2015 (9) TMI 538

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....ion 5 to Section 271(1)(C) of the Act as the assessee had offered the undisclosed income of Rs. 1,50,00,000/- in the statement recorded u/s. 132(4) of the I.T. Act during the course of search on 31.05.2006, ignoring that the assessee has offered the undisclosed income in a separate letter filed to the department on 02.08.2006. 2. The Ld. CIT(A) has erred in law and on facts in deleting the penalty of Rs. 50,49,000/- holding that assessee is entitled for immunity as per Explanation 5 to Section 271(1)(C) of the Act, ignoring that one of the three pre-conditions to be fulfilled for getting immunity as per the above provision that assessee has to explain the manner in which the undisclosed income have been earned is not given by the assessee ....

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..... C. Builders vs. Asstt. CIT [2004] 265 ITR 562, the Hon'ble Supreme Court iii. Decision of Hon'ble Gujarat High Court in the case of National Textiles vs. CIT., [249 ITR 125] iv. Hindustan Steel Ltd. vs. State of Orissa [1972] 83 ITR 26 (SC) The only effective ground in this appeal is against the deletion of penalty levied u/s.271(1)(C) of the I.T. Act. No one appeared on behalf of the assessee, however, written submission is on record. Therefore, the appeal is taken in absence of assessee and appeal is decided on the basis of written submission filed by the assessee. 2. The facts recorded in the order of the CIT(A) in para 2, are reproduced hereinbelow for the sake of brevity: "2. The only ground of appeal is against levy of penal....

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....of 2003 ii. K. C. Builders vs. Asstt. CIT [2004] 265 ITR 562, the Hon'ble Supreme Court iii. Decision of Hon'ble Gujarat High Court in the case of National Textiles vs. CIT., [249 ITR 125] iv. Hindustan Steel Ltd. vs. State of Orissa [1972] 83 ITR 26 (SC) 4. On the contrary, the assessee has submitted that assessment for the year was framed accepting the returned income which included amount of Rs. 1,50,00,000/-, however, penalty was levied by A.O. on disclosure made by the appellant. Ld. CIT(A) has rightly deleted the penalty relying upon the decision rendered in case of Mahendra C. Patel (172 taxmann 68) and Mishrimal Soni (162 Taxmann 53). It has also submitted that this case is squarely covered by the decision of Hon'ble Tribunal....