JUDGMENT Gopalan Nambiyar, C.J. 1. The following questions of law have been directed to be referred by the Tribunal under section 256 (2) of the Income Tax Act, 1961. "1. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal was justified in holding that the provision of section 28 (1) (c) of the old Act corresponding to section 27 (1) (c) of the new Act are attracted in this case. 2. Whether or the facts and in the circumstances of the case, the Hon'ble Tribunal is correct in imposing a penalty although a revised return was filed before the close of the assessment giving out full and complete disclosure of the income? 3. Whether on the facts and in the circumstances of the case the Tribunal was correct in restricting the penalty to 100 per cent of the tax, sought to be avoided?" 2. The assessee is a manufacturer of tea chest fittings from tin plates imported under licence issued under the Kerala Small Scale Industries Scheme. The assessment year, with which we are concerned, is 1961-62, and, for the accounting the year ended on 31st May 1960, the assessee filed a return of income on 30th May 1962 showing the total income as Rs. 23,947. This worked out to a gross profit of 31.7 per cent on a turnover of Rs. 1,04,604. Out of the tin plates purchases of the year ended 31st May 1960, relevant to the assessment year 1961-62, the assessee had deposited 38 tons of tin sheets on 3rd November 1959 with the State Bank of India as security for key loan facilities. The stocks were released by the Bank between 12th March 1960 and 14th May 1960 in three instalments, the last being 24.5 tons released on 14th May 1960. On 26th November 1965 the assessee produced the books of account for the year ended 31st May 1960, and these were examined by the Income Tax Officer. The Officer found there were manipulations in the accounts to a considerable extent, by short crediting sales. The day book and the Ledger were imponded and also the file containing sale bills. By letter dated 9th December 1965 the Income Tax Officer wrote to the assessee about the serious irregularities disclosed and gave an opportunity to the assessee to explain the shortage, and hearing was fixed for 20th December 1965. On that day. The day book and the Ledger were imponded and also the file containing sale bills. By letter dated 9th December 1965 the Income Tax Officer wrote to the assessee about the serious irregularities disclosed and gave an opportunity to the assessee to explain the shortage, and hearing was fixed for 20th December 1965. On that day. the assessee replied to the Officer that the fittings manufactured prior to 14th May 1960, which was for the tin period from 1st June 1959 to 13th May 1960, were out of sheet cuttings taken on loan from Janab v. Ibrahim Kutty and Janab Abdul Azeez of Quilon. The Income Tax Officer issued summonses to these two persons to appear before him with books of account for the relevant year. On 29th December 1965 the assessee wrote to the Officer not to examine the two witnesses and admitting that the stocks declared for the assessment purposes as on 31st May 1960 were at variance wjth the actual stock. The assessee also furnished details of the stock not accounted for in the books of account, amounting to Rs. 24,760. Along with his letter dated 29th December 1965, the assessee also enclosed a revised return showing a total income of Rs. 47,406 inclusive of the unaccounted stock. The assessment was completed by the Officer on 31st December 1965 on a total income of Rs. 56,006. The total income was reduced as a result of the appeals preferred, eventually to Rs. 50,206. 3. On these facts, the Inspecting Assistant Commis?sioner of Income Tax concluded that the assessee had not disclosed in the original return dated 30th May 1962 correct particulars of income and had concealed its income to a substantial extent and levied a penalty of Rs. 20,000 equal to about 120 per cent of the amount of tax sought to be avoided under section 271 (1) (c) of the Income Tax Act, 1961. This was confirmed in appeal by the Income Tax Appellate Tribunal, which reduced the quantum of penalty to Rs. 13,000, amounting to 100 per cent of the tax sought to be avoided. At the instance of the assessee the questions of law quoted earlier have been compelled to be referred by the Tribunal. 4. Section 271 (1) (c) of the Income Tax Act, 1951 reads: "271. Failure to furnish returns, comply with notices, concealment of income, etc. 13,000, amounting to 100 per cent of the tax sought to be avoided. At the instance of the assessee the questions of law quoted earlier have been compelled to be referred by the Tribunal. 