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TMI Blog2011 (1) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 was filed on 18.10.2001. Subsequently, notice under Section 148 was issued by the AO on 23.4.2003. In response to this, the assessee filed his written submission dated 13.5.2003 in which he has stated that a revised return had already been filed on 22.4.2002 declaring total income of ₹ 12,60,030 and the same may be treated as the return filed in response to notice issued under Section 148 of the Act. During the course of assessment proceedings, the AO issued notice under Section 274 read with Section 271(1)(c) of the Act. The AO observed in the penalty order that the assessee has furnished the details showing a sum of ₹ 10,00,000 debited in his bank account as unexplained credit entries. This amount was assessee s own money br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer has already found material to show that there has been concealment, that would mean the Department has detected the concealment. If the Income Tax Officer only had prima facie belief, that would not mean concealment has been detected .... In the case of M/s Qudsi International Vs. ITO 1(3), ITA Number 633/Luc/07, ITAT, Lucknow decided on 20.03.2008 and reported as 2009(13) MTC 622 (Trib), the honorable ITAT held that:- Mere raising of query by the AO did not amount detection of concealment. It cannot therefore be said that the revised return was filed after the detection of concealment and not voluntary. The term 'detection' itself implies the AO reached a conclusion but the query raised by Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account. The question is at what point of time this material fact is to found out. Generally it is with reference to the return of income and at that time it is to be seen whether there was concealment of income from or furnishing of inaccurate particulars of thereof in the return of income chargeable to tax. But there may be cases, where an income is not declared in the return of the particular of income show inaccurately in the return but asssessee on realization of mistake, omission or misdeed rectifies that and corrects himself and cleans his breast can he still be accused of concealment though in the return there has been omission? By the time the AO takes up the issue and come across the information in his possession, if the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the order sheet entry dated 27.9.1978, while recording finding that till then no concealment had been detected. In view of the foregoing discussion, we are of the considered opinion that the Tribunal was not justified in upholding that the applicant had concealed the particulars of the turnover and revised return was only a cover up. We accordingly answer the question referred to us in negative i.e., in favour of the assessee and against the revenue. However, there shall be no order as to costs . 4.3 In the case of DCIT-CCII, Ludhiana Vs Rakesh Kumar [2006] 157 Taxman-magazine 71, the honorable ITAT (Chd) held: it could not be said that the assessee has not tendered any explanation because the explanation was given by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been issued to some of his relatives and the amount might have been surrendered because of compulsion of circumstances, it was not sufficient to penalize the assessee as the factum of detection was not there. In the CIT Vs Ved Prakash 269 ITR 255 the honorable Punjab Haryana High Court held that: On the basis of return filed on 10.11.1988, the assessment was completed under section 143(1) on 18.01.1989. Thereafter, on investigations conducted by the Assistant Director (Inv.), it was found that the assessee had purchased the drafts but the same were reflected in the books of account on subsequent dates. While the proceedings before the Assistant Director were on, the assessee furnished another return on 07.03.1991, suo mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said gift amounts voluntarily and before detection by the department, the penalty u/s 271(1)(c) can not survive. 4. We have heard the rival submissions and also gone through the orders of the authorities below. It is an admitted fact that the assessee had filed a valid revised return of income on 22.4.2002 wherein he had suo motu declared the gift amounts as his income. It is also an admitted fact that the Investigation Wing of the Department issued summons only on 31.7.2003. Thus, there was no detection of concealed income prior to the filing of the revised return by the assessee. In our view no concealment having been found in the revised return, the penalty in respect of the income declared in the return originally filed could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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