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10. Similarly for the subsequent assessment years also, the Tribunal found that the assessee had made excess claim of interest. In regard to the excess claim made on the basis of misunderstanding of the decree, the Tribunal deleted the penalty. However, in respect of the wrong claim made by the assessee, the penalty @ 100% has been confirmed.

11. It would be better to refer the findings recorded by the Tribunal which are as follows:-

We have given our careful consideration to the rival contentions. In this case, assessee had filed the original returns for the assessment years 1983-84 to 1987-88 claiming interest on the outstandings of Rs. 52,07,873/- notwithstanding a compromise decree passed on 30th April, 1982 as a result of which, the liability of the assessee had been reduced to Rs. 42,45,277/- with a scope for further reduction to theextent of Rs. 2,85,477/- It is a matter of record that the assessee had not disclosed the fact of having reached to a settlement with Citi Bank either in the books of accounts or in the statement of accounts filed alongwith the returns. Nor was the copy of the decree provided to the Assessing Officer. During the course of assessment proceedings for the assessment years 1983-84, 1984-85 and 1985-86, through there was a search on 30th March, 1984 at the premises of the assessee, there is no evidence on record that the fact of compromise decree had come to the knowledge of the Assessing Officer. We may hasten to add that even if the compromise decree would have been available in the records of the assessee at the time of search, the fact remains that assessee did not disclose to the Assessing Officer that terms of the compromise and the decree passed by the Court in respect of the Citi Bank loan. Assessee had claimed before the CIT (A) that a note had been appended in the return of income for assessment year 1983-84 giving the particulars of the decree but we find that such a lnote was given only in the return filed in pursuance to notice under Section 148 and not alongwith the original return. We have also found that assessee during the course of assessment proceedings for assessment year 1986-87 did furnish a copy of the compromise decree and also revised the return and offered the excess claim but for the interest amount of the outstanding decreetal amount, to tax. Assessment for assessment year 1986-87 has been made by the Assessing Officer on the basis of the revised return.Similar is the position for assessment year 1987-88. Assessee had revised the return for that year too and given up the claim of interest in respect of the sum of Rs. 52,07,873/-. The claim of interest on theentire outstandings out of the decreetal amount of Rs. 42,45,477/-was however persisted. The return for assessment year 1989-90 was filed on 31 st-October, 1989. Whereas the revised return for assessment year 1986-87 was filed on 13th May, 1988, it is mentioned in the assessment order for assessment year 1986-87 that assessee had given reasons for revising the return and that a copy of the consent decree was also enclosed. The reasons given in the revised return are reproduced here under:

For the assessment year 1983-84, though there was a compromise between the assessee and the Citi Bank as a result of which, the liability of the assessee got reduced by a sum of Rs. 10,22,770/-, assessee did not offer this amount to tax under Section 41 of the Act. Not only this, the assessee provided interest in respect of the entire amount of Rs. 52,07,873/- and claimed it as a deduction. No satisfactory explanation has beengiven for this omission in the original return of income. The explanation of the assessee is that the decree was subject to certain condition and the same would be satisfied only on liquidation of the entire loss. This explanation is not convincing. We have got a copy of the decree and do not find any provision under which the waiver of Rs. 10,22,770/- could get revived under any circumstances. The sum of Rs. 42,45,477/- had been determined as the sum payable by the assessee. Assessee was required tomake payments in a phased manner and in the event of default, the Citi Bank had the option to demand the entire decreetal amount outstanding in lumpsum and interest @ 16%. There was no way the Bank could demand the difference between Rs. 52,07,873/- being the amount outstanding at on 30th April, 1982 as per books of account of the assessee and the amount of Rs. 42,45,477/- the amount determined by the Court as the decreetal amount under any circumstances.

