1981 (5) TMI 58

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....m the aforesaid Jeep and capital gains on account of the sale of a plot of land had escaped assessment and he initiated proceedings on 4th March, 1975 under s. 147 read with s. 148 of the Act, Pursuant thereto, the assessee had filed the return on that very day showing total income of Rs. 12,580 as under:   Rs. "Income from House property" 1,188 Loss 3,000 Business :Income from TRT-554 9,577 Share income in the firm of M/s. AkhilChandra Gosh, Kailashahar 2,800 Capital gains 15,377 Less under s. 80T 2,800   12,577 or 12,580 After the said return was filed by the assessee, the ITO completed the reassessment on 24th Dec, 1975 under s. 143(3)/147 of the Act, and determined the total income of the assessee at Rs. 23,170 as detailed below :   Rs. Rs. Share income in the firm M/s. Akhil Chandra Gosh, Kailashahar, as per allocation   12,766 Business : Jeep No. TRT-554     Income from the Jeep estimated at 11,000   Loss depreciation 6,600 4,400 Capital gains (short term)     Sale Proceeds 15,000   Loss Cost of acquisition ....

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....etter dt. 4th March, 1975 referred to in the said acknowledgement receipt that the assessee had voluntarily filed the return on 4th March, 1975 for the year under consideration and that pursuant to the filing of the said return, the ITO initiated the proceedings under s. 147 read with s. 148 of the Act, it was not correct as stated by the ITO that the said return dt. 4th March, 1975 was filed pursuant to the notice issued by the ITO to the assessee under s. 147 read with s. 148 of the Act, since the said return was filed voluntarily, the question of levy of any penalty in the present case against the assessee under s. 271(1)(c) of the Act, does not arise. Even otherwise, it has been urged by Shri H.N. Bharadwaj, the ld. counsel for the assessee that the penalty order merits cancellation inasmuch as no case was made out for the levy of penalty; that the penalty order was barred by time and bad in law. These arguments of the assessee have been controverted by the Deptl. Rep. who has urged that though the application dt. 4th March, 1975 referred to in the aforesaid acknowledgement was not on record, yet there was nothing on the record to prove that the alleged copy filed by the assess....

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....enalty order of the ITO was, therefore, correct. These arguments of the ld. Deptl. Rep. have been controverted to by the ld. counsel for the assessee, Shri Bharadwaj 6. We have given consideration to the above arguments. Without going into the question at this stage as together the return was filed by the assessee voluntarily as in the stand of the assessee before us or it was filed pursuant to the notice served on him under s. 147 read with s. 148 of the Act, the fact remains that this return filed on 4th March, 1975 was after the assessment made against the assessee under s. 143 (1) of the Act. As such, the return cannot by any stretch of imagination be treated to be a revised return under s. 139(5) of the Act, as sought to be made out by the ld. counsel for assessee, Shri Bharadwaj, in the course of these proceedings. 7. Coming the controversy between the parties before us as to whether the said return on 4th March, 1975 was filed voluntarily as stated by the assessee or it was filed pursuant to the notice served on him under s. 147 read with s. 148 of the Act, as is the case of the revenue, we find that this controversy which involves investigation of facts has been raise....

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....e ITO dt. 4th March, 1975 were not correct, we proceed on the basis that those entries by the ITO are correct. As such we are not prepared to accept the case set up by the assessee that he had filed the return dt. 4th March, 1975 voluntarily as sought to be made out in the course of the arguments before us. 9. Having come to the above conclusion if we compare the original return file by the assesee on 20th June,1972, with the return filed on 4th March, 1975 pursuant to the notice served on him on 4th March, 1975 under s. 147 read s. 148 of the Act, the irresistible conclusion is that the assessee in the said original return filed by him had concealed the particulars of his income in respect of the income under the head Income from business in respect of Jeep No. TRT-554 and the income under the head "income from capital gains" in respect of the plot of land sold by the assessee for the year under consideration. As such, on the facts, as they are, we ase inclined to agree with the tax authorities that the assessee has concealed the particulars of his income in the original return filed by him on 20th June, 1972 and that in respect of that concealment penalty under s. 271(1)(c) of....