact the income of the assessee. There is no quarrel with the proposition of law enunciated. However, in the present case, there is con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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