TaxTMI 
TaxTMI 
2014 (9) TMI 700
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....ade it difficult to reconcile the renewed deposits with old ones and so there was no concealment of income? c) Whether the Tribunal was correct in law in confirming the penalty on the legal heirs of the deceased in the absence of any finding as to concealment by the legal heirs? d) Whether the finding of the Tribunal is perverse as no finding was given in respect of the contentions raised by the assessee? e) Whether the Tribunal was justified in not following the decision of the Supreme Court in 251 ITR 9 and that of Delhi High Court in 335 ITR 259 and cancelled the penalty under Section 271(1)(c)?" 2. The brief facts are as follows: The assessee was in the business of operating transport bus in Salem District. The assessee filed return of income for the assessment years 2002-03 to 2007-08 on various dates. On 06.01.2009, there was a survey under Section 133A of the Income Tax Act in the premises of the assessee and a statement was recorded with regard to the fixed deposits made by the assessee in Rasipuram Co-operative Urban Bank Limited, Rasipuram. On 13.1.2009, the assessee filed a letter with the Department stating that the deposits were all made out of the amount of Rs. 2....
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....s), who dismissed the appeals holding as follows: "5. I have considered the penalty order and the submissions of the appellant. The only issue to be adjudicated is the levy of penalty u/s 271(1)(c) of the Income-tax Act, 1961. All the grounds relate to the same issue. 5.1 The appellant, inter-alia, has relied the ratio of the apex court in the case of Commissioner vs Suresh Chandra Mittal in 241 ITR 124. The relevant portion is as below: "We find ourselves in agreement with the view taken by the tribunal. It is well settled that under section 271(1)(c), the initial burden lies on the revenue to establish that the assessee had concealed the income or has furnished inaccurate particulars of income. The Burden shifts to the assessee only if he fails to offer any explanation or offers an explanation which is found to be false by the assessing authority. However, the Explanation 1, provides for the shifting of the burden again where the explanation offered by the appellant is found to be bonafide". 5.2. Considering the facts and circumstances of the case, the appellant would not have offered the income but for the detection of the same by the department. The appellants' ex....
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.... the regular returns filed u/s 139(1) or 139(4) or 139(5) of the Act. We, therefore, do not find any reason to interfere with the orders of the lower authorities. They are confirmed and the grounds of appeal of the assessee for the years under consideration are dismissed." 7. Aggrieved by the orders of the Tribunal, the present Tax Case (Appeals) have been filed by the assessee raising the substantial question of law referred supra. 8. Learned counsel appearing for the appellant placing reliance on the decision reported in 2013 (11) TMI 1375 (Commissioner of Income Tax Versus M/s.Gem Granites), would contend that explanation offered by the assessee along with the details of the Fixed Deposits has not been considered by the Department. When once an explanation is submitted, the onus is shifted to the Revenue to come to a conclusion that the explanation is not acceptable and therefore the case falls under Section 271(1)(c) of the Income Tax Act. He further submits that the Assessing Officer without even considering the representation of the assessee dated 13.01.2009, levied penalty under Section 271(1)(c) of the Income Tax Act, which was confirmed by the Commissioner of Income Tax ....
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....is found by the Assessing Officer or the Deputy Commissioner (Appeals) or the Commissioner (Appeals) to be false, or (B) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed." 12. In the decision reported in 2013 (11) TMI 1375 (Commissioner of Income Tax Versus M/s.Gem Granites), this Court while dealing with the issue of penalty imposed under Section 271(1)(c) of the Income Tax Act held as follows: "11. In a recent decision of the Hon'ble Supreme Court in Civil Appeal No.9772 of 2013, dated 30.10.2013 (Mak Data P. Ltd., vs. Commissioner of Income Tax-II), the Hon'ble Supreme Court while considering the Explanation to Section 271(1), held that the question would be whether the assessee had offered an explanation for concealment of parti....
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....r explanation of the assessee that the details of every year's deposit and the interest earned thereon though not available immediately, would be collected and given shortly. He further explained that as on 31.3.2001, Rs. 30 to 40 lakhs were available as deposit and the details of the said fixed deposits were filed along with the letter. 14. It is on record that after giving this explanation along with the documents, the assessee died on 27.5.2009. After the assessment order was passed in response to the notice, the legal heirs have filed a detailed reply giving the explanation reiterating in addition to what was submitted by the said N.R.Palanivel on 13.1.2009. Even in that reply, they have relied upon two decisions in the case of CIT Vs. Pachamuthu & Another reported in (2007) 295 ITR 502 and CIT Vs. Rajiv Garg & Ors reported in 224 CTR 321. 15. It appears that some details were furnished in the form of explanation by the legal representatives of the deceased assessee, but we find from the proceedings by the Assessing Officer as well as the first Appellate Authority and the Tribunal that except adverting to the letter of the legal heirs of N.R.Palanivel, there is no discuss....