TaxTMI 
TaxTMI 
2008 (9) TMI 113
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....er Section 148 showing higher income than returned in original return, as a result of survey in the premises of the assessee during which assessee has surrendered income in addition to the income assessed originally and the assessment has been made at such returned income, whether presumption under Explanation 1 to Section 271 (1) (c) could be raised about the concealment of particulars of income to initiate proceedings for levy of penalty during the course of such re-assessment?" The matters relate to same assesses, but to three different assessment years, being 1995-1996, 1996-1997 and 1997-1998, and involve common question, and are therefore being decided by this common judgment. The necessary facts are, that the assessee submitted re....
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....commission and rebate, it was deposed, that the particulars of this claim, i.e. confirmation or other details from the concerned parties is not available, it was given out, that actually the expenditure was incurred, but it is not possible to get it verified to the extent of 100%, therefore, in order to purchase peace of mind, he surrendered the total amount of Rs. 1,00,000/- for the assessment year 1995-1996 and Rs. 1,70,000/- for the assessment year 1996-1997, and prayed, that he may be exempted form liability of penalty and interests. It is this surrendered amount, which is bone of contention, in as much as, after the survey, the assessee filed revised return, disclosing the income, as surrendered, those returns were accepted....
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....ereof which was relied upon in extenso. In this judgment, the judgment of Hon'ble Supreme Court in case of CIT Vs. Suresh Chandra Mittal, (reported in 251 ITR 9) and K.P. Madhusudhanan Vs. CIT (reported in 251 ITR 99) were considered and followed. Learned Tribunal also relied upon the judgment of the Jaipur Bench of the Tribunal, confirming the order of the learned Commissioner. Learned counsel for the revenue, relying upon the judgment of Hon'ble the Supreme Court, in Chairman SEBI Vs. Shriram Mutual Fund (reported in (2006) 5 SCC 361) contended, that Mens-rea is not one of the essential ingredient, for attracting liability, under Section 271. It was also contended that the learned Tribunal, and the learned Commissioner,....
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....ent in Suresh Chandra Mittal and K.P. Madhusudhanan also support the case of the assesses. In Sudarshan's case, it has further been held, that the finding recorded by the Tribunal, or the authorities below, on the question of liability of penalty, is essentially finding of fact, and unless, those findings are alleged to be perverse, or to be vitiated on other counts, available under Sec. 260 A, High court cannot interfere with them. In this sequence, we may gainfully refer to the judgment cited by the learned counsel for the revenue, in Union of India & Ors. Vs. Dharmendra Textile Processors and Ors., (reported in 295 ITR 244 (SC)), wherein it was noticed, that there is a direct conflict, between two judgments of Hon'ble Supreme....