4. Section 271 (1) (c) of the Income Tax Act, 1951 reads: "271. Failure to furnish returns, comply with notices, concealment of income, etc. (1) If the Income Tax Oificer or the Appellate Assistant Commissioner or the Commissioner (Appeals) in the course of any proceedings under this Act, is satisfied that any person (a)omitted. (b)omitted. (c)has concealed the particulars of his income or furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty, (i) in the cases referred to in clause (a), (a)omitted. (b)omitted. (ii) In the cases referred to in clause (b) omitted. (iii) in the cases referred to in clause (c) in addition to any tax payable by him a sum which shall not be less than, but which shall not exceed twice, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or the furnishing of inaccurate particulars of such income: Provided that, if a case falling under clause (c) the amount of income (as determined by the Income Tax Officer on assessment) in respect of which the particulars have been concealed or inaccurate particulars have been furnished exceeds a sum of twenty-five thousand rupees, the Income Tax Officer shall not issue any direction for pay?ent by way of penalty without the previous approval of the Inspecting Assistant Commissioner. Explanation 1. Explanation 1. Wherein respect of any facts material to the computation of the total income of any person under this Act, (a)Such person fails to offer an explanation or offers an explanation which is found by the Income Tax Officer or the Appellate Assistant Commissioner or the Commissioner (Appeals) to be false, or (b)such person offers an explanation which he is not able to substantiate, then, the amount added or disallowed in computing the total income of such person as a remit thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed: Provided that nothing contained in this Explanation shall apply to a case referred to in clause (B) in respect of any amount added or disallowed as a result of the rejection of any explanation offerred by such person, if such explanation is bona fide and all the facts relating to the same and material to the computation of his total income have been disclosed by him. Explanation 2 Where the source of any receipt, deposit, outgoing or investment in any assessment years is claimed by any person to be an amount which had been added in computing the income or deducted in computing the loss in the assessment of such person for any earlier assessment year or years but in respect of which no penalty under clause (iii of this sub section had been levied; that part of the amount so added or deducted in such earlier assessment year immediately preceding the year in which the receipt, deposit, outgoing or invest?ent appears (such earlier assessment year hereafter in this Explanation referred to as the first preceding year) which is sufficient to cover the amount represented by such receipt, deposit or outgoing or value of such investment (such amount or value hereafter in this Explanation referred to as the utilised amount) shall be treated as the income of the assessee, particulars of which had been concealed or inaccurate particular of which had been furnished for the first preceding year; and where the amount so added or deducted in the first preceding year is not sufficient to cover the utilised amount, that part of the amount so added or deducted in the year immediately preceding the first preceding year which is sufficient to cover such part of the utilised amount as is not so covered shall be treated to be the income of the assessee, particulars of which had been concealed or in?ccurate particulars of which had been furnished for the year immediately preceding the first preceding year and soon, until the entire utilised amount is covered by the amounts so added or deducted in such earlier assessment years. Explanation 3. Explanation 3. Where any person who has not previously been assessed under the Indian Income Tax Act, 1922 (11 of 1922), or under this Act, fails without reasonable cause to furnish within the period specified in sub-clause (iii) of clause (a) of sub-section (1) of section 153 a return of his income which he is required to furnish under section 139 in respect of any assessment year commencing on or after the 1st day of April, 1974, and until the expiry of the period aforesaid no notice has been issued to him under sub-section (2) of section 139 or section 148 and the Income Tax Officer or the Appellate Assistant Commissioner or the Commissioner (Appeals) is satisfied that in respect of such assessment year such person has taxable income, then, such person shall, for the purposes of clause (c) of this sub-section, be deemed to have concealed the particulars of his income in respect of such assessment year, notwithstanding that such person furnishes a return of his income at any time after the expiry of the period afore?aid in pursuance of a notice under section 148. Explanation 4. For the purposes of clause (iii) of this sub-section the expression 'the amount of tax sought to be evaded', (a)in any case where the amount of income in respect of which particulars have, been concealed or inaccurate particulars have been furnished exceeds the total income assessed, means the tax that would have been chargeable on the income in respect of which particulars have been concealed or inaccurate particulars have been furnished had such income been the total income; (b)in any case to which Explanation 3 applies, means the tax on the total income assessed; (c) in any other case, means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of which particulars have been concealed or inaccurate particulars have been furnished." The ground of action in this case is that the assessee had concealed the particulars of his income. Counsel for the assessee raised two contentions: that in order to attract a penalty under the terms of this section mere concealment of income would not suffice and that there must be a finding that there was a conscious concealment of income. Counsel for the assessee raised