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TMI Blog2009 (8) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 2. The only issue in these appeals relates the levy of penalty u/s.271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') on the amounts of cash loans disclosed by the respective assessees in their revised returns filed after issue of notice u/s.143(2) of the Act. Facts , in brief, as per relevant orders reveal as under:- Name of the assessee Date of filing return & amount(In Rs.) Date of filing revised return & income declared(In Rs.) Date of issue of notice u/s.143(2) Date of Completion of assessment /total income /concealed income(In Rs.) Date of penalty levied u/s. 271(1)(c) and amount(In Rs.) Sh.Manharlal N Modi (HUF) 27-10-05/ 1,23,230 27-10-06/ 9,56,230 18-10-06 23.10.07/ 9,57,725/ 8,33,000 28.04.08/ 2,80,388 Sh.Manharlal N Modi 25.10.05/ 1,68,100 27.10.06/ 3,81,600 18.10.06 23.10.07/ 4,09,014/ 2,13,500 28.04.08 65,331 Smt. Prity Buntykumar Modi, 21.10.2005/ 1,23,340 27.10.06/ 10,35,340 18.10.06 22.10.07/ 11,63,820/ 9,30,000 28.4.08/ 3,13,038 Shri Buntykumar S Modi 27.10.2005/ 1,52,470 27.10.06/ 5,00,446 18.10.06 22.10.07/ 5,75,591/ 3,67,000 28.4.08/ 1,12,682 While completing the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(2) was served and when the revised return was filed by her. It has been clearly recorded by the AO that the notice u/s.143(2) dated 18-10-2006 was served on the Assessee on 19-10-2006. The revised return was field on 27-10-2006 i.e. 8 days after the service of the notice. The AR's argument is therefore factually incorrect & totally irrelevant. Also irrelevant is his claim regarding the role of the new Tax Advisor appointed by the socalled 'Group' and the advice rendered by them regarding the disclosure of the cash loans. It is therefore absolutely clear that the filing of the revised return by the Assessee was not really a voluntary act. It is also clear that the Assessee and the other member of the Group had taken the chance of introducing unaccounted monies in the form of cash loans, and waited to see whether their cases were selected for scrutiny. The Assessee had filed the original return of income on 27-10-2005 which was processed u/s.143(1) on 02-03-2006 accepting the returned income of ₹ 1,23,230. The Assessee waited for a whole year to revise the return of income and did so not after being processed u/s.143(1), but only after the case was selected for scrutiny a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the parties and gone through the facts of the case. We find that neither the assessment order nor the penalty order contains any material suggesting that the differential income declared by the assessee in the revised returns, was detected by the Department before these assessees came forward to furnish the revised returns. Undisputedly, the ld. CIT(Appeals) cancelled the penalty levied u/s 271(1)(c) of the Act in the case of Smt. Nirupaben S Modi and Smt. Reshma Jiteshkumar Modi, wherein the returns were revised before issue of notice u/s.143(2) of the Act, declaring cash loans as income from other sources while in these four appeals before us, the ld. CIT(Appeals) upheld the penalty u/s.271(1)(c) of the Act simply because the returns were revised voluntarily after issue of notice u/s.143(2) of the Act. There is nothing to suggest that AO undertook any inquiries regarding cash loans surrendered by these assessees in their respective revised returns . These assessees stated that returns were revised voluntarily since the new tax consultant engaged by them realised that concerned persons may not come forward to confirm the loans and accordingly, the amount of cash loans was declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was done in good faith and to buy peace and that the assessing authority had failed to take any objection that the declaration of income made by the assessee in the revised return and his explanation was not bonafide. 6.2 Here we may refer to the observations of the Hon'ble Third Member in the case of Prem Chand Garg (supra) wherein it was held that the surrender of the amount after receipt of the questionnaire could not lead to an inference that it was not voluntary in absence of any material on record suggesting it to be bogus or untrue. The issue as to whether there is concealment of income or whether inaccurate particulars thereof have been furnished, is essentially a question of fact. By the time the Assessing Officer takes up the issue and comes across the information in his possession, if the assessee makes up the deficiency and offers the income or furnishes accurate particulars thereof, he cannot be held guilty of concealment of income or furnishing of inaccurate particulars of his income. Any action rectified relates back to original act and to the date and time of filing the return. When the Assessing Officer started scrutiny of the return and initiated assessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that the Assessing Officer has not made out a case for the levy of penalty. 6.4 In the case of Smt. Brij Bala Chaudhary vs. ITO (2004) 82 TTJ (Lucknow) 355 : (2003) 87 ITD 173 (Lucknow), the assessee could not explain a part of capital introduced in her business and therefore, she surrendered ₹ 35,000 for addition under s. 68 due to unexplained cash credit in her capital account. The AO imposed penalty for concealment of income. The Tribunal held that since assessee had made surrender only to purchase peace with the Department and after being compelled by the AO, it was not a fit case for imposition of penalty for concealment of income because concealment of income or particulars of income was not found to be established from the material on record and Department had also failed to prove by independent material that the assessee had concealed her income or particulars thereof. The Tribunal cancelled the penalty imposed under s. 271(l)(c) of the Act. It is relevant to state that while deciding this case, the Tribunal relied on the decision of Hon'ble Supreme Court in the case of CIT vs. Suresh Chandra Mtttal (2001) 170 CTR (SC) 182 : (2001) 251 ITR 9 (SC). In the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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