s.k. keshote, j. - (1.) : This is an income-tax appeal under s. 260A of the Income-tax Act, 1961 (for short, `the Act, 1961') and is directed against the order dt. 31st Oct., 2001 of the learned Income-tax Appellate Tribunal, Jaipur Bench, Jaipur (for short, `the Tribunal') in IT Appeal No. 2143/JP/1992 for the asst. yr. 1985-86 titling Man Mohan Gupta vs. Asstt. CIT, Circle I (1), Jaipur. The appeal was placed on the board for preliminary hearing on 4th July, 2002. The Court was pleased to admit the appeal in terms of the following question: "Whether, on the facts and in the circumstances of the case, the statutory provisions of s. 271(1) (c) as existing during the relevant year were correctly applied by learned Tribunal in arriving at the findings and upholding the penalty in relation to trade advances of Rs. 3,20,000 received from various traders, against supply of goods and in pursuance of which goods were duly supplied to them?"
(2.) BRIEFLY stated the facts of the case are that the assessee is an individual engaged in trading in precious and semi-precious stones under a proprietorship of M/s Asian Arts, Jaipur. The return was filed by the Revenue showing the income of Rs. 56,453, on 28th of March, 1988 which was revised on 29th of March, 1988 and 28th of March, 1989. In the second revised return filed on 28th of March, 1989 the assessee has added the income advanced against sales amounting to Rs. 4,20,000. The Asstt. CIT, Investigation (Circle-I), Jaipur, made assessment of the assessee at income of Rs. 7,76,600. On the first appeal the CIT(A), Rajasthan-I, Jaipur deleted the addition of Rs. 91,407 and further set aside the part of other addition. The setting aside of the assessment was made on 2nd of April, 1991 and the income was finally determined at Rs. 6,45,518 as against Rs. 6,41,740 disclosed by the assessee in the second revised return. The penalty proceedings were initiated against the assessee under s. 271(1)(c) of the Act, 1961 and after rejecting the assessee's explanation, the AO held that he has made wrong claim of certain expenses and non-genuine entries of cash credits were found in the books of accounts of the assessee and, accordingly, he considered the amounts referred represented income/or the income in respect of which wrong particulars were furnished by the assessee. It is further held by the AO that the assessee had concealed the income and furnished wrong particulars of income deliberately with regard to the income of Rs. 5,06,782, and thus the levy of penalty under s. 271 (1)(c) is attracted and, accordingly, a penalty of Rs. 3,13,562 was levied vide order dt. 17th Sept., 1991. The assessee carried the matter in first appeal before the CIT(A), Rajasthan-I Jaipur. The appellate authority held that in view of the persistent enquiries made by the AO, the charge of concealment is established in respect of foreign tour expenses, cash credits, interest on credits and brokerage and, accordingly, he confirmed the penalty levied by the AO excluding the amount of interest relating to loans taken for investment made in purchase of property of Rs. 40,883 as according to him on this amount alone the charge of concealment of income is not established. The assessee has taken the matter in further appeal before the Tribunal. The appeal was partly allowed by the Tribunal under its order dt. 31st Oct., 2001 and thus this appeal before us. The learned Tribunal held that the explanation furnished by the assessee of receipt of the amount of Rs. 1,00,000 as deposited from M/s Amit Enterprises, proprietor Shri Sudhir Kumar, Rs. 50,000, Shri Om Prakash Ghiya Rs. 25,000 and Shri Kamal Kumar Kasliwal Rs. 25,000, is bona fide and thus no penalty is leviable on this count. Shri T.C. Jain, the learned counsel for the appellant, submitted that Rs. 3,20,000 has been taken as advance against sale of goods from the four parties named in para No. 10 of the order of the learned Tribunal. The goods has been sold to these parties in the subsequent asst. yr. 1986-87, the details of which are given in para No. 10 of the judgment of the learned Tribunal. In his submission the purchasers are duly registered under the Rajasthan Sales-tax and they provided declaration 31 17 and, therefore, no sales-tax was charged. Sales-tax registration number is duly mentioned. It is urged that confirmation of letters duly signed by the proprietor with addresses were submitted. The sales were made through brokers. In the parties bank account the relevant cheques were duly found recorded. In his submission the assessee had duly discharged his burden. It has next been contended that on the same material produced by the appellant, the Tribunal accepted his explanation for advance receipts against sale of Rs. 1,00,000. It has further been contended that the provisions of sub-s. 4A of s. 132 of the Act, 1961 comes to the rescue of the assessee and thus by mere production of these facts produced by the assessee the burden which was on him stands discharged. In his submission the learned Tribunal has not considered the case of the assessee with reference to the said proviso. In support of his contention the learned counsel for the assessee placed reliance on the following decisions : 1. CIT vs. Suresh Chandra Mittal (2000) 158 CTR (MP) 26 : (2000) 241 ITR 124 (MP) 2. CIT vs. Suresh Chandra Mittal (2001) 170 CTR (SC) 182 : (2001) 251 ITR 9 (SC) 3. Shiv Lal Tak vs. CIT (2001) 166 CTR (Raj) 534 : (2001) 251 ITR 373 (Raj) 4. Dy. CIT vs. Rohini Builders (2003) 182 CTR (Guj) 373 : (2002) 256 ITR 360 (Guj).
(3.) SHRI J.K. Singhi, appearing for the Revenue, per contra supported the order of the learned Tribunal. He placed reliance in support of his contentions on the following decisions : 1. Badri Prasad Om Prakash vs. CIT (1986) 54 CTR (Raj) 339 : (1987) 163 ITR 440 (Raj) 2. CIT vs. Korlay Co. Ltd. (1998) 232 ITR 821 (Cal). It is not in dispute that these revised returns have been filed by the assessee after the search has been conducted at his business place by the It Department. In the appeal, though, it is not disclosed but in para No. 2 it is mentioned that the appellant in order to avoid litigation and to buy peace included these amounts in the revised return. The last revised return filed had a specific note that additions are made in pursuance to petition under s. 273A of It Act which was filed for waiver of interest and penalty. We have carefully considered the rival submissions made by the learned counsel for the parties and perused the entire material available on the record and the orders passed by all the three authorities; the AO, the CIt(A) and the learned Tribunal. ;