1993 (12) TMI 100

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....ion 271(1)(c) of the I.T. Act, 1961. 2. The relevant facts are that the assessee is an individual, engaged in cloth business in the name and style of M/s. Pardesi Emporium, Prop. Shri Amir Chand. His accounting period is financial year. In response to notice under section 139(2), the assessee filed his return of income on24th September, 1985at Rs. 78,950 including a sum of Rs. 61,000 offered as his taxable income for the relevant previous year. The assessment was framed at Rs. 79,280, the difference of Rs. 330 being on account of difference in balance sheet and charity. 3. The Assessing Officer noted that the assessee had surrendered the sum of Rs. 61,000 as his income in the return consequent to a survey conducted at the business pre....

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....ssed to the Assessing Officer explaining the discrepancy in stock as also cash found at the time of survey. He also invited our attention to the submissions made before the learned CIT(A) on10th July, 1991submitting that the amount of Rs. 61,000 was surrendered only to buy peace with implied approval and understanding with the Assessing Officer that no penalty would be levied. The assessee also submitted that the survey was conducted on 28th January, 1985 while the return for the relevant previous year ending on31st March, 1975had not become due. He also submitted that there was no question of concealment of any income since no addition stood made to his returned income. He also invited the attention of the learned CIT(A) to the judgment of....

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....no occasion to charge the assessee with concealment of income or for that matter furnishing inaccurate particulars thereof. Assailing the reasoning of the learned CIT(A) that Explanation 5 to section 271(1)(c) was attracted in the case of the assessee, the learned AR submitted that Explanation 5 comes into play only when action under section 132 is taken and it was wrong on the part of the learned CIT(A) to make no distinction between the provisions of sections 132 and 133A of the Act. He also invited our attention to the Order of the Tribunal in the case of ITO v. Sushil Kumar Mittal [IT Appeal No. 5211 (Delhi) of 1989] for assessment year 1985-86 and order for assessment year 1982-83 in the case of Asstt. CIT v. Kala Vastra Niketan [IT Ap....

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....ion of Rs. 330 and assessed at Rs. 79,280. The return filed is not even a revised return. For establishing concealment in a case, it is necessary that a return of income was filed and that the income concealed was omitted from being included in the income returned. There are no such facts on record. On the contrary, the accepted fact is that the returned income has been accepted. The mere fact that a survey took place in January 1985 and the assessee in his return for the relevant previous year ending on31-3-1985voluntarily offered some amount as his income would not per se lead to the charge of concealment being proved automatically by the revenue. There may be hundred and one reasons with the assessee to offer the amount as his income but....