2017 (6) TMI 726

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....ing the penalty of Rs. 41.20 lacs levied by the A.O. u/s. 271AAA of the Act. 3. Briefly stated the facts of the case are that the assessee is engaged in the business of wholesale and retail trading of gold, silver and bullion in the name and style of M/s. Neelam Enterprise. Besides the assessee also derives income from other sources. A search and seizure action u/s. 132 of the Act was carried out at the residential premises of the assessee on 25.03.2010. During the course of which the assessee admitted an income of Rs. 4.08 crores on ad-hoc basis in his statement recorded u/s. 132(4) of the Act. 4. The admitted income was offered for taxation in the return filed on 28.09.2010 and the same was accepted by the A.O. in the assessment fra....

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....bility of the assessee. It is the say of the ld. counsel that due to severe financial crunch after the search operation, the assessee could pay the taxes only in installments. Therefore, the assessee was prevented by reasonable and sufficient cause in not paying the taxes on time. The ld. counsel further stated that the only requirement of section 271AAA is that the tax together with interest has to be paid but there is no time limit prescribed in the third condition for the payment of the tax and interest. The first two conditions have been fully discharged and the third condition was also fulfilled by paying the taxes along with interest in installments. Therefore, the penalty levied should be deleted. 9. Per contra, the ld. D.R. stron....

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..... The reason is not far to seek. In the first instance, the statement is being recorded in the question and answer form and there would be no occasion for an assessee to state and make averments in the exact format stipulated* by the provisions considering the setting in which such statement is being recorded, as noted by Allahabad High Court in case of Radha Kishan Goel (supra). Secondly, considering the social environment it is not possible to expect from an assessee, whether literate or illiterate, to be specific and to the point regarding the conditions stipulated by Exception No. 2 while making statement under section 132(4) of the Act. The view taken by the Tribunal as well as Allahabad High Court to the effect that even if the statem....

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....d 24.08.2012 2,00,000/- Challan paid 21.09.2012 8,00,0007- Challan paid 21.11.2012 5,00,000/- Challan paid 22.04.2013 7,00,000/- Challan paid 15.05.2013 7,00,000/- Refund adjustment 21.05.2013 1,61,340/- Total Paid   1,42,89,408/- Total Refundable   1,32,879 12. The Hon'ble Supreme Court in the case of Gebilal Kanhaialal HUF 348 ITR 561 has held as under:- "Explanation 5 to s. 271(1)(c) is a deeming provision which provides that if, in the course of search u/s 132, the assesses is found to be the owner of unaccounted assets and he claims that such assets have been acquired by him by utilizing, wholly or partly, his income for any previous year which has end....