TaxTMI 
TaxTMI 
2016 (8) TMI 355
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....." 2. Briefly stated the facts of the case are that the assessment under section 153A read with section 153B/143(3) of the I.T. Act, 1961 (hereinafter referred to as the Act) was framed vide order dated 24.12.2009. While framing the assessment, the AO also initiated penalty proceedings under section 271(1)(c) of the Act on the undisclosed income declared under section 132(4) of the Act during the search proceedings. Subsequently penalty order under section 271(1)(c) read with section 274 of the Act was passed levying penalty of Rs. 30,53,113/-. The assessee aggrieved by this order, preferred appeal before ld. CIT (A), who after considering the submissions and relying on the Hon'ble Apex Court judgment rendered in the case of ACIT vs. Gebi ....
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....e total surrender of Rs. 1.40 crores made in the course of statement u/s 132(4) was also declared in this year. The total surrender in this year in the hands of the appellant, therefore, amounted to Rs. 91,50,000/- which was accepted by the AO in the order passed u/s 153A/143(3). The AO while imposing the penalty has mentioned this amount in the first para of the penalty order but while discussing the issue in the body of the order, he has mentioned the amount as Rs. 82,00,000/-. Thus, it is apparent that the AO is discussing some other amount in paras 1 to 4 (in Hindi) of the order as the correct amount should be Rs. 91,50,000/-. 6.2. It is further noted that depositing the tax before filing the IT return was not a condition precedent for....
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....eted." The above finding of the ld. CIT (A) is not controverted by the revenue by placing any contrary material on record. It is undisputed fact that the assessee in his return of income has declared undisclosed income as was declared during the course of search under section 132(4) of the Act. As per Explanation-5 to section 271(1)(c) of the Act, immunity is provided to the assessee against levying of penalty subject to fulfillment of certain conditions. One of the conditions is that the undisclosed income is required to be incorporated into the return of income to be furnished before expiry of time specified in section 139(1) of the Act and also specify in the statement, manner in which such income has been derived and pay the tax togeth....
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....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, - (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....
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....ction 271(1)(c). the first condition was that the assessee must make a statement under section 132(4) in the course of search stating that the unaccounted assets and incriminating documents found from his possession during the search have been acquired out of his income, which has not been disclosed in the return of income to be furnished before expiry of time specified in section 139(1). Such statement was made by the karta during the search which concluded on August 1, 1987. It is not in dispute that condition No. 1 was fulfilled. The second condition for availing of the immunity from penalty under section 271(1)(c) was that the assessee should specify, in his statement under section 132(4), the manner in which such income stood derived. ....