Hon'ble Prakash Krishna,J.
Heard Shri R.K. Upadhyay, learned counsel for the appellants and Shri P.K. Jain, learned counsel for the respondent.
These two appeals filed against the same judgement and order dated 3.11.2000 arising of penalty proceeding have been heard together and are being disposed of by this common judgement.
Income Tax Appeal No. 129 of 2001 has been filed against the order of Tribunal dated 3.11.2000 by which the appeal of the assessee was allowed and the penalty imposed under section 271(1) (C) was deleted.
The Income Tax Appeal No. 119 of 2001 has been filed against the same order of the Tribunal deleting the penalty under section 273 (2A) of the Act.
The assessee had submitted his return of income tax on 30.9.1986 on estimated income of Rs. 80,000/-. A note was put up in the return "Subject to the further adjustment with department". Subsequently, the revised return was filed by the assessee wherein the income of Rs. 2,50,000/- was mentioned. The proceedings were initiated under sections 271(1)(a) 271 (1)(c) and 273 (2) (a) of the Act. The Assessing Officer had imposed the penalty against which the appeal was filed, which was rejected by the appellate authority on 15.5.1991 which was challenged before the tribunal. The Tribunal while allowing the appeal of the assessee with regard to the penanlty proceeding under section 271(1)(C) has made the following observations:
" I have heard the rival submissions in the light of material placed before me and the precedents relied upon. It was stated before me that the books of accounts of the assessee were accounted by the assessing officer in December, 1985. The return was originally filed on 30th Sept., 1986. It was filed on estimated basis. The income was reflected at Rs. 1,82, 500/-. I have inspected the assessment records. I find that on return filed on 29.3.1988 the learned counsel for the assessee. Shri Lalit Kumar made a note and offered to be assessed at Rs. 2,50,000/- From the assessment order it is clear that the assessment was completed on Rs. 2,50,000/- i.e. on the basis of the offer made by the assessee. As such, the observations of the CIT ( Appeals) that assessment was not on agreed basis appears to be incorrect. NO such noting was brought before me in the assessment field. Once it was proved that the assessment was on agreed basis the law laid down by the Apex Court in the case of Sir Shadi Lal Sugar and General MIlls 168 ITR 705 (SC) can be applied in the facs and circumstances of the present case. From the mere fact of the assessee agreeing to additions, it does not follow that the amount agreed to be added was concealment income. The Revenue failed to establish the factum of concealment beyond the shadow of doubt. Having regard to the facts, I direct the assessing officer to delete the penalty."
Learned counsel for the appellant has relied upon the judgement of Apex Court passed in the case of K.P. Madhusudhanan Vs. Commissioner of income Tax, reported in ITR Volum 251 (2001). The aforesaid judgment is on different set of facts and not applicable in the present case.
We have heard learned counsel for the parties and perused the record.
From the assessment order which has been filed, it is clear that the return was filed on estimated income with note "subject to further adjustment with department". Further it was mentioned in the return that the Books of firm are impounded with the I.T.O. E-Ward , M. Nagar. The assessee voluntary disclosed the higher return of income under scheme to co-operate with the department.
The tribunal has rightly taken view that there is no concealment of income since in the return itself it was mentioned that the same was estimated income and further adjustment with the department is contemplated. No substantial question of law arises for consideration in these appeals. The appeals are concluded by finding of facts.
The appeals are dismissed.
Order Date :- 5.4.2012 R