JUDGMENT Rajes Kumar, J.
1. Tribunal has referred the following question of law under Section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as "Act") for opinion to this Court.
"Whether on the facts and in the circumstances of the case the learned I.T.A. was justified in holding that the penalty Under Section 271(c) was not leviable?"
2. The present reference relates to the assessment year 1987-88.
3. Brief facts of the case are as follows:
4. Assessee respondent (hereinafter referred to as "Assessee") is an individual and was doing proprietory business of purchase and sale of silver ornaments in the name of Mohan Lal Narendra Kumar. The original return was filed of 20.07.1987 disclosing the income of Rs. 36,890/- Income declared in the return was accepted under Section 143(1) of the Act vide order dated 15.09.1987. Just after the filing of the return a search was conducted under Section 132(1) of the Act at the business as well as residential premises of the assessee. During the course of search four FDRs in the name of four minor children of the assessee were found and seized from the locker of the bank, owned by the assessee. Total investment in those four FDRs were to the extent of Rs. 3,45,000/-. In the statement recorded on 18.08.1998 at the time of opening of the locker. Mohan Lal Sharma stated that the FDRs in the name of four children namely, Master Ravish Sharma, Manish, Vishal and Baby Namrata Sharma are kept in locker and they were all disclosed under the Income Tax /wealth Tax. During the course of the proceedings under Section 132(12) of the Act Commissioner of Income Tax had held that there was no source of income with the minors and thus the source of FDRs were not proved and it being relatable to the assessee, directions were issued to the assessing officer to assess these FDRs in the hand of the assessee, Thereafter, assessee to buy peace fields revised return including alleged FDRs of Rs. 3,45,000/- in his income. Assessment proceedings were completed afresh according to the law Thereafter, penalty of Rs. 2,50,000/- was imposed. In first appeal amount of penalty was reduced to Rs. 64,878/- being minimum penalty imposable. Assessee being aggrieved filed second appeal before the Tribunal allowed the appeal and quashed the penalty. Tribunal held as follows:
"We have heard the parties at length on the point and we take up the preliminary pleas taken by the assessee. The first plea taken up is that the F.D.Rs. were not valuable article or thing. Explanation (5) of Section 271(1)(c) clearly provide that where in course of search under Section 132, the assessee is found to be the owner of any money, bullion, jewellery, or other valuable article or thing (hereinafter in this explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilising wholly and or in part in his income for any previous year which has ended before the date of the search but the return of income for such year has not been furnished before the said date, such income has not been declared therein, then not with standing such declaration such income for the purpose of imposition of penalty shall be deemed to have concealed. Thus, to attract the provisions of Explanation (5) of Section 271(1)(c) the assessee must be found in possession of any valuable article or thing. Admittedly these F.D.Rs. were not money bullion, jewellery. The Hon'ble Gujrat High Court in the case of Bhagwandas Narayan Das (supra) had held as under:
"...Therefore, by using the words "valuable article or thing", what the legislature intended to imply is that the assets covered by these words should be such as could be covered in to cash so that the tax liability of the assessees concerned, as revealed from his undisclosed income, could be duly satisfied. In other words, the thing or article which can be retained under Section 132(5) should be one which is carrying its own intrinsic value in terms of money. A document of title relating to an immovable property or even a fixed deposit receipt issued by a bank does not possess any intrinsic market value. They can neither be negotiated nor be transferred for valuables consideration. Thus, they are not covered by Section 132(5) of Act or Rule 112 of the Rules."
