D. MANMOHAN, J.M. These appeals, filed at instance of assessee, are directed against common order dt. 1st March, 2001, passed by CIT(A)-IV, Hyderabad, and they pertained to asst. yrs. 1994-95 to 19 97 -98. 2. Penalties levied by AO under s. 271(1)(c) of Act, and confirmed by CIT(A), are subject-matter of dispute before Tribunal. 3 . Assessee is proprietor of M/s Mahalakshmi Seeds, Nandyal, which carried on business of procuring, processing and supplying certified seeds to different companies. Though turnover of assessee exceeded Rs. 40 lakhs for each of four years under consideration, assessee did not file any returns of income. On 3rd June, 19 97 , AO conducted survey operations under s. 133A of Act on business premises of assessee. It was noticed that assessee started his business in year 1993, and though it was raising bills on companies for value of seeds as well as service charges, which exceeded Rs. 40 lakhs for each of four years, assessee did not file any return of income for said assessment years. It may be noticed that assessee admitted, during course of survey operations, that he had not maintained any books of account, except rough book, and also claimed that he was acting only as agent of various companies, and thus, entitled to service charges only. It was also submitted that service charges were his gross receipts, against which deductions, towards overheads, rent, electricity, packing, transportation, etc. need to be allowed, and net income alone is assessable to tax. following incomes were offered for taxation subject to finalisation of his accounts and preparation of statements : Asst. yr. Income offered 1994-95 Rs. 50,000 1995-96 Rs. 1,00,000 1996- 97 Rs. 1,50,000 19 97 -98 Rs. 2,00,000 Assessee had also undertaken to furnish returns of income for abovementioned years. 4. Consequent to survey operations, AO had issued notice under s. 148 of Act in respect of asst. yrs. 1994-95 and 1995-96. For asst. yr. 1996- 97 , notice was issued under s. 142(1) of Act. In response to said notices, assessee had furnished returns of income as under : Asst. yr. Date of filing return Income disclosed 1994-95 30-3-1998 Rs. 35,000 1995-96 30-3-1998 Rs. 50,140 1996- 97 30-3-1998 Rs. 94,690 For asst. yr. 19 97 -98, assessee had filed return of income on 30th March, 1998, declaring total income of Rs. 67,230. 5 . During course of assessment proceedings, assessee filed revised returns of income, wherein income as declared during course of survey proceedings was accepted. Accordingly, assessments were completed on incomes thus returned. 6 . It may be noticed that while accepting revised returns, AO observed that gross receipts admitted by assessee have been verified with reference to account copies obtained, and found to be correct. In other words, there is nothing on record to suggest that AO, during course of examination noticed certain discrepancies to come to conclusion that there was escapement of income. 7 . Consequent to assessments made on basis of revised returns, AO initiated penalty proceedings under s. 271(1)(c) of Act in response to which assessee submitted, vide letter dt. 11th April, 2000, that assessee had maintained books of account, according to his convenience, and AO has accepted same and most of entries have been proved to be correct in scrutiny assessment, and thus, assessee has not concealed any particulars of income or furnished inaccurate particulars of income. Further, revised returns were filed in order to purchase peace and to co-operate with Department, with understanding that penalty would not be levied on income declared in revised returns. Reliance was also placed upon several decisions, including decision of apex Court in case ofSir Shadi Lal Sugar & General Mills Ltd. & Anr. vs. CIT (1987) 64 CTR (SC) 199 : (1987) 168 ITR 705 (SC). 8. AO rejected contentions of assessee. He observed that assessee had started business in 1993, but did not file returns of income till date of survey operations. He further observed that during course of survey, fact that assessee has done considerable business, was detected and it was also noticed that assessee s gross receipts/sales are to extent of Rs. 1,66,720 for asst. yr. 1994-95, and he has not complied with filing of returns of income, even though assessee was aware that he has taxable income. He, therefore, concluded that action of assessee in filing returns declaring lesser income, and thereafter filing revised returns declaring higher income, only after detection of concealed income based on material found during survey, amounted to furnishing inaccurate particulars of income. He also noticed that though assessee contended that proper books were maintained, fact remains that books were not maintained in proper fashion and even in sworn statement it was remarked that he has not maintained proper books of account. In absence of books, it is not possible to arrive at correct income, and thus, assessee can be said to have furnished inaccurate particulars of income in original return, which was revised by declaring higher income. He, therefore, levied minimum penalty under s. 271(1)(c) of Act in respect of four years under consideration. 