AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2012 (2) TMI 402
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....e premises of the assessee. During survey u/s 133A conducted at the shop of the assessee certain papers relating to investment in purchase of land were found recorded on the paper marked Annexure-A 23. On these pages detail of land area and name of certain persons are mentioned. No amount is noted on these papers. The assessee in his statement recorded at the shop in reply to question no.2, 7 and 16 accepted that, on these papers the detail of lands in which he has made investment is noted for which he stated the estimated amount and offered such investment for tax . The assessee in reply to question no. 8 also offered an amount of Rs.69,55,000/- on account of investment in shares of M/s Parshwanath Complex Ltd in the name of different persons. In reply to question no. 21, the assessee requested that no penalty be imposed on such surrender. Again in statement u/s 132(4), in reply to question no.27, the assessee accepted the total surrender of Rs.405.00 lacs on different account, with the request that on such voluntary surrender no penalty be imposed. The assessee filed the return of income for assessment year 2005-06 to assessment year 2007-08 u/s 153C by including the following ad....
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....company. Therefore, it cannot be said that the offer of Rs. 69,55,000/- made by the appellant was voluntary. As regards investment in various lands in the names of tribals, it is not in dispute during the course of survey operations various documents were found indicating lands in the names of tribal persons and these investments were not recorded in the books of account of the appellant. The mere fact that specific amounts were not recorded in the impounded documents is no ground for holding that no evidence was found during the course of search/survey. A perusal of these documents shows that complete details like name of the person, in whose name land was purchased, location of land, area etc., have been given in these documents. Since these documents were found during the course of search/survey, the onus was on the appellant to explain the source of investment in various lands mentioned in these documents. The A.R.'s contention is that the appellant had not made any investment in the land in the relevant year in the names of four persons whose statements were recorded during the course of search/survey. This is not of much consequence because the statements only show that the a....
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.... Ashok Kumar Gupta vs. CIT 287 ITR 376(P&H). In this case, the assessee had not paid tax and interest on the undisclosed income surrendered by him even alongwith the belated return. It was held by the Hon'ble Court that the assessee cannot be given the benefit of Explanation 5. It was further held that the non-availability of funds for payment of tax on surrendered income for payment of tax alongwith interest cannot be circumstance to claim immunity from levy of penalty in terms of Explanation 5. In view of these facts and circumstances, I am of the considered view that explanation 5 to section 271(1)(c) is attracted in this case and the appellant is not entitled to get immunity from penalty within the meaning of exceptions to the said Explanation. In these facts and circumstances, in my view the A.O. was justified in imposing of penalty of Rs. 35,07,610/- u/s 271(1)(c) and the same is upheld.'' 2.4 The ld. AR through his written submission submitted as under:- 1. The penalty is imposed with reference to two amounts. One is the amount of Rs.34,85,685/- on account of investment in purchases of land, and second on the amount of Rs.69,35,000/- on account of investment in share capit....
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....misplaced particularly when no incriminating material in respect of share capital was found in search/ survey and till the assessee filed the return u/s 153A offering the said amount, the AO has not taken any action to establish that the said share capital is concealed income of the assessee. All this show that additional income offered by the assessee on account of share capital was to buy peace of mind and avoid litigation and therefore CIT(A) was not justified in levying the penalty on the said amount. (b) Investment in land Rs.34,85,685/- :- (i) In survey at shop certain papers were found in which the details of investment made in various land were recorded. These papers are inventories as Annexure 'A -23' . On the individual entry in this annexure assessee give detail explanation in reply to question no 2 , question no. 7 and question no 16. It was explained that investment in certain lands recorded on these papers are reflected in the books of accounts but investment in certain other land which are in the name of Schedule Tribe, are not recorded. No amount is recorded on these papers in respect of these lands but assessee stated the estimated amount and surrendered the same....