The decision of the Hon'ble Madras High Court in the case of Devarajan and Ors. v. Tamil Nadu Farmers Service Cooperative Federation and Ors., 131 I.T.R. 506 relied upon by the learned D.R. and also by the learned C.I.T. (A), in our opinion does not much help the department in that case, the point involved was of attachment and in the said order it was held that F.D.Rs. could be attached trough the Bank to whom the F.D.Rs. pertained. In that case too, Hon'ble Madras High Court had held that the fixed deposit receipt itself is not negotiable instrument and has no value as these deposits generally carry a term that they are not transferable. The fixed deposit receipts cannot as such be assigned without the concurrence of the Bank, thought he receipts by itself cannot be said to be an asset. So in this way although ever that subsequent order of the Hon'ble Madras High Court also goes to support the case of the assessees that these fixed deposit receipts were not valuable assets found from the possession of the assessee. Hence, we are of the opinion that mere recovery of these F.D.Rs. From the locker of the assessee standing in the name of minors by itself was not the recovery of valuable assets which could de covered by explanation (5) of Section 271(1)(c). We therefore, hold that this argument of the learned counsel for the assessee has force. Any how, this is not the only ground on the basis of which the said F.D.Rs. had been included in the income of the assessee, the other ground taken up by the department is that assessee himself and filed the revised return admitting the F.D.Rs. To be his income, which others wise has not shown by him in his earlier return. This fact leads as to the alternative plea taken up by the learned counsel for the assessee. The learned counsel for the assessee in the alternative plea has stressed that even this admission in the subsequent return also does not much go against the assessee. For that he has relied to the decision of the Hon'ble Supreme Court reported in 168 ITR 705. In the said case, the Hon'ble Supreme Court had remarked that from the assessee agreeing to additions to him income. IT does not follow that the amount in the revised return by it self does not prove concealment of the income. No doubt, it is a strong force against the assessee, yet all the surrounding circumstances has also be taken to arrives at a conclusion as to whether this amounted to concealment of income and there by whether it is attracted the provisions of penalty Under Section 271(1)(c) are not here in this case the assesses has tried to explain the said F.D.Rs. By giving a statement that they belong to his minor sons. The assessee has also filed copies of assessment orders showing that a theses minor were duly assessed by the department may be under the amnesty scheme. The income was shown from gifts and for a want of evidence the amounts were surrendered to the Department for taxation. Even in the subsequent year the department had assessed the interest of theses F.D.Rs. in the hands of those minors Under Section 143(3) (copy of the assessment order filed in the compilation) the assesses even at the times of search and seizure had disclosed the said fact that the F.D.Rs. Are lying in the locker and they stood in the names of minor sons, which already stands disclosed to the department in the return filed by the minor. Government/C.B.T.D. Had given a concession to assesses to file returns of incomes which will be accepted without any enquiry and the assessee will not be required to give the details of their income. This is a special concession gives by the law and the department is bound by these concessions. In view of these concessions if the minors of the assesses had surrendered certain gifts I the form of incomes and duly assessed as such and purchased F.D.Rs. Now that income cannot be question ed in the hands of the minors. Once that income cannot be questioned in the hand of minors, then we do not understands as to how the said income can now be questioned in the hands of the assessees. No doubt, the assessee after the order passed Under Section 132(12) surrendered the said amount as his income in the revised return, but mere surrender can be for hundred and one reasons. In view of Hon'ble Supreme Court's decision in the case reported in 168 I.T.R. 705 the mere fact of surrender cannot go to prove a the concealment of income by the assesses. That surrender may be taken into consideration while computing the income of the persons surrendering the income, but is not sufficient to prove the concealment of income the department has to prove certain other facts as well as to prove the concealment. The Hon'ble Punjab & Haryana High Court in the case of Gumani Ram Siri Ram v. C.I.T. Punjab, 85 ITR 67 held that on the facts and in the circumstances of the case penalty Under Section 271(1)(c) could not be levied merely because certain deposits were surrendered by the assesses, unless there was material of the record to show that the surrendered item was his income. Here in this case there is no iota of evidence to prove that there F.D.Rs. We re the concealed income of the assessee except his own surrender in the revised return. On other hand, there is ample evidence on record filed by the assessee to proves that alleged F.D.Rs. were the income of minors receipts by them by gifts and duly surrendered by them during the search and accepted by the department and the interest income on these F.D.Rs. have been even subsequently in the subsequent year after the search had been assessed in the hands of the minors treading the said income as that of minors Under Section 143(3) which implies the conscious application of mind by the department to the assessment. Over and above all these, there is no finding either by the Assessing Officer or by the learned C.I.T. (A) that the explanation given by the assessee was false. There is only mention that explanation was not acceptable to the department was sufficient to include the said account in the name of the assesses but in our opinion, was not sufficient to attract the provisions of penalty. This opinion of ours find support in decisions of the Tribunal reported in 198 ITR 176 in the case of Ram Chand Kishan Chawla v. I.T.O. In Which the third member whiles deciding the issue had held as under :-
"There is another important point to be borne in mind viz. The explanation offered by the assessee must be found to be false before the penalty provisions of Section 271(1)(c) as amended with effect from April 1, 1976, are applicable. As I have endeavoured to point out above, the falsity of the explanation was not proved are not even attempted to be proved. I therefore, agree with the view expressed by the learned accountant member that, when the explanation offered by the assessee was not found to false, the difference between the income returned and the income estimated cannot be regarded as concealed income."
