TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 1549
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....e. The assessee has raised the following common ground of appeal: 1. Ld. CIT (A) erred in law and on facts confirming penalty levied by AO of Rs. 67,98,000/- invoking provisions of section 271(1 )(c)of the Act. Ld. CIT (A) ought to have deleted penalty levied on income returned & accepted by AO in order passed u/s 153 A r w s 143 (3) of the Act. 2. Ld, CIT (A) erred in law and on facts confirming levy of penalty by AO under the provisions of Sec. 271 (l)(c) read with explanation 5 A of the Act accepting disclosure of Rs. 2,00,00,000/- without pacing reliance on any seized documents or assets. 3. Ld. CfT (AJ erred in law and on facts in holding the additional income offered in return filed u/s I53A to buy peace as 'undisclosed income' without drauing any inference of availability of money/bull ion or assets embedded in the entries. 4. Ld. CIT (A) erred in law and on facts in holding admission of additional income & its inclusion in returns is covered under deeming fiction of Explanation 5A even when there is no reference to any money, bullion, jewellery or asset found during search. 5. Ld. CIT (A) erred in law and on facts confirming penalty relying upon Ko....
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.... of the concealment of income u/s 271(1)(c) of the Act amounting to Rs. 67,98,000/- only being 100% of the amount of tax sought to be evaded. 3. The aggrieved assessee preferred an appeal before the Ld. CIT (A) who confirmed the order of the AO by observing as under: 6.1 Thus, whole admission, and inclusion in returns of income, of Rs. 2,00,00,000/- and Rs. 79,69,675/- respectively by the appellant is clearly and unambiguously based on document/assets found during search and now positively claimed by the appellant to be representing his income. The amounts of Rs. 2,00,00,000/- and Rs. 79,69,675/- respectively additionally disclosed by the appellant for the year under reference by way of filling the returns u/s.153A, is clearly thus evidenced by seized documents, and therefore, clearly comes within the purview of amount ''deemed to have been concealed" within the meaning of Explanation 5A, It is also not in dispute that such amount of &und is closed income" came to be offered by the appellant additionally only in the returns of income filed u/s 153A after the date of search. Before the AO as also before me, the appellant has relied exclusively on a single fact that the ....
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....rasanna Dugar 59 taxmann.com 99 (Cal) (2015), may quote: ".......3. A search was conducted on February 3, 2009. During the search, the assessee disclosed certain facts which have been recorded in the order of the appellate authority which reads as follows: The facts of the case are that a search under section 132 was conducted at the premises of the assessee on February 3, 2009. In course of search, the assessee made voluntary disclosure under section 132(4) disclosing a sum of Rs. 6 crores even though no incriminating document suggesting any such undisclosed income was found. The said disclosure, as per the said deposition of the assessee recorded under section 131 was bifurcated into 3 persons i.e of Rs. 3,50,00,000/- was disclosed in the name of the assessee Rs. 2,25,00,000/- was disclosed in the name of the assessee's wife Smt. Rajshree Dugor, and Rs. 25,00,000/- was disclosed in the name of the limited company viz.. Indian Gem and Jewellery Put. Ltd, in which the assesses had substantial interest. It may be repeated that no concealed income was established from any of the papers and documents found in the course of search in the punchnama of the assesses or in other panc....
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....r in proceeding on the basis that the is entitled to get the benefit/ immunity under clause (b} quoted above. The Tribunal also appears so have, for the purpose of interfering with the order of the appellate authority, relied upon its own judgment in She case of Ajit Kumar Surana v. Asstt. C1T [IT Appeal Nos. 835 & 836 (Kol) of 2013, dated I9-6-2013 which, even Mr. KhaiSan did not dispute, has no manner of application, to the facts and circumstances of the instant case. In the case of Ajit Kumar Surana, there was no search and seizure. In the case before us there was, in fact, a search and seizure on February 3r 2009 During the search and seizure the disclosure was made on February 3, 2009. During the search and seizure, the assesses made a statement which was recorded by the officers of the Revenue. Stress was laid by the Tribunal on the expression "voluntary" but the Tribunal failed to understand that the meaning of the expression "voluntary in the context is that the statement made by him was not extorted from him by applying force. It is in that sense a voluntary disclosure which has been clarified by the assesses by stating in answer to question no.23 that he had not given any....
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....the order of the authorities below. 7. We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the instant case arises whether there will be any penalty under section 271(1)(c) of the Act on the income declared by the assessee in return filed under section 153A of the Act. 7.1 From the preceding discussion and on perusal of the order of the authorities below, we note that there was no reference made to any incriminating document found during the search. Therefore, we are of the view that the addition of undisclosed income was based on the statement furnished under section 132(4) of the Act. 7.2 At the time of the hearing, a query was raised to the Ld. DR whether the assessee disclosed the income in pursuance to the search based on the incriminating document, but he failed to bring any material on record. Therefore, in the absence of any documentary evidence, we infer that the income disclosed by the assessee was not based on the incriminating materials. 7.3 In the case on hand, the penalty provisions are governed under the explanation 5A of section 271(1)(c) the of the Act which reads as under: "[Explanation 5A.....
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....r section 271(1)(c) by invoking Explanation 5A to said section. Held that it was undisputed fact that during the course of search, no incriminating documents were found and seized. The assessee surrendered the additional income under section 132(4) at Rs. 15 lacs and requested not to impose penalty under section 271(1)(c). The Assessing Officer imposed the penalty by invoking the Explanation 5A to section 271(1)(c). For imposing the penalty under Explanation 5A on the basis of statement recorded during the course of search, it is necessary to be found incriminating documents and is to be considered at the time of assessment framed under section 153A. As no incriminating documents were found during the course of search, therefore, Explanation 5A to section 271(1)(c) is not applicable. Accordingly, the penalty was to be deleted." From the above order, it is clear that there cannot be any penalty under explanation 5A to section 271(1)(c) of the Act until and unless the quantum addition is based on some incriminating document. Accordingly, we hold that there cannot be any penalty under section 271(1)(c) of the Act in the given facts and circumstances. 7.5 The facts of the case l....