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....-Where in the course of a search under section 132 before the 1st day of June 2007, the assessee is found to be the owner of any money, bullion, jewellery or other valuable article or thing (hereafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilizing (wholly or in part) his income,- (a) for any previous year which has ended before the date of the search, but the return of income for such year has not been furnished before the said date or, where such return has been furnished before the said date, such income has not been declared therein ; or (b) for any previous year which is to end on or after the date of the search, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of the search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income, unless,- (1) such income is, or the transactions resulting in such income are recorded,- (i) in a case falling under clause (a), before the dat....
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....ted that wherever the law requires that payment of tax is to be made within a particular time, provision is made to that effect. For instance sec. 245C provides that no application for settlement of case shall be accepted unless the tax and the interest on the additional income disclosed in the application has been paid on or before the date of making the application and the proof of such payment is attached with the application. Therefore in the absence of similar specific condition embedded in clause (2) to Explanation 5, it cannot be presumed that unless the tax alongwith interest is paid alongwith the return, the immunity of this explanation would be denied. b.) Another issue is that if there is no time provided for payment of tax alongwith interest in the said explanation, what should be the reasonable time by which assessee should make the payment of tax and interest. In this connection a useful reference can be taken from section 249(4) which provides that no appeal shall be admitted unless at the time of filling of the appeal tax due on the income returned has been paid. Therefore if the assessee has paid the tax alongwith interest on the income disclosed u/s 132(4) before....
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.... tax, together with interest, if any, in respect of such income. Sub-clause (2) does not contemplate the requirement of the assessee paying tax, together with interest, if any, in respect of such income, in any particular assessment year only. In the language of section 132(4) read with sub-clause (2) of Explanation 5, there is nowhere the requirement, that the assessee should undertake to show that asset, in a return of any particular assessment year, to be entitled to claim the immunity. When the parent provision contemplates the income to be permissible in any previous years, obviously sub-clauses (1) and (2), which are in the nature of proviso to this Explanation, have to be read in line therewith, and, therefore, if the disclosure of the asset has been made, then the assessee cannot be prohibited from showing that the income related to any one or more of the previous years before the date of the search, at the pain of the immunity conferred by sub-clause (2) of Explanation 5 being taken away. The assessee, during the course of search, gave a statement under section 132(4), making disclosure of undisclosed income of Rs. 3,50,000 and stated that it would file a return in respect....
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.... date of filing of return has not expired. The assessee did not file the return before due date. In these facts it was held that tax is required to be paid immediately and in any case before the due date of return. However in the present case the surrender is made in respect of the assessment year for which due date of filing of return has already expired. Hence this case is not applicable on facts. In view of above the levy of penalty of Rs.35,07,610/- u/s 271(1)(c) confirmed by ld. CIT(A) be deleted.'' 2.5 During the course of proceedings before us, the ld. DR drew our attention to the fact that the assessee filed the return on 21-10-2008 and has not paid tax alongwith return. The tax has not been paid even till the date of assessment order. The assessment order was passed on 29-12-2008. It was therefore, submitted that the assessee cannot get immunity in respect of the penalty u/s 271(1) ( c) of the Act as per Explanation 5. Reliance was placed on the decision of The Hon'ble Punjab & Haryana High Court in the case of Ashok Kumar Gupta Vs. CIT , 287 ITR 376. 2.6 In the rejoinder, the ld. AR submitted that the assessee surrendered income for the assessment year 2005-06 t....
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....date, such income has not been declared therein ; or (b) for any previous year which is to end on or after the date of the search, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of the search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income, unless,- (1) such income is, or the transactions resulting in such income are recorded,- (i) in a case falling under clause (a), before the date of the search ; and (ii) in a case falling under clause (b), on or before such date, in the books of account, if any, maintained by him for any source of income or such income is otherwise disclosed to the Chief Commissioner or Commissioner before the said date ; or (2) he, in the course of the search, makes a statement under subsection (4) of section 132 that any money, bullion, jewellery or other valuable article or thing found in his possession or under his control, has been acquired out of his income which has not been disclosed so far in his return of income to be....