JAWAHAR LAL GUPTA, J. - (1.) THIS is a petition under S. 256(2) of the IT Act, 1961 (hereinafter referred as the 'Act'). For the asst. yr. 1987-88, the assessee filed its return and declared an income of Rs. 44,080. Subsequently, a survey was conducted at the business premises of the assessee. A revised return was filed by the assessee on 29th Sept., 1988, declaring a total income of Rs. 1,89,580. On 23rd Jan., 1989, the assessment was completed under S. 143(3) of the Act. The taxable income was fixed at Rs. 1,91,500. Simultaneously, the AO had initiated proceedings for imposition of penalty. Vide order dt. 6th March, 1991, a penalty of Rs. 70,000 was imposed. Aggrieved by the order, the assessee filed an appeal. It was dismissed by the CIT(A) vide order dt. 7th Jan., 1992. However, on second appeal, the Tribunal reversed the order. The Revenue filed an application under S. 256(1) of the Act. The said application having been dismissed, the Revenue has filed the present petition under S. 256(2) of the Act. The Revenue contends that the following question of law arises for the opinion of this Court: "Whether, on the facts and in the circumstances of the case, the Hon'ble Tribunal is justified in law in cancelling the penalty levied under S. 271(1)(c) Rs. 70,000 duly sustained by the CIT(A) without appreciating the fact that the filing of revised return itself as a result of survey on assessee's premises which is tantamount to admission of concealment on the part of the assessee?"
(2.) LEARNED counsels for the parties have been heard. Mr. R.P. Sawhney, the learned counsel for the Revenue, relying upon the decision in Mahavir Metal Works vs. CIT (1973) 92 ITR 513 (P&H) : TC 50R.618, contends that the revised return having been filed after the survey, the Court should presume that there was concealment.
(3.) THE claim made on behalf of the Revenue has been controverted by Mr. Sanjay Bansal, learned counsel for the respondent. He has referred to the decisions in CIT vs. V. Narashima Prasad (2001) 250 ITR 852 (Kar) and CIT vs. Suresh Chandra Mittal (2001) 170 CTR (SC) 182 : (2001) 251 ITR 9 (SC).;