1981 (1) TMI 15

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.... J.-The two questions which have been referred at the instance of the Revenue in this reference are as follows: " (1) Whether, on the facts and in the circumstances of the case, penalty can be sustained after the assessee has filed the revised return before the assessment is completed by the ITO ? (2) Whether, on the facts and in the circumstances of the case, Explanation to section 271(1)(c....

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....f Rs. 7,800 and Rs. 37,800 credited in his account by Rai Bahadur Seth Durgaprasad (Mining) on October 27, 1967, and September 29, 1967, respectively, represented an advance received against sales of 78 shares of Rs. 100 each of M/s. Bombay Metal and Alloys Manufacturing Co. and 378 shares of Rs. 100 each of the same company. The assessee informed the ITO that the transfers of the shares were made....

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....ok the view that since the assessee had shown the income from the transfers of the shares in the revised return, penalty could not be levied. In addition to this, on merits the Tribunal came to a finding that the failure to disclose the income by way of capital gains " was just an omission on the part of the assessee ". The Tribunal recording a finding in favour of the assessee observed as follows....

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....d by the assessee in the revised return, we hold that penalty is not attracted. It is cancelled." Arising out of this order of the Tribunal, the questions reproduced above have been referred. Now, the order of the Tribunal shows that the question as to whether the assessee had deliberately concealed the item of capital gains when the original return was filed has been expressly considered by....