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TMI Blog2012 (7) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified in s. 139(1) did not expire as on the date of the search - declaration of income was made for the earlier years for which due date for filing the return of income has already expired prior to the date of search - appellant is not entitled to benefit of immunity prided under clause 2 of Explanation 5 for the declaration made for the year under appeal - appeals are dismissed - 46/PN/11 2001-02, 47/PN/11 2002-03, 49/PN/11 2003-04 - - - Dated:- 25-5-2012 - SHRI SHAILENDRA KUMAR YADAV, SHRI G.S. PANNU, JJ. Appellant by : Shri Vipin Gujarathi Respondent by : Shri S C Shivgunde ORDER PER G.S. PANNU, A.M.: The captioned are 7 appeals pertaining to two assessees belonging to same group involving a common issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings is concerned, it would suffice to observe that in the course of the search and seizure action, assessee admitted certain additional income in the course of statement recorded under section 132(4) of the Act of Rs 9,00,471/- for the assessment year 2001-02. The said income was not declared by the assessee in the original return of income furnished under section 139(1) of the Act before the date of search. Subsequently the said income having been declared by the assessee at the time of search was offered for taxation in the return filed under section 153A of the Act. The total income declared in the return furnished under section 153A of the Act at Rs 26,39,580/- has otherwise been accepted as such in the subsequent assessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed prior to the search operation. As per the Commissioner of Income-tax (Appeals), assessee does not fulfill the conditions laid down under Explanation 5 to section 271(1)(c) of the Act and was accordingly not entitled to the benefit of immunity provided therein merely because the income declared in the statement recorded under section 132(4) of the Act has been offered in the return filed after the date of search. The Commissioner of Income-tax (Appeals) followed the decision of the Pune Bench of the Tribunal in the case of Shantilal S. Lalwani v. ACIT reported in 82 ITD 59 and also the decision of the Ahmedabad Bench of the Tribunal in the case of ACIT v. Rupesh Bholidas Patel 16 DTR 369 (Ahd). Against the aforesaid, the assessee is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is deemed to have concealed particulars of income or furnished inaccurate particulars of income. But, there are certain exceptions to the deeming fiction, as provided in clause (1) and (2) of the Explanation. 8. The first exception provided under clause 1 to Explanation 5 of section 271(1)(c) is that where the return was filed prior to the date of search and such income or the transactions resulting in such income are recorded in the books of accounts, if any, maintained by him for any source of income or such income is otherwise disclosed to the CCIT or the Commissioner before the date of the search. 9. The second exception provided under clause (2) of Explanation 5 is that if the assessee, in the course of the search, make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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