2025 (8) TMI 1691 - AT - Income Tax

Penalty under s.271(1)(c) deleted where voluntary disclosure during search, no seized incriminating evidence, retracted statement accepted (Explanation 5A inapplicable)

Sunil Kumar Agarwal Versus ACIT, Central Circle 3 (2), Kolkata

ITAT KOLKATA - AT held that penalty under s.271(1)(c) was not sustainable where the assessee made a voluntary disclosure during a search, no incriminating ... Penalty u/s 271(1)(c) - voluntary disclosure made by the assessee during the course of search for which no incriminating documents were seized - statements made during search as created at the time of search and later retracted HELD THAT:- The additional income was disclosed by the assessee voluntarily for which there was no seizure of any incriminating material during the search nor any money, bullion or jewellery or thing which was not recorded in the return of income nor any income based on the entry in any books of account was found. Therefore, explanation 5A to Section 271(1)(c) of the Act is not applicable. The case of the assessee finds support from the decision of CIT Vs. Raj Pal Bhatia [2010 (11) TMI 1010 - DELHI HIGH COURT] wherein the appeal of the Revenue is dismissed as held statement of the assessee cannot be said to be an incriminating material found during the course of search. The statement of the assessee cannot be said to be an incriminating material found during the course of search when the same was retracted and retraction affidavit was accepted by the ld. AO. Decided in favour of assessee. ISSUES PRESENTED AND CONSIDERED 1. Whether Explanation 5A to Section 271(1)(c) applies where an assessee voluntarily discloses income in a return filed after a search under Section 132, but no incriminating documents or seized assets corroborate that income. 2. Whether a statement made by the assessee under Section 132(4) during search proceedings, subsequently retracted by affidavit and accepted by the Assessing Officer, can be treated as incriminating material (books, documents or assets) for the purpose of invoking Explanation 5A to Section 271(1)(c) and sustaining penalty. 3. Whether completion of assessment under Section 153A/143(3) accepting the returned income affects the applicability of Explanation 5A to Section 271(1)(c) and the validity of the penalty imposed. ISSUE-WISE DETAILED ANALYSIS Issue 1: Applicability of Explanation 5A to Section 271(1)(c) where additional income is disclosed post-search without seizure of incriminating material Legal framework: Explanation 5A to Section 271(1)(c) deems income shown in a return furnished on or after the date of search to be 'concealed' if the assessee is found in the course of search to be owner of assets or income based on entries in books/documents/transactions representing income of a previous year ending before the date of search, and either (a) the return for that previous year was filed before the date of search but did not declare that income, or (b) the due date for filing return had expired and no return was filed. Precedent treatment: The Tribunal relied on earlier high court and tribunal pronouncements holding that documents or assets seized during search are necessary to invoke Chapter XIV-B consequences; statements made during search (Section 132(4)) that are created at the time of search and later retracted do not amount to seized incriminating documents for the purpose of the Explanation. The Tribunal referred to decisions observing that Explanation 5A requires assets or documentary entries found/seized during search. Interpretation and reasoning: The Tribunal analysed Explanation 5A's language and concluded it requires that the assessee be found to be owner of assets or income evidenced by entries in books/documents/transactions discovered in the search. Where no such assets/documents were seized or found and the additional income was voluntarily disclosed in the post-search return, Explanation 5A's deeming provision cannot be applied. The Tribunal emphasised that the additional income of Rs.1.40 crore in the present facts was not the result of discovery of incriminating material during the search nor was it evidenced by seized assets or book entries. Ratio vs. Obiter: Ratio - Explanation 5A is inapplicable where the additional income declared after search is not supported by seized assets or documents found during the search; mere post-search voluntary disclosure without corroborative seized material does not attract the deeming provision of Explanation 5A. Conclusion: Explanation 5A to Section 271(1)(c) does not apply on these facts and cannot be the basis for imposing penalty where there is no seizure or discovery of incriminating material corroborating the disclosed income. Issue 2: Effect of retracted Section 132(4) statement on imposition of penalty under Section 271(1)(c) Legal framework: Admissions made during search under Section 132(4) are admissible evidence, but such admissions are not conclusive and may be retracted; reliance on retracted confessions without corroborative material is legally precarious. CBDT guidance discourages reliance on confessions recorded during search when not corroborated. Precedent treatment: The Tribunal followed judicial authorities holding that statements recorded during search are not equivalent to 'books of account or other documents or assets' seized during search; a statement created at the time of search cannot be equated with a document found/seized and thus cannot, in isolation, sustain additions or penalties under Chapter XIV-B. It also cited authorities that additions/penalties based solely on retracted admissions without corroboration are unsafe. Interpretation and reasoning: The Tribunal noted that the assessee's initial admission during search (alleging much larger disclosure) was retracted by sworn affidavit which the Assessing Officer accepted. Given the retraction and the absence of any seized material corroborating the original admission, the Tribunal held it would be imprudent to treat the retracted Section 132(4) statement as incriminating material for the purposes of Explanation 5A or Section 271(1)(c). The Tribunal emphasised the requirement of corroboration before relying upon retracted confessions. Ratio vs. Obiter: Ratio - A retracted statement recorded under Section 132(4) which is accepted as retracted by the Assessing Officer, and which is unsupported by seized incriminating material, cannot form a safe or sufficient basis to invoke Explanation 5A or to sustain penalty under Section 271(1)(c). Conclusion: The retracted search statement, accepted by the AO and uncorroborated by seized documents/assets, is not a valid basis for imposing penalty under Section 271(1)(c). Issue 3: Impact of assessment under Section 153A/143(3) accepting returned income on the validity of penalty Legal framework: Section 153A proceedings allow assessment of income disclosed in returns filed in response to a search; if the assessment under Section 153A/143(3) accepts the returned income, it reflects administrative acceptance of declared income for that assessment year. Precedent treatment: Consistent with the reasoning on Explanation 5A and reliance on search-recorded statements, courts/tribunals have held that when assessment under Section 153A accepts the returned income and no seized incriminating material supports concealment, it undermines the basis for imposing penalty under Section 271(1)(c) under Explanation 5A. Interpretation and reasoning: The Tribunal pointed out that the assessment was completed under Section 153A/143(3) accepting the return which included the additional income. Since Explanation 5A is inapplicable (no seized corroborative material) and the assessment accepted the returned income, the prerequisites for deeming concealment under Explanation 5A and for imposition of penalty under Section 271(1)(c) were absent. Ratio vs. Obiter: Ratio - Where the assessment under Section 153A accepts the return and no incriminating seized material exists to invoke Explanation 5A, imposition of penalty under Section 271(1)(c) is not justified. Conclusion: The acceptance of returned income in assessment under Section 153A/143(3), combined with absence of seized corroborative material, negates application of Explanation 5A and mandates deletion of penalty under Section 271(1)(c). Overall Conclusion and Disposition The Tribunal concluded that Explanation 5A to Section 271(1)(c) was wrongly invoked: (a) there were no seized assets/documents or book entries corroborating the additional income; (b) the Section 132(4) statement was retracted and the retraction accepted by the Assessing Officer, making reliance on that statement unsafe without corroboration; and (c) the assessment under Section 153A/143(3) accepted the returned income. On these grounds the penalty imposed under Section 271(1)(c) was deleted and the appeals were allowed.