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TMI Blog2012 (9) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the additional income declared in the return of income. The penalties u/s 271(1)(c) are levied for all these years. The details of Assessment Year, Additional income declared, Total income, Assessed income and amount of penalty levied u/s 271(1)(c) for all these six Assessment Years are as below :- Assessment Year Income declared additionally (Rs.) Total declared income (Rs.) Assessed Income (Rs.) Penalty u/s 271(1)(c) 2001-02 4,65,827 6,66,130 6,66,130 1,63,507 2002-03 53,171 2,48,870 2,48,870 16,270 2003-04 13,98,032 16,57,160 16,57,160 4,51,404 2004-05 2,61,629 5,35,840 5,35,840 88,989 2005-06 1,28,519 4,39,100 4,39,100 39,328 2006-07 7,32,063 9,96,930 9,96,930 2,24,014 3. Against this order, assessee is before us in appeal in all these years. The CIT (A) has confirmed the penalty by holding as under :- "7. I have gone through the submission filed by the appellant and the main contention of the appellant are that the provisions of Explanation 5 to section 271(1)(c) are not applicable in a search carried out between 1.06.03 to 31.05.07 and secondly the said explanation is applicable only in respect of assets representing undisclosed income found in search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000) 160 CTR (Karn) 128, 129, 130], the Tribunal has been held not right in law in holding that the assessee has not concealed particulars of income, as concealment has to be considered with reference to the return of income filed by the assessee, when the assessee has filed the return of income after seizure of cash from the assessee by the Customs and Central Excise and its seizure by the I.T Department u/s132A. This is so because the assessee has himself failed to prove the source and the acquisition of the that money and ultimately has offered the amount for taxation. " Reliance is also placed on the following judgements; 1. In the case of Sangam Enterprises v. Commissioner of Income-tax (Alld) 288 ITR 396 where the court held that if concealment is discovered during search penalty can justifiably be levied. The Allahabad High Court pointed out that Explanation 1 to section 271 (1)(c) was applicable even in the case where search has been carried out. 2. In the case of M.Shahul Mameed Batcha v. Incometax Officer (Mad) 292 ITR 585, the assessee filed revised returns before the issue of notice U/S 148 of the I T Act, which was accepted by the Assessing Officer, but the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .11.2006 and the facts are also similar, therefore, the issue in the present case is covered by this decision. 6. Ld. DR relied on the orders of the CIT (A) and also on the decision of ITAT, 'F' Bench, Mumbai in the case of Harish P. Mashruwala vs. ACIT reported in (2011) 9 ITR (Trib) 0752. 7. In the rejoinder, the ld. AR submitted that the facts of decision of Harish P. Mashruwala are completely different. Since there is a direct judgment of the coordinate Bench of ITAT, Delhi on the same issue and the facts are same, the assessee should be granted the relief. The levy of penalties deserves to be deleted. 8. We have heard both the sides on the issue. In this case, search was carried out on 22.11.2006. Certain documents / loose papers were seized. Additional income from business was disclosed in the return of income filed u/s 153A of the Act. In the case of Prem Arora's case also, search was carried out on 22.11.2006 at the residence and business premises. Loose papers containing incriminating documents were seized. Additional income was declared in the return of income. Penalty was levied u/s 271(1)(c) on this additional income. ITAT had deleted the penalty. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me for any previous year; or (ii) any income based on any entry in any books of account or other documents or transactions and he claims that such entry in the books of account or other documents or transactions represents his income (wholly or in part) for any previous year, which has ended before the date of search and,- (a) where the return of income for such previous year has been furnished before the said date but such income has not been declared therein; or (b) the due date for filing the return of income for such previous year has expired but the assessee has not filed the return, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income." 31. From above discussion it is clear that the provisions of Explanation 5 are applicable in the cases where during the course of search initiated on or before 1.6.2007 any money, bullion, jewellery or other valuable article or thing is found in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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