TaxTMI 
TaxTMI 
TaxTMI 
1999 (11) TMI 875
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....eted under s. 144 of the IT Act on total income as under : Asst. yr. Rs. 1975-76 10,05,900 1976-77 3,08,470 1977-78 2,81,350 1978-79 1,32,900 1980-81 90,000 The assessment orders were made on 27th March, 1986, for all the 5 years under consideration. The assessee later filed returns of income on 17th March, 1987, showing the total income as under : Asst. yr. Rs. 1975-76 10,19,063 1976-77 3,23,470 1977-78 2,19,350 1978-79 1,36,900 1980-81 1,00,000 The assessee's claim was that the revised returns filed by him after the completion of the assessments were returns under the Amnesty Scheme and so he was entitled to the benefits available under the scheme. It was contended before the AO that as the assessee was entitled to the benefits under the Amnesty Scheme, he was not liable for penalty under the various sections of the IT Act. The AO did not accept the above contention. He had already initiated penalty proceedings under s. 271(1)(c) as could be seen from the assessment order dt. 27th March, 1986. In response to the show-cause notice issued under s. 274, the assessee gave the explanation that in the light of the circulars issued by the CBDT under the Amn....
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.... the appeals filed before the Tribunal against the assessments. It was his contention that as the revised returns admitting higher incomes had been filed when the Amnesty Scheme was in force, there was no justification for denying the assessee the benefits available under the scheme. Shri Phadkar drew our attention to various circulars issued by CBDT particularly the Circular No. 451, dt. 17th Feb., 1986, explaining the provisions of the Amnesty Scheme. He pointed out that in answer to question No. 28 there was the clarification by the Board that if an addition was contested in appeal the assessee could make a declaration after withdrawing the appeal and that in such a case a lenient view would have to be taken. It was his contention that the Revenue authorities were not justified in ignoring the revised returns filed by the assessee even though the appeals before the Tribunal were withdrawn. The learned counsel added that on merit also no penalty could have been levied under s. 271(1)(c) as the assessments for all these years had been made under s. 144 of the IT Act, more or less on estimate basis. Shri Phadkar submitted that for the asst. yr. 1975-76 the assessment was originally....
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.... the notice under s. 271(1)(c) the AO felt that the default on the part of the assessee was in furnishing inaccurate particulars in the returns but in the orders passed by him penalty was levied for the default of concealment of income. The learned counsel contended that after initiating penalty proceedings for furnishing inaccurate particulars, the AO was not correct in levying penalty on the grounds of concealment of income. It was his contention that the contradiction as above vitiated the penalty orders. 6. Per contra the Departmental Representative Shri Meena supported the order of the CIT(A) and submitted that the appellate authority had found that the returns filed by the assessee after the completion of the assessments were not valid returns under the Amnesty Scheme and in that sense there was no question of any immunity from the levy of penalty. The learned Departmental Representative pointed out that though the assessee made a petition to the CIT on 17th March, 1987, for accepting the revised returns as filed under Amnesty Schemes by the order dt. 4th Sept., 1991, the CIT rejected the petition and refused to grant the immunity. The paper book filed by the assessee's ....
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....ssessee from charge of concealment of income as held by the Kerala High Court in the case of CIT vs. K. Mahim (1984) 39 CTR (Ker) 337: (1984) 149 ITR 737(Ker). Relying on the number of judicial decisions the learned Departmental Representative contended that in view of the fact that the assessee himself had later admitted higher incomes would go to show that by returning earlier lower income, the assessee was concealing the income assessable in his hands for which penalty could be levied under s. 271(1)(c). Regarding the contention that penalty proceedings had been initiated by the AO on finding that the assessee had furnished inaccurate particulars and then there could not have been levy of penalty for the default of concealment of income, the learned Departmental Representative submitted that concealment of income would include furnishing of inaccurate particulars also and so there was no infirmity in the order levying the penalty. 8. We have given due consideration to the submissions of both sides and gone through the facts of the case. The learned counsel for the assessee has also filed before us two paper books containing a number of documents. The CIT(A) has rejected the ass....
