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TMI Blog2013 (1) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... under pursuant to search u/s. 132, or even the actual date of filing of the return thereunder; being, rather, only after the date of assessment - Thirdly, as aforesaid, even if the CIT(A) held the view that the extended period for the payment of admitted demand is available, such a view, being in any case contentious and not free from debate, could not have been taken by him in the rectification proceedings u/s. 154. So, however, the matter having been conceded to by the ld. DR during hearing, admitting to the assessee's case for the relevant years being squarely covered by Explanation 5 to section 271(1)(c), we, as aforesaid, on the basis of said concession, dismiss the Revenue's appeal for both the years. We decide accordingly. - In favour of assessee - IT Appeal NoS. 1425-1426 (Kol.) of 2010 - - - Dated:- 1-8-2012 - Sanjay Arora And George Mathan, JJ. A.K. Pramanik for the Appellant. A.K. Tibrewal for the Respondent. ORDER Sanjay Arora, Accountant Member - This is a set of two Appeals by the Revenue contesting the Order u/s. 154 r.w.s. 250 of the Income-tax Act, 1961 ('the Act' hereinafter) dated 26-05-2010 by the Ld. Commissioner of Income-tax (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be said to be applicable. The appeal for these two consecutive years was therefore dismissed, allowing that for the initial three years, by the ld. CIT(A) vide his order dated 27-08-2009 (copy on record). The assessee subsequently moved a rectification petition before the ld. CIT(A) for the last two years, i.e., A.Y. 2004-05 and 2005-06, claiming that the entire demand for these years also stood paid prior to the date of the appellate order i.e., 27-08-2009. The assessee's claim was got verified by the ld. CIT(A) from the Assessing Officer (AO), who confirmed that no demand for the relevant years, i.e., A.Ys. 2004-05 and 2005-06, was outstanding as on 27-08-2009. On the basis of the said confirmation by the AO, vide his remand report dated 10-05-2010, the operating part of which stands reproduced by the ld. CIT(A) at page-3 of his order, he confirmed of a factual infirmity in his earlier order dated 27-08-2009, i.e., in-so-far as it relates to A.Ys. 2004-05 and 2005-06, and accordingly, issued a finding that the conditions of Explanation-5 to section 271(1)(c) of the Act, i.e., for availing immunity from penalty imposed under the Act, stood satisfied by the assessee for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.1 Explanation 5 to section 271(1)(c) reads as under:- "271(1) ** ** ** Explanations 1 to 4 ** ** ** Explanation 5.- Where in the course of a search initiated under section 132 before the 1st day of June, 2007, the assessee is found to be the owner of any money, bullion, jewellery or other valuable article or thing (hereafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilizing (wholly or in part) his income, - (a) for any previous year which has ended before the date of the search, but the return of income for such year has not been furnished before the said date or, where such return has been furnished before the said date, such income has not been declared therein ; or (b) for any previous year which is to end on or after the date of the search, then, notwithstanding that such income is declared by him in any return 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-section (1) of this section, be deemed to have concealed the particulars of his in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Tamil Nadu [2003] 263 ITR 658 (SC). 4.2 Our second observation in the matter is that the admitted income-tax, together with interest, as per the provisions of Explanation 5 is to be paid, if not immediately after the statement/deposition u/s. 132(4), by the date of filing of the return of income u/s. 153A, i.e., for the purpose of framing the assessment thereunder, which is to mandatorily follow a search u/s. 132 or requisition u/s. 132A of the Act after 31-05-2003 in respect of the defined period, and under which section the assessments in the instant case have been framed. We have compared the figures of income-tax and interest liability as assessed, and the details of its payment for both the years, as mentioned in the appellate order dated 27-08-2009 (at para-3.3, pg.16), with that per the respective assessment orders u/s. 153A r.w.s. 143(3) of the Act dated 20-06-2008, to find the same as identical. Clearly, therefore, there has been, firstly, no error in recording the said figures by the ld. CIT(A) in his order dated 27-08-2009. Secondly, and more importantly, tax and interest to the extent mentioned in the assessment orders, i.e., at in his order Rs.13.33 lakhs and Rs. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A No.1857 to 1859/Kol/2009, copy on record) would not operate to decide the issue qua applicability of Explanation 5 to section 271(1)(c) for the years under reference, i.e., A.Ys. 2001-02 to 2003-04. This is for the reason that the Revenue's appeal for the first three years (A.Ys. 2001-02 to 2003-04), was dismissed on account of low tax-effect u/s. 268A. Sub-section (3) of s. 268A precludes the assessee from contending that in such case the Income-tax Authority has acquiesced in the decision on the disputed issue. Reference in this regard may also be made to the decision in the case of S. Shanmugavel Nadar (supra). As regards the years under reference in the instant case, i.e., A.Ys. 2004-05 and 2005-06, the assessee's appeals were dismissed by the tribunal, being infructuous. Clearly, no appeal by the assessee would survive after impugned order for the relevant years, deleting the penalty. The order by the tribunal would thus not have any bearing in the matter on the merits of the case. 5. Conclusion In view of the foregoing, we find the assessee's claim for immunity under Explanation 5 to section 271(1)(c) as not maintainable for three reasons. Firstly, due to the inapplicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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