two contentions: that in order to attract a penalty under the terms of this section mere concealment of income would not suffice and that there must be a finding that there was a conscious concealment of income. Secondly that in imposing a penalty and fixing a quantum thereof, the fact that a revised return had in fact been filed by the assessee was at least a relevant factor to be taken into account by the assessing authority, which has not been done in the instant case. 5. In support of the first of the contentions that the concealment was not a conscious concealment, Counsel for the assessee relied upon a decision of the Madras High Court in Radha Rukmani Ammal v. Commissioner of Income Tax Madras (31 I.T.R. 704 at 78 and 709). There it was ruled by the Madras High Court with respect to section 28 (1) (c) of the Indian Income Tax Act, 1922 (practically on the same terms is section 271 (1) (c) of the present Act) that penalty can be levied only if there was concealment of which the assessee was conscious and the concealment was from the assessing authority. At page 708 the Court observed as follows: "The concealment penalised under section 28 must be conceal?ent of which the assessee is conscious. Further it must be a concealment from the assessing authority, for example, the Income Tax Officer." Again at page 709 the Madras High Court observed that there was no finding nor any material for finding that the assessee had deliberately furnished inaccurate particulars of the income he has received and that the specific finding was that the assessee was not conscious of any concealment. This aspect was elaborated further in the course of the discussion in the judgment. The Counsel also relied on the observations of the Supreme Court in Anwar Ali's case, Commissioner of Income Tax, west Bengal and another v. Anwar Ali (76 I.T.R. 696 at 701). While discussing the scope of section 28 of the Indian Income Tax Act, 1922 the Court observed: "It must be remembered that the proceedings under section 28 are of a penal nature and the burden is on the department, to prove that a particular amount is a revenue receipt. While discussing the scope of section 28 of the Indian Income Tax Act, 1922 the Court observed: "It must be remembered that the proceedings under section 28 are of a penal nature and the burden is on the department, to prove that a particular amount is a revenue receipt. It would be perfectly legitimate to say that the mere fact that the explanation of the assessee is false does not necessarily give rise to the inference that the disputed amount represents income. It cannot be said that the finding given in the assessment proceedings for determining or computing the tax is conclusive. However, it is good evidence. Before penalty can be imposed the entirety of circumstances must reasonably point to the conclusion that the disputed amount represented income and that the assessee had consciously concealed the particulars of his income or had deliberately furnished inaccurate particulars." Counsel for the assessee stressed the emphasis laid on the element of 'conscious concealment' as the ingredient attract?ng liability under the section. In Commissioner of Income Tax, Madras v. J.K. A. Subramania Chettiar(110 I.T.R. 602) the Madras High Court discussed the meaning of the words "has concealed the particulars of his income'' and observed thus: "It is implicit in the word 'concealed' that there has been a deliberate act on the part of the assessee. The meaning of the word 'concealment' as found in Shorter Oxford Dictionary, third edition, Volume I, is as follows: 'In law, the intentional suppression of truth or fact known, to the injury or prejudice of another'. Consequently, there can be no doubt, with reference to the facts stated above, that both in the first return as well as in the second return the assessee had intentionally and deliberately concealed the particulars of his income." In the light of these and similar observations in some other decisions, Counsel for the assessee contended there had been no finding in this case that there was a conscious concealment by the assessee. We are unable to agree. We are unable to agree. The Tribunal as well as the Inspecting Assistant Commis?ioner have noted the facts leading to the imposition of the penalty, and after setting out the facts, the Tribunal recorded its finding at the end of paragraph 5 that the assessee firm had concealed the particulars of its income and furnished inaccurate particulars of such income within the meaning of section 271 (1) (c) of the Income Tax Act, 1961. On the facts disclosed and the circumstances shown, we are satisfied that this finding meets the requirements of law and cannot be attacked as being vitiated or defective. 