TaxTMI 
TaxTMI 
2016 (9) TMI 812
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....n the year 2008-09 corresponding to AY 2009-10. As per the mercantile system of accounting, the assessee should have included this income in the relevant assessment year but under the mistaken impression on actual receipt basis they have included the same in the income of next year. However, on coming to know of this lapse, the assessee claims to have filed a revised computation of income voluntarily and even before the AO detected the said lapse. However, the AO initiated penalty proceedings holding that the act of the assessee amounts to deliberate avoidance of tax payment, and imposed penalty on the addition of Rs. 73,77,914/- towards commission income for deliberate concealment of income. Aggrieved by the said penalty order assessee carried the matter in appeal before CIT(A), who vide para 5.2 reached to a conclusion that the assessee never intended to conceal the receipt as alleged by the AO but it is only a matter of showing the income in the subsequent year due to bona fide mistake. On this premise, the ld. CIT(A) deleted the penalty. 3. Challenging the said order of the CIT(A) the revenue came in appeal before us on the following Grounds: "1. That, on the facts and under....
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....A), deterency is one of the modes of enforcement of law without which it will not be possible for the revenue to implement the provisions of the Act and to obtain the desired results. For these reasons, he prayed before us to hold want of bona fides on the part of the assessee and to restore the penalty imposed by the AO. 5. On the other hand, it is the argument of the Ld. AR that there is a bona fide mistake for not including the particular income in the return of income for the relevant year and it is evident from the fact that not only in the next year income it was included but also that the moment the assessee came to know of this lapse, without any demur he offered the same to tax. For the sake of deterrence, the bona fide wrong doers cannot be punished and it is not the intent of the penalty proceedings. 6. Basing on the above facts and contentions the issue that arises for our consideration is whether the CIT(A) is justified in deleting the penalty imposed by the AO on the premise that the assessee deliberately concealed the income? 7. Absolutely there is no dispute in the facts that though the assessee failed to include the commission income in question in the return su....
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....tional disclosure of income of Rs. 73,77,914/- for the Asst Years 2009-10 before any detection by the department in order to meet the deficiencies, if any, on the outflows of the assessee, had sought to genuinely rectify the omission or misdeed which had been made in the original disclosure statement u/s 132(4) of the Act. On this point we profitably make reference to the Third Member decision of the co-ordinate bench of Delhi Tribunal in the case of Addl CIT vs Prem Chand Garg reported in (2009) 31 SOT 97 (Delhi) (TM ) dated 11.5.2009, wherein it was held that :- 19. The fact , whether there is concealment of income or whether inaccurate particulars thereof have been furnished is essentially a question of fact. To find out that or to decide which, all the attending circumstances have to be taken into account. The question is at what point of time this material fact is to be found out. Generally it is with reference to the return of income and at that time it is to be seen whether there was concealment of income from or furnishing of inaccurate particulars thereof in the return of income chargeable to tax. But there may be cases, where an income is not declared in the return or t....
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....rn or by furnishing the particulars of such income before the detection by the Assessing Officer. The mere fact that the assessee had not revised the returns or that the offer was by letter to avoid harassment to the assessee and the donors who were non-resident persons, it cannot convert an offer to tax as concealment of income. Therefore, in my opinion the assessee has not furnished inaccurate particulars of the income in the returns. 22. Therefore, mere omission of the surrendered income from the return of an item of receipt does neither amount to concealment nor furnishing of inaccurate particulars of income unless and until there is some evidence to show exist or some circumstances found from which it can be gathered that the omission was attributable to an intention or a desire on the part of the assessee to hide or conceal the income so as to avoid the imposition of tax thereon. Apart from the surrender there was nothing more on record to hold the assessee guilty of offering the said amount on detection of the concealment. Even in assessment order there is nothing of that sort. In the assessment proceedings the Assessing Officer has raised some specific question not based....