TaxTMI 
TaxTMI 
2012 (5) TMI 363
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....with Indian Bank, Osman Gunj Branch, Hyderabad were found and an amount of Rs.30,94,157 was also seized. 3. In response to notice under S.153A of the Act, for the assessment year 2002-03, assessee filed his return of income on 9.2.2004 admitting total income of Rs.37,15,279, as against income of Rs.6,43,320 disclosed in the return originally filed earlier on 28.2.2003. The additional income of Rs.30,71,958 offered by the assessee for assessment in the return filed on 9.2.2004 includes the following items- (a) Indian Bank FDR Rs.28,00,000 (b) Interest on FDR Rs.73,458 (c) Profit from own business Rs.38,500 (d) Cash as on 10.09.2001 Rs.1,60,000 Similarly, assessee filed his return of income for the assessment year 2003-04, after the search operation, on 10.2.2004 admitting total income of Rs.22,13,460, which includes additional income, not disclosed in the return filed earlier, of Rs.15,21,590, which comprised of the following three items- (a) Indian Bank FDR Rs.12,00,000 (b) Interest on FDR Rs.1,99,090 (c) Profit from own business Rs.1,22,500 For the assessment year 2004-05, similarly, in the return filed in res....
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....ment, and not during the course of assessment proceedings, and on that legal ground also, the penalties imposed cannot be sustained. On the merits, it was the contention of the assessee before the CIT(A) that since the assessee has voluntarily disclosed the additional incomes, there was no concealment on the part of the assessee and hence on that factual ground also, impugned penalties cannot be justified. The CIT(A) did not find favour with any of these legal or factual contentions. After extracting the relevant noting sheet entries relating to imposition of penalty, the CIT(A) noted that the sequence of events as evident form those entries, clearly indicate that the orders of penalty were passed on 12.5.2009 only, and the allegation of the assessee of the assessee is based merely on account of delay in the service of the penalty order by a few days. Just on account of such delays, for which there could be many reasons, one cannot conclude that the assessing officer had deliberately back dated the orders, as for back dating the orders, the assessing officer has to change too many records, which is impossible to do. He also found that the assessment orders clearly indicate the init....
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....hat the impugned orders of penalty were passed within the period of limitation prescribed by law, and even on merits, it is a fit case for levy of penalty for all the three years. 9.1. Further, learned Departmental Representative submitted that the benefit under clause (2) to Expln. 5 to s. 272(1)(c) are available only for the previous year during which the search action has taken place and for this purpose he strongly relied on the existence of words "Return of income to be furnished before expiry of time specified in clause (a) or clause (b) of sub s. (1) of s.139". He submitted that immunity was available only with respect of the return which has not yet fallen due as per the provisions of section 139 (1)(a) and 139 (1)(b) which otherwise means that the immunity was available only for the period which fell under the definition of the previous year during which search was conducted. 10. We have considered the rival submissions and perused the orders of the lower authorities, besides going through the written submissions and other material filed by the assessee in the paperbooks before us. We have also gone through the case-law relied upon by the learned counse....
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....the dropping of penalty and remitted the matter to the file of the Assessing Officer for fresh proceedings. It is in pursuance of the directions of the Commissioner, the penalty proceedings, which gave rise to the present appellate proceedings before us, were initiated. The said order of the Commissioner passed under S.263 was subject matter of appeal before the Tribunal, and the Tribunal vide its order dated 24.10.2008 has upheld the action of the commissioner under S.263 of the Act. Since legality and validity of the directions of the Commissioner under S.263 of the Act, has already been upheld by this Tribunal in the earlier round of appellate proceedings against the order of the Commissioner passed under S.263 of the Act, it is too late in the day for the assessee to contest the legality and validity of the proceedings initiated by the Assessing Officer under S.271(1)(c) of the Act, in pursuance of the directions of the Commissioner. We accordingly, reject the contentions of the assessee on this aspect. 12. Now, we may deal with the merits of the case with regard to levy of penalty under S.271(1)(c) of the Act. So far as the assessee's claim of immunity available unde....
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....n clauses (a) and (b) of sub section (1) of s. 139', cannot be read without the words 'income which has not been disclosed so far in his return of income' preceding the aforesaid words and if we read the complete sentence which is comprising out of words "has been acquired out of his income which has not been disclosed so far in his return of income to be furnished before the expiry of time specified in clause (a) or (b) of sub section (1) of section 139", it is abundantly clear that existence of words 'cl. (a) or cl. (b) of sub section (1) of s. 139' do not refer only to the return of income to be furnished, rather they refer also to the return of income which has have been furnished though of course the returns so furnished were to be furnished in view of clauses (a) and (b) of sub section (1) of section 139, meaning thereby that this clause refers to the returns already having been furnished as well as the returns which are yet to be furnished. Had it not been the case, then words, which has not been disclosed so far should not have been in the provisions. Existence of these words clearly leads one to understand that this clause is applicable to the returns already furnished as ....