TaxTMI 
TaxTMI 
2012 (12) TMI 488
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....mark Remedies Ltd and it's group concerns. The assessee had filed return of income in response to the notice under section 15 3A for all these 3 years. 3.2 For the assessment year 2003-04, the assessee declared a total income at Rs.. 5,92,050/- including an amount of Rs.. 2 lacs declared by the assessee only in the return filed u/s 153A. The Assessing Officer noticed that at page no. 51 of Annexure A-1 seized from the residence of the assessee, there was a calculation of interest of Rs.. 20,000/- up to 31/03/2003, which indicated that the assessee had received interest of Rs.. 20,000 out of loan given to Shri Ketan. The Assessing Officer completed the assessment by accepting the income declared by the assessee in the return of income filed in response to notice under section 153A. 3.3 For the assessment year 2004-05, the original return of income under section 139 (1) was filed on 27/10/2004 declaring income at Rs.. 4,53,810/-. In response to notice under section 153A, the assessee filed the return of income for the same income on 10/7/2006, the assessee has shown the gift of Rs.. 9,25,000/- from his uncle Shri ChampakLal Parekh on 1.10.2003, who is settled in USA. In support of ....
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....furnished inaccurate particulars of income. The ld AR has referred para 8 of the penalty order and submitted that the Assessing Officer himself was not sure about the charge against the assessee; therefore, the penalty order is not sustainable and void. In support of his contention, he has relied upon the decision of honourable Gujarat High Court in case of New Sorathia Engineering Co. v. Commissioner of Income-tax reported in 282 ITR 642 and submitted that when there is no clear cut finding that the penalty was levied for concealment of particulars of income or furnishing of inaccurate particulars of income, then the penalty could not be sustained and is liable to be cancelled. Thus, the ld AR has submitted that in the identical circumstances, the honourable Gujarat High Court has held that the penalty order is invalid when the Assessing Officer has not given a clear cut finding whether the assessee has concealed the particulars of income or furnished inaccurate particulars of income. 4.1 The 2nd leg of the argument of learned A.R of the assessee is that the seized document is a dumb paper without any signature and name and therefore, the same cannot be the basis for any addition....
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....e of argument of the ld AR of the assessee is that the provisions of explanation 5 to section 271(1)(c) are not applicable in the case of the assessee when no addition was made on the basis of seized material and further when no money, bullion, jewellery or other valuable articles or things was found during the search, then it cannot be deemed that the assessee has concealed the particulars of income or furnished inaccurate particulars of income as per explanation 5 to section 271(1)(c). In support of his contention, the ld AR of the assessee has relied upon the decision of the honourable Supreme Court in case of Commissioner of Income-tax v. Suresh Chandra Mittal reported in 251 ITR 9(SC). 4.5 He has also relied upon the decision of coordinate Bench of this Tribunal in case of Sanjoy Sankar Salvi vs ACIT dated 31/10/2011 as well as decision of Delhi Benches of this Tribunal in case of Shri Prem Arora vs DCIT dated 9th March 2012 in ITA number 4702/Del/2010. The Ld AR of the assessee has submitted that in the identical facts, the coordinate Bench of this Tribunal in case of Sanjoy Sankar Salvi (supra) has cancelled the penalty levied by the Assessing Officer. He has pointed out th....
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....sessment year 2003-04, the incriminating material shows only Rs.. 20,000/- as interest and therefore, it cannot be presumed in the absence of any material or information that the additional income offered by the assessee is otherwise liable to be added to the income of the assessee on the basis of seized material. 5.3 For the assessment year 2004-05, the gift of Rs.. 9,25,000/- was already shown in the capital account of the assessee; therefore, the said amount was already recorded in the books of accounts and cannot be said that the additional income offered by the assessee was because of something, which was not recorded in the books of account; but only because of seized material. Once the gift was duly shown in the books of accounts, then the explanation 5 to section 271 (1)(c)would not apply. It appears from the assessment order that during the course of assessment proceeding, the Assessing Officer asked the assessee to produce his uncle, who has given this gift to the assessee and only at this point and stage, the assessee decided to offer the said amount to tax. 5.4 It is apparent and manifest from the facts and circumstances of the case that to avoid the harassment of bri....
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....iminating material or information found during the course of search and seizure action. 5.8 Further, in the case of Sanjoy Sankar Salvi (supra), the coordinate Bench of this Tribunal has dealt with a similar issue in para 7 and 8 as under: "7. We have considered the rival submissions, perused the record and gone through the orders of the authorities below as the decision cited. In the course of search some material was found. When the assessee filed revised return of income in pursuance to section 153A of the Act, some additional income was declared voluntarily. During the course of assessment proceedings, no verification and enquiry was made by the Assessing Officer and accepted whatever income declared by assessee. Even in the course of penalty proceedings, the Assessing Officer without investigating and without making any enquiry into the facts of the case simply imposed penalty rejecting the explanation offered by the assessee. The learned CIT(A) confirmed the penalty by following third member decision of ITAT, Ahmedabad "B" Third Member Bench, in Asst. Commissioner of Income-tax in the case of Kirit Dahyabhai Patel. On perusal of the said case, we find the said case is not a....
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....m Arora (supra), the Delhi Bench of this Tribunal has held in paragraph 9 to 12 as under: 9. We have heard both the parties and gone through the material available on record. The first contention of ld. AR of the assessee is that the return of income filed under sec. 153A is voluntary and assessee can declare the income, which was not earlier disclosed. On the other hand, the contention of the Revenue is that the return filed under sec. 153A, is not voluntary and is intended to assess the undisclosed income. Sec. 153A was inserted into statute with effect from 1st June, 2003 by the Finance Act, 2003 which reads as under: "153A Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to ....
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....iplicity of proceedings, which was a feature of block assessment. Hon'ble Allahabad High Court in the case CIT (Central), Kanpur v Shaila Agarwal [2011] 16 taxmann.com 232 (All.) has held that the word 'abatement' is referable to something, which is pending alive, or is subject to deduction. The abatement refers to suspension or termination of the proceedings either of the main action, or the proceedings ancillary or collateral to it. The word is commonly used in the legislations, which provide for abatement of action/suit; abatement of legacies; abatement of nuisance; and all actions for such nature, which have the pendency or continuance. The proceedings, which have already terminated are not liable for abatement unless statute expressly provides for such consequence thereof. The word pending' occurring in the second proviso to section 153A of the Act, is also significant. It is qualified by the words "on the date of initiation of the search ", and makes it abundantly clear that only such assessment or reassessment proceedings are liable to abate. The pendency of an appeal in the Tribunal against the order of assessment against which an appeal has been decided by Commissioner (Ap....