ADARSH KUMAR GOEL, J. - (1.) THIS appeal has been preferred by the Revenue under S. 260A of the IT Act, 1961 (for short, "the Act") against the order of the Tribunal, New Delhi dt. 31st July, 2009 in ITA No. 1868/Del/2007 for the asst. yr. 2003-04 claiming following substantial questions of law : "1. Whether on the facts and circumstances of the case and in law, the Hon'ble Tribunal was right in deleting the penalty imposed under S. 271(1)(c) without appreciating that the act of disclosing the concealed income was not voluntary but consequent upon the survey operation under S. 133A of the IT Act, 1961 wherein several fallacies and discrepancies were detected and as a result thereof the assessee revised his IT Return and surrendered the amount of Rs. 15,00,000 ? 2. Whether on the facts and circumstances of the case and in law, the Hon'ble Tribunal was right in deleting the penalty imposed under S. 271(1)(c) without appreciating that disclosure of concealed income was consequent upon the survey operation when during the course of survey operation itself, the assessee surrendered a sum of Rs. 15,00,000 for this assessment year thereby admitting to concealment of income ?"
(2.) THE assessee is a coaching centre. During the course of survey, the assessee surrendered additional income and also filed revised return accordingly. The AO accepted the revised return made by the assessee but also initiated penalty proceedings. Thereafter, penalty was also levied on the assessee which was upheld by the CIT(A) following judgment of the Madras High Court in P. Govindaswamy vs. CIT (2000) 244 ITR 510 (Mad). Therein, it was held that since under S. 58 of the Evidence Act, 1872, admitted facts need not be proved, once the assessee made surrender, it could be taken to be admitted that the assessee had concealed income. On appeal, the Tribunal set aside the above view as follows : "5. .....From the record, we found that addition of Rs. 15 Lakhs was made only on the basis of surrender made during the course of survey and by accepting the revised return filed by the assessee. In the assessment order, the AO has not pointed out even a single defect either in the books of account or vouchers etc. maintained by the assessee or in the system of accounting being followed for disclosing true and correct income. Not only the survey team but during the course of assessment the AO has all the materials before him to find out if there are any discrepancies which can be co-related to the amount of surrender made by the assessee. However, the AO has not uttered a single word in the assessment order to say that there was any concealment of income of assessee having noticed by the survey team or by the AO himself. The offer of additional income of Rs. 15 Lakhs was made to buy peace at the time of survey in order to avoid the harassment at the hands of the survey team. Even after surrender, all kinds of enquiries were made by the survey team as well as by the AO while framing assessment on the basis of seized documents, books of account, vouchers etc. maintained by the assessee, and after thorough enquiry, the income of the business was accepted at original return income along with the additional income offered by the assessee. The AO has imposed the penalty considering the additional income as income from undisclosed sources and has alleged the assessee has filed revised return only after detection of concealed income during the course of survey. In case there was any detection of concealed income either by the survey team or by the AO, why the same has not been pointed out in the assessment order. Not an iota of evidence was narrated to support the addition made except the surrender made by the assessee himself. When no concealment was ever detected by the survey team or by the AO, no penalty was impossible. Recently, Hon'ble Punjab and Haryana High Court in the case of Siddharth Enterprises vide order dt. 14th July, 2009 held after considering the decision of Hon'ble Supreme Court in the case of Union of India and Ors. vs. Dharamendra Textile Processors and Ors. (2008) 219 CTR (SC) 617 : (2008) 14 DTR (SC) 114 : (2008) 306 ITR (SC) 277 that the judgment of Hon'ble Supreme Court in the case of Dharmendra Textiles (supra) cannot be read as laying down that in every case where particulars of income are inaccurate, penalty must follow. Wheat has been laid down is that qualitative difference between criminal liability under S. 276C and penalty under S. 271(1)(c) had to be kept in mind and approach adopted to the trial of a criminal case need not be adopted while considering the levy of penalty. Even so, concept of penalty has not undergone change by virtue of the said judgment. It was categorically observed that penalty is imposed only when there is some element of deliberate default and not a mere mistake. This being the position, the furnishing of inaccurate particulars was simply a mistake and not a deliberate attempt to evade tax. Hon'ble Supreme Court in the case of CIT vs. Suresh Chandra Mittal (2001) 170 CTR (SC) 182 : (2001) 251 ITR 9 (SC) observed that where assessee has filed revised return showing higher income and the assessee has surrendered the income after persistence queries by the AO and where revised return has been regularized by the Revenue, explanation of the assessee that he has declared additional income to buy peach of mind and to come out of waxed litigation could be treated as bona fide, accordingly levy of penalty under S. 271(1)(c) was held to be not justified. In the instant case before us, as per the surrender made by the assessee, a revised return was filed and which has been accepted as it is without making any alteration therein nor there was any adverse observation in the assessment order with regard to any discrepancies to correlate the same with the amount of surrender. We accordingly do not find any merit in the action of the lower authorities for imposing penalty under s. 271(1)(c). On the facts and circumstances, the instant case is not a fit case for levy of penalty." We have heard learned counsel for the appellant.
(3.) LEARNED counsel for the appellant submits that concealment was rightly inferred and penalty was justified.;