9 . Aggrieved, assessee contended before CIT(A) that he maintained rough books, which showed payments made to Ryots for quantities of seeds produced and supplied by them. account copies of companies from whom assessee has procured seeds have been obtained and verified by AO and he also found that majority of expenses are supported by vouchers, as could be noticed by AO from assessment order. Thus, it cannot be said that AO has detected concealment at time of survey operations. Though assessee initially filed returns declaring lesser income, revised returns were filed to purchase peace with Department, particularly in view of fact that assessee agreed to declare such income during course of survey operations. There is nothing on record to suggest that assessee has concealed income or furnished inaccurate particulars of income. Mere delay in filing returns of income should not be considered as malicious for imposing penalty under s. 271(1)(c) of Act. It was also stated that assessee has co-operated with Department in finalising assessments, and paid taxes, and circumstances show that it was not fit case for levy of penalty. learned counsel appearing on behalf of assessee relied upon several case laws in this regard. 1 0 . learned CIT(A) rejected contentions of assessee. He observed that during course of survey, substantial turnover for all years under consideration was noticed but, in spite of that, assessee did not file returns of income. It is only when assessee was confronted with material found at time of survey, he has disclosed incomes of Rs. 50,000, Rs. 1,00,000, Rs. 1,50,000 and Rs. 2 lakhs for asst. yrs. 1994-95 to 19 97 -98, respectively. He, therefore, concluded that incomes earned by assessee would have remained outside tax net, but for survey operations, and thus, it was clear case of concealment of income. case law relied upon by assessee was distinguished on facts. He observed that in case ofCIT vs. C.V.C. Mining Co. (1 97 6) 102 ITR 830 (AP), relied by learned counsel for assessee, certain additions were made for inability of assessee to adduce evidence. Since probabilities of case spoke both for and against assessee, penalty levied in that case was cancelled, whereas in instant case, revised returns were filed only after detection by Department. Further, case relied upon by assessee pertained to asst. yr. 1957-58, whereas word deliberately appearing in s. 271(1)(c) was deleted subsequently. With regard to decision of Tribunal, Pune Bench, in case ofSilver Palace vs. ITO (1999) 64 TTJ (Pune) 120 : (1999) 68 ITD 550 (Pune), also relied upon by assessee before him, learned CIT(A) observed that in that case, there was assurance from side of survey officer that no penalty would be levied, whereas in instant case, there was nothing on record to show that any assurance was given from side of AO, and at any rate, there cannot be any assurance against provisions of law, when facts clearly establish that assessee has concealed taxable income. He thus, confirmed orders passed by AO. 11. Further aggrieved, assessee is in appeal before Tribunal. 1 2 . learned counsel appearing on behalf of assessee strongly relied upon decision of Supreme Court in case ofCIT vs. Suresh Chandra Mittal (2001) 170 CTR (SC) 182 : (2001) 251 ITR 9 (SC)to submit that initial burden of proving that shortfall in declared income was on account ofbona fidereasons, was discharged by explaining that revised returns were filed to purchase peace of mind and to avoid vexatious litigation. Thus, onus shifted to Revenue authorities. In instant case, there is nothing on record to show that during survey operations, authorities have detected concealed income. Even during course of assessment proceedings, no material as such was found to show that income finally assessed is correct income but for detection during survey same would not have been brought to tax. He thus, strongly relied upon decision of Supreme Court in case ofSuresh Chandra Mittal(supra). Detailed written submissions reiterating above contentions were also filed before me. 13. On other hand, learned Departmental Representative strongly supported orders of tax authorities, and also relied upon unreported decision of Hyderabad Bench of Tribunal dt. 9th Sept., 2004, in case ofMastana Constructions(ITA No. 422/Hyd/2000), in support of her contention that returns captioned as revised returns cannot be considered as revised returns, much less voluntary returns, and in case where higher income is declared after investigation by Department, penalty is leviable. 