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TMI Blog2012 (5) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... re the expiry of time specified in clause (a) or (b) of sub section (1) of section 139" - So far as assessee's case is concerned it is an admitted fact that the assessee has disclosed an additional income and, therefore, the assessee is entitled to the immunity available under clause (2) of Explanation 5 of S.271(1)(c) of the Act for all these assessment years - Appeals are partly allowed - ITA No. 1091/Hyd/201,1 ITA No. 1092/Hyd/2011 and ITA No. 1093/Hyd/2011 - - - Dated:- 22-11-2011 - G.C. Gupta, Chandra Poojari, JJ. Syed Jameeluddin for the Appellant B.V. Prasad Reddy for the Respondent ORDER Chandra Poojari, Accountant Member 1. These three appeals by the assessee for the assessment years 2002-03, 2003-04 and 2004-05 are directed against the orders of the Commissioner of Income-tax(Appeals) -V, Hyderabad dated 19.4.2011. Since issues involved in all these appeals are common, these appeals are being disposed of, with this common order for the sake of convenience. 2. The only issue involved in these three appeals of the assessee relates to legality and validity of the penalties imposed under S.271(1)(c) of the Act. 2. Brief facts of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Income-tax upon examination of the case records, vide his orders dated 6.3.2008 set aside the action of the assessing officer in dropping of penalty for all the three years, and remitted the matter to the file of the assessing officer for fresh examination. It is pertinent to mention at this juncture that the ITAT, on appeal, confirmed the order of the Commissioner of Income-tax passed under S.263 of the Act. 5. In pursuance of the directions of the Commissioner of Income-tax, assessing officer initiated fresh penalty proceedings, and ultimately levied minimum penalties, with reference to the additional incomes offered by the assessee for assessment in the returns filed in response to notice under S.153A of the Act. The penalties under S.271(1)(c) of the Act, thus imposed by the assessing officer, vide his separate orders dated 12.5.2009, for the years under consideration are as follows- Assessment Year Penalty Imposed 2002-03 9,40,000 2003-04 4,79,300 2004-05 18,760 6. On appeal before the CIT(A), the assessee contended that the penalty orders, though dated 12.5.2009, have been back-dated, as they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory period of limitation was over, and as such the same are non-est in the eye of law. It is also contended that the penalty notice was originally issued on 30.12.2004 and afresh notice under S.274 read with S.271 was again issued on 22.4.2009. Since initiation and re-initiation of penalty proceedings is not contemplated by law, the impugned penalties cannot be sustained. He also submitted that the CIT(A) was not correct in holding that the assessee's case is not covered by clause (2) of Explanation 5 to S.271(1)(c) of the Act, when all the conditions laid down have been fulfilled, especially when several decisions which are squarely applicable to the facts of the case were cited before the CIT(A). It is further contended that what has been disclosed by the assessee under S.132(4) was much more than what was quantified by the DDIT (Inv) and that too for more number of years. Consequently, the CIT(A) was not correct in holding that the decision of Apex Court in the case of Sudarshan Silks and Sarees V/s. CIT(300 ITR 205) is not applicable to the facts of the present case. In support of these contentions, he placed reliance on plethora of case-law, duly furnishing copies of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order was back dated, in the absence of any corroborative evidence. In the present case, in fact was passed only before the period of limitation was over, that is 12.5.2009 and within the period of limitation ending on 31.5.2009. As correctly observed by the CIT(A) in para 4 of his order, such delays in service of notices and orders are routine and natural, even if they are sent by speed post or courier, and much cannot be inferred based just on such delay in service. The CIT(A) has extracted order sheet entries from the record and took note of the sequence of events and concluded that it is almost impossible for the Assessing Officer to back date the order, since the Assessing Officer would have to change too many records, which is again impossible to do. We are in agreement with the reasoning given by the CIT(A) for rejecting the contentions of the assessee in this behalf. We accordingly uphold the order of the CIT(A) on the aspect of limitation. 11. The next contention of the assessee is with regard to legality and validity of the initiation of the proceedings under S.271(1)(c) of the Act. We find no merit in the contentions of the assessee on this aspect as well. As is ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn 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-s(1) of this section, be deemed to have concealed and particulars of his income or furnished inaccurate particulars of such income, unless; (1) such income is, or the transactions resulting in such income are recorded (i) in a case falling under clause (a), before the date of the search; and (ii) in a case falling under clause (b), on or before such date, in the books of account, if any maintained by him for any source of income or such income is otherwise disclosed to the Chief CIT or CIT before the said date or (2) he, in the course of the search, makes a statement under sub section (4) of section 132 that any money, bullion, jewellery or other valuable article or thing found in his possession or under his control, has been acquired out of his income which has not been disclosed so far in his return of income to be furnished before the expiry of time specified in sub section (1) of section 139 and also specifies in the statement the manner in which such income has been derived and pays the tax, together with interest, if any, in r ..... 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