We may point out that though the assessee has cooperated with the Department and has volunteered the information during the course of assessment proceedings for the assessment year 1986-87 yet one cannot undermine the importance of disclosing the income in the original return. The penalty has been imposed for concealment of income in the original return. For the assessment years 1983-84 to 1985-86, assessments had been completed and income had escaped assessment. The disclosure of income by the assessee voluntarily does not necessarily absolve the assessee from imposition of penalty. The imposition of penalty and waiver of penalty under Section 273A are two separate proceeding. Whereas in law penalty is imposable for assessee's failure to disclose the correct income in the return of income and if subsequently assessee voluntarily disclosed the income pays the taxes and cooperates with the Department,, a case might be made out for waiver of the penalty but that is a matter to be considered by the administrative authorities. In penalty proceedings the issue that weight heavily is as to whether assessee had consciously concealed the income or furnished inaccurate particulars of income at the time of filing the original returns. Once a finding is recorded that the assessee had failed to disclose the income in the original assessment consciously, assessee would be liable to penalty notwithstanding the fact that he has later on volunteered the information and cooperated with the Department in getting the amount assessed to tax. His subsequent conduct, as already stated, would be relevant for waiver of penalty. But in so far as the assessee as per out finding had failed to disclose the true income in its original return for the assessment year 1983-84, they are liable to penalty under Section 271(1)(c). We are, therefore, satisfied that the assessee is liable to penalty in respect of Rs. 10,22,770/- for the assessment year 1983-84. We also dod not see any justification for the assessee to have claimed interest in respect of the entire amount of Rs. 52,07,873/-. The said interest was not payable at all in view of the compromise decree. The assessee has itself surrendered the amount of Rs. 7,11,894/- being the excess interest claimed in the original return. No doubt assessee had volunteered the information during the course of assessment proceedings for the assessment year 1986-87 yet as already observed that is not sufficient for absolving the assessee from liability of the penalty. Assessee may commit a bonafide mistake in the original return and may subsequently rectify that mistake by filing a revised return or by giving information to the Assessing Officer relating to such mistake or omission. If the mistake or omission is bonafide, penalty may not be attracted. However, the burden in this regard is upon the assessee to establish that the mistake oromission in the original return was botiafide. Considering the material on record, we are unable to hold that the omission of Rs. 10,22,770/- and a wrong claim of Rs. 7,11,894/- in the original return was for bonafide reasons. In the absence of any satisfactory explanation or material available on record supporting the claim of the assessee, we are of the view that penalty under Section 271(1)(c) is attracted in respect of the above two amounts. There is, however, no justification for sustaining the penalty in respectof Rs. 98,054/- being the interest disallowed by the Assessing Officer on the decreetal amount. Assessee had provided interest on the basis of entire outstandings out of decreetal amount. The Assessing Officer, however, allowed a deduction in respect of defaulted instalments and not on the basis of entire outstandings. There is a basis for doubt, if we go to the comments of the decree passed on 30th April, 1982. Para 1 of the decree provides as under:-

17. Now it has to be examined that whether for the years under consideration, there is some evidence to show or some circumstances found from which it can be gathered that the omission was attributable to an intention or desire on the part of the assessee to hide or or conceal the income so as to avoid the imposition of tax therein. In the assessment years 1983-84, 1984-85 and 1985-86 inspite of the consent decree being passed by First Additional Civil Judge, Agra on 30.4.1982 in Suit No. 293 of 1978 reducing the liability from Rs. 52,07,872.15 to Rs. 42,45,487/-, the assessee, in its books of account, had provided interest in respect of entire outstanding amount of Rs. 52,07,873.15 and also provided for penal interest @ 16% in respect of the decreed amount. There appears to be no reason that when the order was passed by the First Additional Civil Judge, Agra on 30.4.1982 why such an entry was made in the books of account and the claim of higher interest was made, though, it was not legally due. This act of the assessee can not be said to be un intentional or unconscious act. In the returns filed for the assessment years 1983-84, 1984-85 and 1985-86, reference of decree passed by the First Additional Civil Judge, Agra was not made. Even during the course of assessment proceedings, the said decree was not brought to the notice of the Assessing Authority which resulted in the allowance of excess amount of the interest. Thus, though, the decree was in existence before filing of the return and during the course of assessment proceedings still higher interest had been claimed on the entire outstanding amount and the decree has not been brought to the notice of the Assessing Authority, amounts to consciously claiming of the excess interest and furnishing of inaccurate particulars. Subsequent disclosure of the decree and request to include excess interest wrongly claimed at the stage when the Assessing Authority was giving effect of the Appellate order, does not make any difference. It may be a circumstance which leads the assessee to disclose the correct fact and to offer to tax excess amount of interest claimed. Subsequent offer by the assessee to tax the excess interest claimed and allowed and cooperation in the assessment proceeding would not make any difference to the act of the assessee which had already been committed while filing the return by claiming excess deduction of interest and concealing the fact of the decree, though, before filing the return, the decree was in existence. It is not the case of the assessee that the decree was not in its knowledge and it could not be, because entry of penal interest @ 16% was made on the decreed amount but it is surprising that the interest had been provided on the entire outstanding amount of Rs. 52,07,873-15. The explanation of the assessee was that the decree was subject to certain condition and the same would be satisfied only on liquidation of the entire loan is found unconvincing and worthless. The Tribunal has observed that "the decree do not find any provision under which waiver of Rs. 10,22,770/- could get revived under any circumstances. The sum of Rs. 42,45,477/- had been determined as the sum payable by the assessee. Assessee was required to make payments in a phased manner and in the event of default, the Citi Bank had the option to demand the entire decreetal amount outstanding in lumpsum and interest @ 16%. There was no way the Bank ' could demand the difference between Rs. 52,07,873/- being the amount outstanding at on 30th April, 1982 as per books of account of the assessee and the amount of Rs. 42,45,477/- the amount determined by the Court as the decreetal amount under any circumstances." Thus for these three years, we are of theopinion that there was a case of intentional and conscious concealment of income and furnishing of inaccurate particulars of income. In the circumstances, for the assessment years 1983-84, 1984-85 and 1985-86 levy of penalty is upheld.