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TMI Blog2018 (1) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... inal assessment was upheld by this court in all respects. 3. The order passed by this court is annexure-A. Subsequently penalty proceedings under section 271(1)(c) were initiated and by annexure-B order, penalty of Rs. 10.51 lakhs was imposed. However, by annexure-C order, the Commissioner of Income-tax invoked his jurisdiction under section 263 of the Act, set aside the order and directed the Assessing Officer to pass fresh order under section 271(1)(c). Accordingly, proceedings were initiated and by annexure-D order, penalty of Rs. 13,24,176 was imposed on the assessee. The appeal filed by the assessee was rejected by the Commissioner (Appeals) and the assessee carried the matter in appeal to the Tribunal and by annexure-F order, the Tribunal set aside the order of penalty. The Revenue challenged the order of the Tribunal in ITA No. 185 of 2010. By annexure-G order, this court allowed the appeal and set aside the order of the Tribunal. The Tribunal was directed to decide the matter afresh 4. Accordingly, the matter was heard afresh, and the Tribunal deleted the penalty levied on the additions of Rs. 16,60,854 and Rs. 1,88,000 and at the same time, sustained the penalty on unexp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer has computed the total income, production and sales of tin and the closing stock on the presumption that the entire tin sheets purchased were fabricated at the end of each month. It is not the case of the Revenue that the assessee has purchased any tin sheets outside the books of account. If the tin sheets were purchased outside the books of account, then the assessee could have produced more than 1,69,318 tins. The sales as found by the Assessing Officer is 1,36,659. The difference would be only 32,659. These details are available on the material filed by the assessee before the Assessing Officer which was admittedly impounded. The assessee claims that the stock was only 3,200. Since all the material were available on record, this Tribunal is of the opinion that it cannot be considered that the asses see has furnished inaccurate particulars of income or concealment of any part of income. In other words, the assessee has furnished the entire details of purchase of tin sheets, fabrication, and sale of tin. On the basis of the material furnished by the assessee, the Assessing Officer computed the closing stock, however, at the final stage by adopting the figure determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce available with the Trichur branch was Rs. 3,91,245. In these circumstances, it cannot be said that there cannot be transfer from Trichur Branch to the Head Office as on April 13, 1991. Further, the fact remains that this Tribunal confirmed the addition made by the Assessing Officer in the quantum addition which was confirmed by the High Court as well. The fact remains that Rs. 1,88,000 was transferred on April 13, 1991, on which date sufficient cash balance was available. In the following days, the cash balance was low. Therefore, there may be justification for making addition of Rs. 1,88,000 in the assessment proceedings. In view of the extract of the book which was extracted at page 8 of the assessment order, this Tribunal is of the opinion that the assessee cannot be said to have furnished inaccurate particulars or there was any concealment of any part of income. In the absence of any other material other than what was extracted by the Assessing Officer at page 8 of the assessment order, from the cash book entries of the Trichur branch as on April 13, 1991, this Tribunal is of the opinion that levy of penalty with refer ence to the addition of Rs. 1,88,000 is not justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticulars have been concealed." 10. A reading of this provision would show that in the course of any proceedings under the Act if the Assessing Officer is satisfied that any person has concealed the particulars of his income or furnished inaccurate particulars of such income, the Assessing Officer may direct that such person shall pay by way of penalty in addition to tax, if any payable by him, a sum, which shall not be less than, but which shall not exceed three times the amount of tax sought to be evaded by reason of the concealment of the particulars of his income or the furnishing of inaccurate particulars of such income. In Explanation 1, what is relevant is clause (B). In terms of this provision where in respect of any facts material to the computation of the total income of any person under the Act, such person offers an explanation which he is unable to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then the amount added or disallowed in computing the total income shall be deemed to represent the income in respect of which particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the returns furnished. Similar is the judgment in Manural Huda Trust v. CIT [2016] 3 KHC 683, where also this court had occasion to explain section 271(1)(c). 13. While in this context, we may also advert the judgment of this court in CIT v. Haji P. Mohammed [1981] 132 ITR 623 (Ker). That was a case where in the original return filed by the assessee he had concealed certain income. When the Income-tax Officer confronted the assessee with the income concealed by him, the assessee immediately filed a revised return. Despite that, proceedings were initiated under section 271(1)(c) and in the judgment, this court held that the fact that revised return was filed did not absolve the assessee from the liability for penalty. These principles are stated in paragraphs 8 and 9 of the judgment, the relevant portion of which read as under (page 629 of 132 ITR) : "At the time when the assessment was taken up for finalisation the Income-tax Officer confronted the assessee with the aforesaid information which he had and questioned the assessee as to why the said amount had not been included in the return. It was only thereafter that the assessee purported to file a revised return including th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul agreement." 14. Yet another judgment, which is of relevance is Brij Mohan v. CIT [1979] 120 ITR 1 (SC). This judgment also lays down in categoric terms that the concealment of the particulars of income is effected by the assessee when return of his total income is filed. 15. Bearing the aforesaid principles in mind, if the correctness of the order passed by the Tribunal is evaluated, it can be seen that the sum total of the reasoning of the Tribunal is that since the details were available on the material filed by the assessee before the Assessing Officer, the assessee cannot be said to have furnished inaccurate particulars of his income or concealed any part of his income. If the concealment or furnishing of inaccurate particulars of income is an act committed by the assessee at the time of filing the return, the liability of the assessee or the culpability of the assessee is his conduct at the time when he filed the return. In such a case, even if it is assumed that concealment of the income was invented by the Assessing Officer from the details that are furnished by the assessee, that does not amount to a disclosure made by the assessee nor does it absolve the assessee from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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