6. It was next contended that the Tribunal was wrong in having completely ignored that the assessee had filed a revised return under section 139 (5) of the Income Tax Act. Section 139 (1) imposes upon a person whose total income exceeds the maximum amount not chargeable to income tax, to file a return in the prescribed form and verified in the prescribed manner setting forth such other particulars of his income as are prescribed. Section 139 (5) is as follows: "139(5): If any person having furnished a return under sub?ection (1) or sub-section (2), discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the assessment is made." What is pointed out by the Counsel for the Revenue is that section 139 (5) contemplates a case of revised return voluntarily by the assessee himself when he discovers any omission or any wrong statement in the return filed by him under sub-section (1) or sub-section (2) of the section, and not a case of a return having been practically forced on the assessee when pressed by events and circumstances such as what are disclosed herein and under imminence of the imposition of a penalty. We think the submission made by the Counsel for the Revenue is correct. We have already detailed the facts and circumstances. The Officer had issued summonses to examine two persons mentioned by the assessee. It was then that the assessee wrote on 29th Decem?er 1965 to drop examination of the two persons and admit?ing the discrepancy between the stock declared and the actual stock. We have already detailed the facts and circumstances. The Officer had issued summonses to examine two persons mentioned by the assessee. It was then that the assessee wrote on 29th Decem?er 1965 to drop examination of the two persons and admit?ing the discrepancy between the stock declared and the actual stock. In the circumstances, it cannot be held that the revised return was one under section 139 (5) of the Act, and the Tribunal was not wrong in not having taken the revised return into account. Noticing the contention of the counsel for the assessee, the Tribunal ruled to this effect, with reference to the Bombay decision in Vadilal Icchachand v. Commissioner of Income Tax (32 I.T.R. 569). It was there pointed out that the assessee's contumacy in deliberately having omitted to file an original return disclosing the correct and accurate particulars cannot be get rid of by merely filing a revised return and that the penalty would be attracted despite the fact that the original return has been subsequently corrected by a revised return. The Tribunal noticed the decision of the Madras High Court in Sivacaminatha Moopanar and Sons v. Commissioner of Income Tax (52 I.T.R. 591). It was held that the assessee at the time of submitting the original return intended to conceal a part of his income, or deliberately gave false particulars at that time, and the mere fact that he subsequently rectified the omission by giving full parti?ulars, would not avoid the applicability of section 28 (1) (c) of the Act. Counsel for the assessee relied on Commissioner of Income Tax v. Ramdas Pharmacy (77 I.T.R. 276). That decision reiterated the principle that filing a revised return under section 22 (3) of the 1922 Act will not expiate the con?umacious conduct on the part of the assessee in not having disclosed the true and correct income in the original return. It proceeded to add that it is not correct to say that the filing of the second return is of no consequence at all, while considering the liability of the assessee under section 28 (1) (c) of the Act. All the facts and circumstances commencing with the filing of the original return and ending with the assessment may be taken as relevant for considering the assessee's liability for penalty under section 28 (1) (c) of the Act. All the facts and circumstances commencing with the filing of the original return and ending with the assessment may be taken as relevant for considering the assessee's liability for penalty under section 28 (1) (c) of the Act. The principle enunciated was followed by the Gujarat decision in D. V. Patel and Co. v. Commissioner of Income Taxi 100 I.T.R. 524. The principle of these decisions do not go quite to the limit to which the assessee wants us to stretch. They do not state that in every case the filing of a revised return is a relevant factor to be taken into account before imposing a penalty. They only say that the imposition of the penalty can only be on a conspectus of all the facts and circumstances. Even accepting the principle of these decisions, we are not satisfied that in the instant case the imposition of the penalty has been made without considera?ion of relevant facts and circumstances. 7. Counsel for the Revenue invited our attention to the Full Bench decision of this Court in Commissioner of Income Tax v. Gangaram Chapplia (103 I.T.R. 613) to the effect that mens rhea is not a necessary element for the imposition of a penalty under section 271 (1) (a) of the Income Tax Act, 1961. The argument was that in such circumstances there will be no warrant to investigate whether the concealment was a conscious or intentional. concealment as expressed in some of the decisions. There is force in the submission. Whatever that be, in the circumstances we are satisfied that the finding that the assessee had concealed the particulars of his income meets the requirements of section 271 (1) (c) of the Act. 8. In the result we answer questions (1) and (2) in the affirmative, that is in favour of the Revenue and against the assessee. Question No. (3) relates to the quantum of the penalty. That is essentially in the discretion of the Tribunal. We answer this question in the affirmative, that is, in favour of the Revenue and against the assessee. There will be no order as to costs. A copy of this judgment under the seal of the Court and signature of the Registrar will be communicated to the Tribunal, as required by law.