1 4 . I have carefully considered rival submissions and perused record. In my considered opinion, tax authorities have not looked at issue from correct perspective. Admittedly, neither assessment order nor penalty order contained details to prove that differential income declared by assessee in revised returns, was detected by Department before assessee has come forward to furnish revised returns. There was no doubt some delay on part of assessee to file returns of income, particularly in respect of asst. yrs. 1994-95 to 1996- 97 . However, case of AO rested upon fact that in returns filed by assessee, income as originally admitted during course of survey proceedings, was not declared, and thus it amounted to furnishing inaccurate particulars, and thereby assessee concealed income. Thus, issue is confined to difference between originally returned income and income declared in revised returns, though penalty was levied with reference to tax payable on assessed income, as could be seen from assessment order. 1 5 . assessee maintained some rough books supported by some vouchers, etc. Account copies from companies from which assessee has procured foundation seeds have been obtained and verified by AO. Gross receipts admitted by assessee, supported by vouchers, were also verified by AO. There is not even whisper doubting correctness of particulars contained therein. 1 6 . In response to penalty notice, assessee submitted, vide explanation dt. 11th April, 2000, that revised returns were filed in order to purchase peace and co-operate with Department. This stand of assessee was not found to be false by Department. As could be seen from decision of Indore Bench of Hon ble Madhya Pradesh High Court in case ofCIT vs. Suresh Chandra Mittal (2000) 158 CTR (MP) 26 : (2000) 241 ITR 124 (MP), explanation of assessee that he has filed revised return to buy peace with Department could be abona fideexplanation depending on circumstances of case and, thus, as per proviso to Expln. 1, onus shifts on to Department. It may be noticed that aforesaid decision of Hon ble Madhya Pradesh High Court was confirmed by apex Court inCIT vs. Suresh Chandra Mittal(supra). Similar view was taken by Hon ble Punjab & Haryana High Court in case ofCIT vs. M.M. Rice Mills (2002) 253 ITR 17 (P&H), wherein Court observed that though onus to prove that there was no fraud or gross or wilful negligence was on assessee, yet quantum of proof required to discharge that onus was that as required in civil case, i.e., by preponderance of probabilities. preponderance of probabilities. 1 7 . In instant case, it cannot be said that assessee has not tendered any explanation. issue is whether explanation offered by assessee isbona fideor not. Explanation 1 of s. 271(1)(c) shifts onus on to Department, if explanation of assessee is found to bebona fide. question whether explanation of assessee that he has filed revised returns to buy peace and to avoid vexatious litigation, can be considered as abona fideexplanation or not, has to be examined in backdrop of facts and circumstances of each case. Reverting to facts of assessee s case, there is nothing on record to suggest that for asst. yr. 19 97 -98, assessee has earned taxable income of Rs. 2 lakhs, as assessed on basis of revised return, as against income of Rs. 67,230 declared by assessee in original return. Similarly, for other years also there is nothing on record to suggest that income finally assessed was detected by Department as correct income of assessee. Except stating that details furnished by assessee were cross-verified, there is no indication to effect that assessee has either inflated expenditure or concealed gross income. No doubt, when assessee has revised returns and declared income in conformity with statement given during course of survey proceedings, there was no occasion for AO to point out that Department has detected certain facts which would go to show that assessee has not correctly declared income. But at least in penalty proceedings, where assessee had given explanation, duty is cast upon Revenue to highlight that revised returns were filed not merely to buy peace with Department but on account of detection by Revenue authorities. Some facts and figures and estimated working is necessary to show that material on records that finally assessed income is actual/probable income earned by assessee. I n instant case, such exercise having not been done by Revenue authorities, in conformity with decision of apex Court in case ofSuresh Chandra Mittal(supra), I am of view that AO has not made out case for levy of penalty. I, therefore, cancel penalties levied by AO, and allow appeals of assessee. 18. In result, appeals filed by assessee are allowed. *** A.V.R. PRASAD v. INCOME TAX OFFICER