TaxTMI 
TaxTMI 
2012 (11) TMI 589
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....riginal return filed on 20.06.1983, which represented a donation purportedly made to Shri Morarjibai Desai Grammonati Trust. He further noted that this claim was withdrawn in the revised return of income filed on 05.12.1983. According to the assessee, the claim was withdrawn in the revised return because "certain facts have come to our notice which show that this donation of Rs.10,00,000/- may not have reached the Trust". 3. The assessing officer further observed that the assessee had filed the revised return of income withdrawing the claim for deduction only as a result of survey action taken by the income tax department on 06.10.1983 under Section 133A of the Act in the assessee's premises, in the course of which the cash book maintained by the assessee was impounded as it contained the entry made for the donation, which was bogus as revealed by a series of searches conducted by the income tax authorities under Section 132 of the Act in the premises of certain persons stated to be connected with "the racket of making false claim under Section 35CCA in respect of certain donations". It was in the course of such investigation that the tax authorities came to know that even the don....
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....a and one Prem Prakash; the documents found during the search revealed that a number of companies were involved in systematical by claiming benefits under Sections 35(2A), 35(1)(ii) and Section 35CCA of the Act in order to reduce their taxable income, without actually making any genuine donation to the approved trust/ institution. The total amount of donation made in this way by the group of companies under the same management was about Rs.1,00,00,000/- during the period from May, 1982 to September, 1983. The modus operandi was to issue cheques crossed as "account payee only" and to cancel the special crossing later and change it to a simple crossing under the signature of the company's authorised signatory. The cheques were later endorsed in favour of certain third parties by forging the signature of the persons authorised to sign on behalf of donee institutions and deposit them in the account of the third parties, only to withdraw the cash later by issue of bearer cheques soon after the proceeds of the donation cheques were credited in the account. The search also revealed that this modus operandi was later changed and bank accounts used to be opened in the name of the trust and ....
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.... the assessing officer has also referred to the fact that during the survey of the assessee‟s premises under Section 133A on 06.10.1983, the cash book maintained by the assessee, containing the entry regarding the donation was found and it was noticed that though the entry was made for the donation, the name of the donee had not been mentioned in the cash book. In the ledger, the name of the donee in respect of the donation of Rs.10,00,000/- was missing in the donation account. However, a voucher No.408 dated 03.07.1982 prepared in respect of the donation was found, which contained the name of the trust. 8. The assessing officer also referred to the fact that the original return was filed on 28.06.1983, about four months before the date of survey/ impounding of cash book and it was only after the survey that the assessee chose to file a revised return on 05.12.1983 withdrawing the claim for deduction under Section 35CCA. Apparently he wanted to stress the point that the revised return was not filed voluntarily but was filed only when the assessee was cornered and evidence had been collected by the income tax authorities regarding the falsity of the assessee's claim. 9. The ....
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....orted in 48 ITD 465, which was also a case where a claim of deduction was made under Section 35 CCA in respect of donations made through Vipin Mehra and Prem Prakash. It appears that in that case the Tribunal had cancelled the penalty on the ground that the filing of the revised return before any concrete evidence was gathered by the income tax authorities would exonerate the assessee from any guilt. It was on this basis that the Tribunal in the present case endorsed the finding of the CIT (Appeals). The Tribunal also did not examine the facts of the present case but chose to rely on another order of the Tribunal in which the modus operandi adopted by that assessee was the same and the persons involved were also the same, namely, Vipin Mehra and Prem Prakash. 13. In the aforesaid backdrop of facts, it is for our consideration whether the Tribunal was right in endorsing the conclusion of the CIT (Appeals) that the penalty imposed was not justified. On a careful consideration of the matter, we are of the view that the Tribunal was not right in upholding the cancellation of the penalty. It cannot be denied that there were searches and investigations which resulted in the income tax a....
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....how that the purpose for which the account was opened in the bank was only to take away the amount of Rs.10,00,000/-, purportedly given as a donation to the donee - trust in order to claim the relief under Section 35CCA which would reduce the taxable income of the assessee. The amount never left the coffers of the assessee; it also did not reach the donee - trust. It was brought back to the assessee. However, a receipt had been filed by the assessee company purporting to be issued by the donee - trust. Obviously the genuineness of the receipt, in the background of the facts and circumstances, was open to serious doubts. 14. The contention of the learned counsel that the assessee was also a victim of a fraud played by several persons acting in concert cannot be accepted because the special crossing in the cheque was converted or altered into an ordinary crossing by the assessee's Account Manager and Senior Advisor who had also affixed their signatures. There is no denial by the assessee company that they were not acting on its behalf. No proceedings, civil or criminal have been taken against them. No proceedings have also been taken against Vipin Mehra even though it is the case o....
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....claim for deduction was false or bogus. The filing of the revised return is thus an act of despair and the assessee can gain nothing from it. 17. The judgment of a Division Bench of this Court in Qammar-Ud-Din & Sons v. Commissioner of Income Tax, (1981) 129 ITR 703, heavily relied upon by the counsel for the assessee, cannot come to its aid since in that case the assessee was not able to set out its correct income in the original return on account of certain handicaps but even before the assessing officer could investigate into the matter or discover anything wrong with the accounts or return, the assessee came forward with the correct figure of profit and loss account. In this situation it was observed by this Court that though there was certain amount of carelessness on the part of the assessee while filing the original return, but before the department discovered anything remiss therein, the assessee came forward with a true disclosure. The facts are thus very different from the present case. We are not to be understood as holding that the conduct of the assessee after filing the original return is not relevant at all. In fact we respectfully agree with the earlier judgment of....
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....urn, and had also impounded the cash book of the assessee where the entry for the donation had been made, though without the name of the donee being mentioned therein or in the donation account in the ledger. The materials referred to in the penalty order, to which we also have made a reference, prima facie show the guilt of the assessee; the revised return filed by it on 05.12.1983 cannot, therefore, be considered to be voluntary, even on the basis of the judgment of the learned Single Judge of this Court (supra). 19. The two judgments of this Court cited above show that the question whether a revised return filed by the assessee withdrawing a claim or offering additional income was voluntary or not is essentially a question of fact to be decided in the light of the entire material brought on record and the facts and circumstances of each case and particularly having regard to the fact whether the revised return was filed by the assessee when cornered by the evidence or material collected by the revenue authorities or before that stage. However, as noted by the Madras High Court in CIT v. Ramdas Pharmacy, (1970) 77 ITR 276, the filing of a revised return "will not expatiate the c....