2011 (4) TMI 826

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....The following substantial question of law has been claimed for determination of this Court: "Whether on the facts and in the circumstances of the case, the learned ITAT was right in law in setting aside the order of the CIT (Appeals), and restoring the order of the Assessing Officer whereby penalty of Rs. 78,750 has been imposed by the Assessing Officer in spite of the fact that no concealment has been found by the Assessing Officer at the time of survey as well as scrutiny and further the said amount has been voluntarily declared by the assessee." 3. The facts, in brief, necessary for adjudication as narrated in the appeal, are that during a survey under section 133A of the Act carried out at the business premises of M/s. Cossets Marketi....

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....the surrender of the additional income by the assessee was not voluntary and in good faith rather she was compelled by the circumstances to do so. It was further observed that the assessee had not even declared any additional amount of income surrendered during the course of survey. The Assessing Officer, after considering various judicial enunciations cited before him held by his order dated 28-9-2006 that the assessee was liable to pay penalty under section 271(1)(c) of the Act for furnishing inaccurate particulars of her income of Rs. 2,50,000. The Assessing Officer imposed penalty at the rate of 100 per cent of the tax sought to be evaded, which worked out to Rs. 78,750. 6. The Commissioner of Income-tax (Appeals) [in short "CIT(A)"] a....

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....igible on the assessee. Learned counsel for the Revenue, on the other hand, supported the order passed by the Tribunal. 11. We have given our thoughtful consideration to the submissions made by learned counsel for the appellant and find no merit therein. The Tribunal, in para No. 9 of its order has recorded as under: "9. We have considered the rival submissions and perused the material available on the record. In the instant case, the learned CIT(A) while deleting the penalty wrongly held that the Assessing Officer failed to prove concealment independent of the disclosure made by the assessee. It is noticed that the Assessing Officer while levying the penalty, categorically stated that the action on the part of the assessee was not volunt....