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TMI Blog2017 (7) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... dding income. We are in complete agreement with the view taken by the authorities. The issue is required to be answered in favour of the assessee against the department. - D.B. Income Tax Appeal No. 8/2013 - - - Dated:- 20-7-2017 - Mr. K.S. Jhaveri And Mr. Inderjeet Singh JJ. For the Appellant(s) : Ms. Parinitoo Jain with Ms. Shiva goyal For the Respondent(s) : Mr. Gunjan Pathak with Ms. Ishita Rawat JUDGMENT 1. By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal preferred by the department confirming the order of CIT(A). 2. This court while admitting the matter framed the following question of law:- Whether the Tribunal was l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AY 2009-10. On the basis of highly incriminating cash book and other documents found, the assessee admitted to have obtained bogus accommodation entries of ₹ 4 Crores in the Asstt. Yead 2008-2009 through one Sh. Subhash Chand Gupta, Chartered Accountant, New Delhi, which have been surrendered as above. However, the assessee through a letter dated 10.12.2009 admitted undisclosed income of ₹ 1.50 Crores as against ₹ 2 Crores on account of bogus liabilities in the Asstt. Year 2007-08. 4. After considering the matter, the AO has imposed penalty after considering the concealment and other documents. However, CIT(A) merely observing in para 4.3 which reads as under:- 4.3. I have gone through the penalty order as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the survey and after the survey. The AO himself had accepted the reduced disclosure without any obhjection. The assessee did not produce the exemption certificate to claim 80G deduction for ₹ 85,500/- but particulars of income had been disclosed and claimed by the assessee in his return. The AR relied upon various decisions in his explanation which supports the assessee s claim. The assessee has disclosed the facts relating to the income before the AO. As penalty u/s 271(1)(c) is having quashi criminal nature, the burden lies on the department to establish that assessee has concealed income or furnish inaccurate particulars. In penalty proceedings the matter must be considered afresh from an angle different from assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs for each of the two assessment years. Thereafter, on 30th March, 1990, the revised return of asst. yr. 1985-86 was further revised upward by disclosing additional income of ₹ 78,56,613 under forwarding letter dt. 30th March, 1990. 6. It is clearly stated that after the reassessment the income comes to ₹ 2,26,03,078/- and the penalty was imposed. She has also relied upon the decision of Supreme Court in case of Mak Data P. Ltd. Commissioner of Income Tax reported in [2013] 358 ITR 593 (SC) wherein para 10 it has been held as under:- 10. We are of the view that the surrender of income in this case is not voluntary in the sense that the offer of surrender was made in view of detection made by the AO in the search co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us to the order of Tribunal and contended that in view of the observations made by the Tribunal and decision relied upon rendered by Madras High Court in the case of CIT vs. M/s Cafco Syndicate Shipping Co. 2007-TIOL-599-HC-MAD-IT, DCIT vs. Bhanwar Lal Mahendra Kumar Soni 54 DTR 271 (JD) (Trib) (2011) and Dilip Yeshwant Oad vs. ACIT 55 DTR 113 (Pune B ) (2011), the Tribunal after discussing the law upheld the order of CIT(A) and dismissed the appeal. 8. We have heard counsel for both the sides. 9. Taking into consideration the first finding by the CIT(A) and affirmed by the Tribunal holding that mere concealment will not be the case for penalty but there should be some evidence to establish that it was a concealment. Mere disclosure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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