Thursday, November 7, 2013

Voluntary disclosures don’t absolve one from concealment penalty; plea as to ‘buy peace’ is irrelevant

Voluntary disclosure does not lead to assessee being free from mischief of penal proceedings under section 271(1)(c)
The Supreme Court held as under:

1) Explanation to section 271(1) raises a presumption of concealment, when a difference is noticed by the Assessing Officer, between reported and assessed income. The burden then shift on the assessee to show otherwise, by cogent and reliable evidence;

2) When the initial onus placed by the Explanation, has been discharged by assessee, the onus shifts on the revenue to show that the amount in question constituted the income and not otherwise;

3) The Assessing Officer shall not be carried away by the plea of the assessee like ‘voluntary disclosure’, ‘buy peace’, ‘avoid litigation’, ‘amicable settlement’, etc., to explain its conduct;

4) Assessee had only stated that he had surrendered the additional sum with a view to avoid litigation, buy peace and to channelize the energy and resources towards productive work and to make amicable settlement with the income-tax department. Statute does not recognize those types of defences under the Explanation 1 to section 271(1)(c);

5) It is trite law that the voluntary disclosure does not free the assessee from the mischief of penal proceedings under section 271(1)(c). The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he has to be absolved from penalty;

6) The surrender of income in this case was not voluntary in the sense that the offer of surrender was made in view of detection made by the Assessing Officer in the search conducted in the sister concern of the assessee;

7) The Assessing Officer had to satisfy whether the penalty proceedings were initiated or not during the course of the assessment proceedings and the Assessing Officer was not required to record his satisfaction in a particular manner or reduce it into writing. Thus, there was no illegality in action of department in initiating penalty proceedings - MAK Data (P.) Ltd. v. CIT (2013) 38 448 (SC)

SC: Petitioner is stool pigeon of business houses anxious to remove SEBI’s Chairman; writ for his removal dismissed

Writ seeking removal of Mr. UK Sinha from the post of Chairman of SEBI dismissed
The Supreme Court held as under:

1) It couldn’t be said that deputation of Mr. UK Sinha (Mr. Sinha) as a Chairman of SEBI under rule 6(2)(ii) was approved in colourable exercise of power as he was on deputation with UTI AMC since the year 2005 and was in no way responsible for being set on deputation initially under rule 6(2)(iii) and subsequently under rule 6(2)(i);

2) He had no role to play in the grant of approval of deputation, once he had fully disclosed that he had been working as Joint Secretary, Banking;

3) UTI AMC was not a ‘Government company’ under section 617 of the Companies Act and it was for the shareholder to decide what process to follow and whom to appoint;

4) As per the consolidated guidelines, the deputation of Mr. Sinha was covered under rule 6(1)(i) of the IAS Cadre Rules and his recommendation and appointment were not vitiated by mala fide exercise of powers. The search-cum-selection committee, after scrutinizing qualification and experience of the short-listed candidates, unanimously placed his name on top of merit list;

5) He had no role to play in the whole procedure except for accepting the invitation of the search-cum-selection committee for interaction. His appointment was strictly in conformity with the procedure prescribed by service rules, i.e., rules 16 and 26 of the AIS (DCRB) Rules, 1958;

6) The petitioner had not placed on record any material to establish that any conspiracy was hatched to ensure the selection of Mr. Sinha. He had unjustifiably attacked the integrity of the entire selection process. He did not satisfy the test of utmost good faith which was required to maintain public interest litigation;

7) This was not a petition to protect the Fundamental Rights of any class of down trodden or deprived section of the population. It was more for the protection of the vested interests of some unidentified business lobbies;

8) The petitioner was a stool pigeon acting on the directions of the business houses like Sahara and Reliance. It is a well known fact that in recent times, SEBI has been active in pursuing a number of cause célèbre against some very powerful business houses;

9) Therefore, the anxiety of these business houses for the removal of the present Chairman of SEBI was not wholly unimaginable. There was no merit in this petition which was, accordingly, to be dismissed - Arun Kumar Agrawal v. Union of India [2013] 38 300 (SC)