ORDER
D.T. Garasia, J.M.
1. All these four appeals are filed by the assessee against the order dt. 6th Feb., 1997 and 7th Feb., 1997 passed by the CIT(A)-II, Surat, for the asst. yr. 1985-86. All these appeals involve a common ground of penalty under Sections 271(1)(c) & 271(1)(b) of the IT Act hence the appeals are disposed of in a consolidated order.
2. All the assessees had initially filed returns declaring a loss. Thereafter, the assessees filed revised return disclosing the income and claimed benefit of Amnesty Scheme which was then brought into effect by circular issued by CBDT. The AO did not allow the benefit of Amnesty Scheme by holding that the filing of the revised return was after search conducted at the premises of M/s Shroff. The assessees have not filed the revised return suo motu, therefore, the ITO has imposed the penalty under Sections 271(1)(c) and 273(1)(b) for concealment of the income and not paid the advance taxes.
3. The CIT(A) has confirmed the order of the AO. Therefore, being aggrieved by this order, assessees are in appeal before us.
4. The learned counsel submitted that the assessees are as individuals and partners in the firm of M/s Patel Brothers. Smt. Chandrikaben and her husband Sharadbhai Patel had in beginning of the year 1985 a sum of Rs. 1,50,000 kept with them. In the month of September, 1985 with this money they purchased three drafts each of Rs. 50,000 in favour of each of their children. During that time, Amnesty Scheme was enforced. The assessees named Chandrikaben and her husband Sharadbhai Patel have declared their income of Rs. 75,000 each of them. At the relevant time, Chandrikaben and Sharadbhai have complied with all the requirements of the Scheme and they filed the revised return without being questioned or asked or search paid the taxes due as per the return of income and also made the full disclosure thereof and filed the petition under Section 273A for waiver of interest and penalty.
5. The learned counsel further submitted that the ITO has not proved the concealment by any evidence. The ITO has merely refused the immunity under the Amnesty Scheme it does not prove the concealment. The assessees are individuals and partners in firm of Harihar Quarry. The assessee had no other source of income in that year. The assessee filed his return of income in original in the prescribed limit and the same was assessed and there was no concealment found at that time. The learned counsel submitted that at no point of time, there was either search action or any inquiry either against the assessees or against the firm in which the assessees are interested. During the previous year relevant to asst. yr. 1985-86, the children of the assessees kept the foreign currency and the assessees with a view to get the mental peace declared the 50 per cent of the gift so received by their children as their income and filed the revised return under Amnesty Scheme as per Circular No. 451. The learned counsel further submitted that the assessees had voluntarily filed the revised return and made full disclosure of their income and full taxes thereon paid within the time-limit prescribed. The learned counsel submitted the return filed by the assessees were accepted in total and there was no variation in the income assessed by the ITO nor there was either any inquiry or findings adverse to the return filed so. The learned counsel has filed the copy of the judgment of CIT v. Labhubhai Bhimjibhai Patel (IT Appeal No. 260/1998) wherein the Hon’ble High Court has, in similar facts of this case, deleted the penalty. The learned counsel submitted that the Hon’ble High Court has granted the benefit of Amnesty Scheme on the similar facts.
6. Considering the facts and circumstances of the case, we are of the considered view that the assessees had initially filed a return declaring a loss and after the search conducted at the premises of M/s Shroff the assessees filed the revised return disclosing the income and seeking the benefit under the Amnesty Scheme which was brought into effect by the circular issued by the CBDT. We are of the view that the AO has not allowed the benefit of Amnesty Scheme by holding that the filing of revised return after a survey was conducted and it was not voluntary and suo motu filed the revised return and imposed the penalty. We are of the view that in the similar facts in case of Labhubhai Bhimjibhai v. CIT in ITA No. 260/1998, the Hon’ble Gujarat High Court has held that all the assessees who have initially filed the return declaring a loss and after the survey conducted filed a revised return disclosing the income and claimed the benefit of Amnesty Scheme which was then brought into effect by a circular issued by the CBDT. The AO and the CIT(A) did not allow the benefit of Amnesty Scheme, but in the Tribunal the benefit of Amnesty Scheme was allowed and the Hon’ble High Court has confirmed the order of Tribunal. So, we respectfully following the same and we are of the view that facts of this case are similar and identical, therefore, we delete the penalty. Moreover, in the instant case, there was no allegation that the disclosure made by the assessees in the return of income was not full and true. There was no finding that disclosure was not made in good
faith during the course of search operation made in the premises of M/s Shroff. Nothing incriminating was found against the assessees, therefore, we are of the view that the ITO was not justified in giving rise to the presumption that the assessees have filed the revised return after the search conducted at the premises of M/s Shroff.
7. Looking to the facts of the case, we are of the view that the CIT(A) was not justified in imposing the penalty. Therefore, we set aside the order of the CIT( A).
8. In the result, we set aside the impugned order of penalty and appeals are allowed.