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....sst. yrs. 1975-76, 1976-77 and 1977-78. A copy of the order of the Tribunal in ITA Nos. 260-262/Bom/1987, dt. 20th May, 1993, is available in the paper book on p. 7. Though the assessee thereafter made a petition before the CIT under s. 273A(1) the CIT dismissed the same on the reasoning that his predecessor had earlier itself (i.e., by the order dt. 4th Sept., 1991) considered all the aspects of the case, and that the assessee's petition had been rejected earlier not only for non-withdrawal of the appeals, but for other reasons also. 11. As the matter stands now we have to proceed as if the assessee had withdrawn the appeals before the Tribunal and also made the petition before the CIT claiming the benefits under the Amnesty Scheme, particularly immunity from levy of penalty. The CIT(A) has held against the assessee for the reason that as there was a search conducted in the assessee's premises, the assessee had forfeited the benefits under the scheme. In the Board's Circular No. 451, dt. 17th Feb., 1986, the matter is dealt with as under : Q. No. 12 : Can immunity given by the Circular be availed of by assessees whose premises have been searched by the tax authoriti....
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.... was no detection of cash or other valuables. Though there was, later a survey made under s. 133A of the IT Act that action also did not bring out any asset or income of the assessee. In the appellate order (p. 6) the CIT(A) has dealt with this matter as under : "Thus, the crux of the matter is whether any material had been found by the Department during the search or it has been voluntarily declared by the appellant before the Department became aware of existence of such income in spite of the search. The view taken by me consistently in such a situation in all the appeals has been that when the AO has "found materials", to say that there has been concealment, the benefits of Amnesty Scheme will not be available to the appellant. The fact of finding material cannot be equated with the establishing of concealment. That is to say, if from the material seized there is any clue available regarding existence of such like concealed income then it will be held that the Department has found material which can, after analysis and scrutiny, lead to the establishment of concealment, even if actual scrutiny has not been carried out. This view is reinforced by the fact that in....
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....were seized in which cash entries in numerous names are mentioned which do not find place in what the assessee calls regular books of account. The assessee was given time and again asked to submit explanation regarding these entries but he has constantly refused to do so. In these circumstances addition of ₹ 5 lakhs in respect of these entries is being made." (vide para 2 of the Assessment Order dt. 7th March,1979) 14. The learned counsel for the assessee has clarified that the assessee had never refused to submit his explanation regarding the credits. According to him the case was posted for hearing on 3rd March, 1979, and then on 6th March, 1979, and that as the assessee was not given adequate time he did not furnish the details. Drawing our attention to para 1 of the assessment order the learned counsel submitted that the AO made the assessment order on 7th March, 1979, with the observation'"As it is a time barring case, I have no alternative but to resort to the provisions of s. 144 of the IT Act, as there is no time to fix the case again." We agree that this is not the same as stating that the assessee had refused to give any explanation regarding t....
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....; 1,86,500 as unexplained cash credits. It is not clear from the assessment orders as to whether the duplicate sets of accounts related to all the assessment years. As a matter of fact in the assessment orders for the asst. yrs. 1976-77 and 1977-78 there is no mention about any duplicate set of accounts. That means there was no material gathered in the search on the basis of which it could be said that there was detection of any income in the course of the search to rule out the benefit of Q. No. 30 (in the Circular No. 451) to the assessee. In other words the returns of income for the asst. yrs. 1976-77 and 1977-78 also should be considered as amnesty return, entitling the assessee to all the benefits under the scheme. 18. We thus find that there is no justification for denying the assessee the benefits under the Amensty Scheme for the asst. yrs. 1975-76, 1976-77 and 1977-78. In coming to the above finding we are fortified by the observations of the Kerala High Court in the case of N.C.J. John (supra). "The Amnesty Scheme has been introduced for the benefit of tax-payers as well as for the benefit of the Revenue. The provisions of the scheme should be construed keeping in ....
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....s were given, on various dates, the assessee made no attempt to show that the credits were genuine. The total income assessed for this year is ₹ 1,32,898 including other additions as disallowances. For this year the assessee later filed the revised return (claiming as amnesty return) declaring income of ₹ 1,32,900. That means the addition of ₹ 1,09,300 in the assessment order, is also now admitted by the assessee as his income. For this year the assessee had admitted in the original returns, income of ₹ 16,900 only. When the assessee himself subsequently admitted the total income of ₹ 1,32,900 it cannot be said that there was no concealment of income by him to warrant the levy of penalty under s. 271(1)(c). For this year the AO has levied penalty of ₹ 64,500 treating the sum of ₹ 1,09,300 as the income concealed by the assessee. In the circumstances of this case, we find that there was justification for levying the penalty. We accordingly confirm the penalty levied for the asst. yr. 1978-79. 21. We notice that for the asst. yr. 1980-81 the assessee had filed the returns admitting a total income of ₹ 17,500 only. The assessment was ma....