Here, in this case there is no positive finding at any stage that the explanation offered was false, while, in our opinion, on the other hands, the explanation offered appears to be more plausible and more true at least for the purpose of penalty provisions. As the assessee had surrendered the amount in its revised return, the department was justified in facts of the case did not give rise to penalty Under Section 271(1)(c). The surrendering of the amount stood covered by the decisions of the Hon'ble Supreme Court which provide that surrender can be because of a hundred and one reasons but the mere surrender des not go to prove the concealment of income. In fact, as the circumstances stand if the assessee would not have surrendered the amount, it might have been difficult by the department to add the said income in the hands of the assessee because of the over-whelming evidence filed by the assessee to prove that the alleged income stood in the name of minor by filing the return under amnesty scheme, before the search and seizure. Anyhow, we are not expected to give our finding on the point of quantum included in the assessment, but we do feel that the circumstances of the case was not sufficient to prove the conscious concealment of the income by the assessee. We, therefore, hold that the penalty imposed and sustained by the learned C.I.T. (A) was not justified in the facts of law. We,. Accordingly, set aside the said order and cancel the penalty imposed."
5. Heard Sri R.K. Upadhaya learned Standing Counsel and Sri Shakeel Ahmad, learned counsel for the respondent-assessee.
6. Learned Standing Counsel submitted that the Tribunal has illegally quashed the penalty. He submitted that at the time of search 4 FDR's were found in the name of minor valuing Rs. 3.45 lacs. When it was found that the minor had no source of income, direction was issued by the Commissioner on Income-tax (Appeals) in the order under Section 132(12) of the Act to treat the FDR's belonging to the assessee, then revised return was filed disclosing the amount of Rs. 3.45 lacs as income in the return. He submitted that the surrender was not voluntary and when the assessee was caught he had no option except to surrender the said amount, which he has done and therefore, it is the case of concealment of income within the purview of Section 271(1)(c) of the Act. Learned counsel for the assessee relied upon the order of the Tribunal and submitted that the Tribunal on the facts and circumstances has accepted the Explanation of the assessee and held that there was no case of concealment According to him finding of the Tribunal is finding of fact.
7. Having heard learned for the parties we have perused the order of Tribunal and the authorities below. We do not find any error in the order of Tribunal. Section 271(1)(c) reads as follows:
Section 271- failure to furnish returns, comply with notice, concealment of income, etc. (1) - If the Income of the Commissioner (Appeals) in the course of any proceedings under the Act is satisfied that any person-
(C) has concealed the particulars of his income or furnished inaccurate particulars of such income, "Explanation 5 : Where in the course of a search under Section 132, the assessee in found to be the owner of any money, bullion, jewellery of other valuable article or thing (hereinafter in this Explanation referred to assets) and the assessee claims that such assets have been acquired by him by utilizing (wholly or in part) his income-
(a) for any previous year which has ended before the date of the search, but the return of income for such year has not been furnished before the said date or, where such return has been furnished before the said date, such income has not been declared therein: or
(b) for any previous year which is to end on or after the date of the search, then, notwithstanding that such income in declared by him in any return of income furnished on or after the date of the search, he shall, for the purposes of imposition of a penalty under Clause (c) of Sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income, unless (1) such income is, or the transactions resulting in such income are recorded-
(i) in a case falling under Clause (a), before the date of the search; and
(ii) in a case falling under Clause (b), on or before such date, in the books of account, if any maintained by him for any source of income or such income is otherwise disclosed to the Chief Commissioner of Commissioner before the said date: or (2) he, in the course of the search, makes a statement under Sub-section (4) of Section 132 that any money, bullion, jewellery or other valuable article or thing found in his possession or under his control, has been acquired out of his income which has not been disclosed so far in his possession or under his control, has been acquired out of his income which has not been disclosed so far in is return of income to be furnished before the expiry of time specified in the statement the manner in which such income has been derived and pays the tax, together with interest, if any, in respect of such income."
