TaxTMI 
TaxTMI 
2012 (8) TMI 1055
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....is case on 22/11/2006. A notice u/s 153A dated 23/11/07 was issued and served upon the assessee. In response to notice, the assessee filed return of income on 17/03/08 for all the four assessment years under consideration and offered additional income as under: - NUTAN GUPTA Chart of Additional Income offered by the Assessee in the returns of income filed u/s 153A S.No. Nature of Additional Income Offered AY 2001-02 AY 2003-04 AY 2004-05 AY 2006-07 1. Investment made in KVPs 38,000 42,000 190,000 2. Investment made in NSCs 217,100 3. Life Insurance Premia Paid (LIPs) 283,500 4. Deposits made in SB A/cs with Post Office 130,766 23,987 5. Interest accrued on KVPs 4,000 35,513 6. Interest accrued on NSCs 22,958 7. Interest on SB A/c (SBI) held by daughter 33,291 Total Additional Income Offered (Rs.) 38,000 176,766 407,100 399,249 4. The Assessing Officer initiated penalty proceedings u/s 271(1....
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....thout declaring such income. (c) The previous year relatable to the valuables found represent is yet to end after the date of search and assessee declares such income in the return of income. Exceptions to be deemed concealment in above situations have also been provided in the Explanation 5. The exceptions can be summarized as under: (i) In the first two situation {i.e., (a) and (b)}, if the assessee shows that the income in question has been recorded in his books before the date of search, he cannot be deemed to be guilty of concealment; (ii) In the third situation {i.e., (c)}, if the assessee shows that the income in question has been recorded in his books on or before the date of search, he cannot be deemed to be guilty of concealment; (iii) In all the three situation {i.e., (a), (b) and (c)}, the assessee cannot be deemed to be guilty of concealment if the income in question has been otherwise disclosed by him to the commissioner before the date of search. The explanation was amended by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986 which inserted the following clause: "unless,- (2....
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....1)(c), be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income except in cases were such transactions resulting in such income are recorded in the books of accounts maintained by him before the date of search. In order to avoid falling within the provisions of section 271(1)(c) the appellant not only has to establish that Explanation 5 is not applicable to the facts of this case, but he has also to establish that he does not fall within the entire provisions of section 271(1)(c). In Pradip Chandulal Patel vs. P.G. Karode [(1992) 197 ITR 385, 398 (Guj.)], it has been held that, in passing an order u/s 132(5), the Officer was right in coming to the conclusion that, independently of the said Explanation 5, penalty was imposable under section 271(1)(c)." 8. Ld. Counsel for the assessee reiterated the submissions made before lower revenue authorities and submitted that following two issues arise for consideration: (i) there was no variation between income returned in pursuance to notice u/s 153A and assessed income, therefore, there was no concealment of income or furnishing of inaccurate particulars of income, (ii) whether Explana....
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....earch took place on 22.11.2006. He submitted that KVPs and NSCs, LIPs are all covered within the phrase "other valuable article or thing" and, therefore, the penalty was leviable. 11. Ld. DR further submitted that return has been filed in consequence to search and, therefore, it cannot be held to be a voluntary return. In this regard he relied on the detailed findings of ld. CIT(A). 12. I have considered the submissions of both the parties and have perused the record of the case. 13. As far as assessee's contention regarding applicability of Explanation 5 to section 271(1)(c) for the period from 01/06/03 to 31/03/2007 after insertion of the words "search initiated u/s 132 before first day of June, 2007" or to be limited only to the period from 01/04/2007 to 31/05/07 on the basis of reliance placed in the case of Prem Arora (supra), is concerned, I do not find any substance in the same because the said amendments are with reference to amended provisions of Explanation 5 to sec. 271(1)(c) by which the words "search initiated u/s 132 before the first day of June, 2007" had been inserted by the Finance Act, 2007 w.e.f. 01/06/07. These amendments have no bearing to the issue in....
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....es which fall within the category of "money, bullion, jewellery or other valuation article or thing." Sub-section (5) says that all those specified articles are shortly referred to as "assets". Rule 112A makes it clear that the show cause notice contemplated by it is required to be given only with reference to those specified "assets" in respect of which inquiry u/s 132(5) is contemplated. It is evident from the scheme of section 132(5) that the "assets" which are seized during the course of an authorized search under section 132 are expected to be retained only for the purpose of satisfying the tax liability of an assessee as ascertained from his undisclosed income. Therefore, by using the words "valuable article or thing" what the legislature has intended to imply is that the assets covered by these words should be such as could be covered into cash so that the tax liability of the assessee concerned, as revealed from his undisclosed income, could be duly satisfied. In other words, the thing or article which can be retained u/s 132(5) should be one which is carrying its own intrinsic value in terms of money. A document of title relating to an immovable property or even a fixed de....