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TMI Blog2016 (5) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the assessee had nowhere been rebutted by the lower authorities at any stage. In the present case, without any rebuttal by the lower authorities, we can very safely infer that whatever amount was surrendered by the assessee was not its actual income, but just an estimate. Why and how the assessee decided to surrender the same and pay additional taxes on it, is not a question, before us, to go into. In these circumstances, it cannot be said that the income was surrendered after detection by the Department. As no income accrued to the assessee during the relevant assessment year. Though it is also a matter to be deliberated upon that there were certain amounts jotted down on the seized documents, which were not explainable by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3.2009 and during the course of survey, certain incriminating documents were found. The assessee agreed to surrender an additional income of ₹ 1 crore. On a return filed in pursuance of notice under section 148, the assessee added the surrendered income in its return of income. The assessment was completed at an income of ₹ 1,00,32,548 making addition of ₹ 32,548- on account of interest on FDRs. Penalty proceedings under section 271(1)(c) of the Act were initiated. During the penalty proceedings, it was stated that the income was surrendered with a condition not to impose penalty. Rejecting the contention of the assessee the Assessing Officer imposed penalty in respect of surrender of ₹ 1 crore. 5. Before the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside and that of the Assessing officer may be restored. 4. The appellant craves leave to add or amend any grounds of appeal before the appeal is heard or disposed off. 7. The learned D.R. relying on the order of the Assessing Officer stated that just because the assessee has itself surrendered the income, penalty under section 271(1)(c) of the Act cannot be deleted. Heavy reliance was placed on the judgment of the Hon'ble Supreme Court in the case of MAK Data (P) Ltd. Vs. CIT (2013) 358 ITR 593 (SC) for the proposition that the surrender made by the assessee after being caught by the Department, does not absolve him from the liability of penalty. 8. The learned counsel for the assessee reiterated the submissions mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. to explain away its conduct. The question is whether the assessee has offered any explanation for concealment of particulars of income or furnishing inaccurate particulars of income. 11. The question is whether the presumption under Explanation-1 to section 271(1)(c) of the Act can be raised when there is no difference between the returned and assessed income. In the present case, assessee having added the surrendered income in its return filed in pursuance of notice under section 148 of the Act, there remains no difference between the returned income and assessed income (apart from a minor addition of ₹ 32,548/-, the penalty on which was confirmed by the CIT (Appeals), assessee is not in appeal). Further, in the background ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e return of income filed by it from year to year. The AO in our view, has recorded a categorical finding that he was satisfied that the assessee had concealed true particulars of income and is liable for penalty proceedings under Section 271 read with Section 274 of the Income Tax Act, 1961. 12. From the above, it is clear that the income was detected in that case during the survey proceedings on a third party, before ten months from the date on which assessee filed the return. These facts go to prove that even after detection of income the assessee did not added the same in his return of income. 13. Coming to the facts of the present case, during survey, admittedly, certain documents were found, which were not explainable by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificant Accounting Policies, it has been mentioned specifically, as follows : Sales Other Income : The company is in the process of development of Mega Housing Project. The sale will commence only on completing of development. 16. In view of the above also, it is quite clear that in fact, no income accrued to the assessee during the relevant assessment year. Though it is also a matter to be deliberated upon that there were certain amounts jotted down on the seized documents, which were not explainable by the assessee. However, none has gone into to find the nature of these figures, in view of the fact that the assessee itself surrendered certain amounts and paid due taxes thereon. In the absence of a categorical finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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