8. In the present case, Explanation 5 of Section 271(1)(c) of the Act is not applicable Explanation 5 is applicable to the money, bullion, jewellery or other valuable article or thing. The FDR's does not fall within the purview of the aforesaid items and therefore, the amount of FDR's can not be treated as deemed concealed income in view of Explanation 5 of Section 271(1)(c) of the Act. Now the question for consideration is whether on the facts and circumstances of the case the amount of Rs 3.45 lack which was value of 4 FDR's in the name of four minor children which was surrendered by the assessee in its return can be said to be concealed income of the assessee. Tribunal held that these minor were assessed to tax under the amnesty scheme. Perusal of the statement of Sri. M.L. Sharma recorded on 18.08.1988 at the time of opening of the locker also shows that he has categorically stated that the 4 FDR's have been disclosed in income tax/wealth tax. Therefore, the observation of the Tribunal can not be held to be unjustified that if FDR's would have not been surrendered in the income by the assessee it may not be liable to tax in the hands of the assessee being disclosed by the minor in the amnesty scheme. It appears that when in the proceedings under Section 132(12), which was summary proceeding. CIT has issued the direction to treat the FDR's belonging to the assessee, assessee in order to buy peace surrendered the amount of FDR's as income in a revised return. Totality of the circumstances shows that the assessee right from the beginning contended that the FDR's belongs to the minors and have been disclosed in income tax/wealth tax. It was also found as a fact that these FDR's have been disclosed by the minors in their assessment proceedings under the amnesty scheme. Therefore, merely because the assessee surrendered the amount in the return, it can not be said to be concealed income of the assessee. Finding of the Tribunal in this regard in finding of fact and there appears to be no reason to interfere with such findings which is based on the material on record.
9. In the case of Sri Shadilal Sugar and General Mills Ltd. And Anr. v. CIT, Delhi, reported in 169 ITR 705 while dealing with the provisions of Section 271(1)(c) of the Act, Apex court held that, from the assessee agreeing to addition to his income, it does not follow that the amount agreed to be added was concealed income. There may be hundred and one reasons for such admission. Apex court further held that the assessee had only accepted certain amount as taxable, it has not been accepted by the assessee that it had deliberately furnished inaccurate particulars or concealed any income. Apex court had upheld that order of the Tribunal deleting the penalty, which was based on material on record.
10. The Apex Court in the case of K.C. Builders and Anr. v. The Assistant Commissioner of Income Tax, JT 2004 (2) SC 100 has held as follows:
"One of the amendments made to the above mentioned provisions is the omission of the word "deliberately" from the expression "deliberately furnished inaccurate particulars of which income". It is implicit in the word "concealed" that there has been a deliberate Act on the part of the assessee. The meaning of the word "concealment" as found in Short Oxford English Dictionary, 3rd Edition, Volume 1, is as follows.
In law, the international suppression of truth of fact known, to the injury of prejudice of another."
The word "concealment" inherently carries with it the element of mens rea. Therefore, the mere fact that some figure or some particulars have been disclosed by itself, even it takes out the case from the purview of non-disclosure, it cannot be itself take out the case from the purview of furnishing inaccurate particulars. Mere omission from the return of an item of receipt does neither amount to concealment nor deliberate furnishing of inaccurate particulars of income unless and until there is some evidence to show or some circumstances found form which it can be gather that the omission was attributable to an intention or desire on the part of the assessee to hide or conceal the income so as to avoid the imposition of tax thereon. In order that a penalty under Section 271(1)(c) may be imposed, it has to be proved that the assessee has inaccurate particulars of his income. Where the additions made in the assessment order, on the basis of which penalty for concealment was levied, are deleted, there remains no basis at all for levying the penalty for concealment and therefore, in such a case no such penalty can survive and the same is liable to be cancelled as in the instant case. Ordinarily, penalty cannot stand if the assessment itself is set aside. Where an order of assessment of reassessment on the basis of which penalty had been levied on the assessee has itself been finally set aside or cancelled by the Tribunal or otherwise, the penalty cannot stand by itself and the same is liable to be cancelled as in the instant case ordered by the Tribunal and later cancellation of penalty by the authorities."
11. In view of the law laid down by the Apex Court as stated above and facts and circumstances of the present case, we do not find any error in the order of Tribunal, which is accordingly upheld.
12. For the reasons stated above, we answer the question referred to us in affirmative, i.e. in favour of the assessee and against the Revenue.