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TMI Blog2023 (3) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... y depositing due taxes. As during the year the assessee has offered taxable income of Rs. 4,03,78,080/- on account of professional receipt, STCG and other receipts. Thus, considering the same, we find force in the contention of the assessee that impugned receipt of Rs 5 lakh was omitted due to oversight without being any mala fide intention. AO only on the basis of presumption and surmises held that the assessee offered income only after same has been identified by the department. Such presumption of the AO is not based on any material. Therefore, in this fact and circumstances it cannot be held that the assessee has concealed or furnished inaccurate particulars of his income and liable to penalty under section 271(1)(c) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn filed under section 139 of the Act for the year, the assesse declared income at Rs. 4,03,78,080/- under the head income from profession, STCG and other income. The case of assessee was selected under limited scrutiny under section 143(2) of the Act. During the assessment, the assessee vide letter dated 18-08-2017 submitted that due to oversight by the accountant an amount of Rs. 5 lakh being professional receipt form M/s Health Secure (India) Pvt. Ltd was not included in income but the credit of TDS on the same was claimed. The mistake was identified while preparing data for assessment and on realization of mistake he immediately deposited the due taxes. The AO accordingly completed the assessment after making addition of Rs. 5 lakh as m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea, however the element of means rea has been done away by inserting the explanation to the provision of section 271(1)(c) of the Act. The explanation to section 271(1)(c) provides that any addition made to the total income shall be deemed as concealment of income unless the assessee furnishes explanation and proves that such explanation is bona fide. However, the assessee failed to substantiate the explanation furnished by him and also failed to prove that such explanation was bona-fide. The AO in holding so referred the CBDT circular no. 486 dated 23-09-1986 and several judicial pronouncements. Accordingly, the AO levied the penalty of Rs. 1,54,500/- being 100% of tax sought to be evaded. 6. On appeal by the assessee, the learned CIT ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under: It is well-settled that under section 271(1)(c), the initial burden lies on the revenue to establish that the assessee has concealed the income or has furnished inaccurate particulars of such income. The burden shifts to the assessee only if he fails to offer any explanation for the undisclosed income or offers an explanation which is found to be false by the assessing authority. However, the proviso to Explanation 1 provides for shifting of this burden again where the explanation offered by the assessee is found to be bona fide. 8.2 On further appeal by the department, the Hon ble supreme court also confirmed the finding of the Hon ble High court which is reported in 251 ITR 9. 8.3 Coming to the case on hand, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of his income and liable to penalty under section 271(1)(c) of the Act. In holding so, I also fine support and guidance from the judgment of Hon ble Gujarat High Court in case of PCIT vs. Gujarat State Electricity Corporation Ltd. reported in 144 taxmann.com 165 where the Hon ble court held that in no penalty can be imposed where the assessee made bona fide mistake and corrected the same on realization of mistake. The relevant observation of the Hon ble court extracted as under: 11. We have considered the submissions made by learned advocate for the Revenue and in view of finding of fact arrived at by the Tribunal to the effect that the assessee on realisation of the mistake, has rectified the same by offering the provision for inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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