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TMI Blog2013 (2) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... are to be satisfied are cumulative. The law contemplates that on receipt of notice under section 158 BD, the party must file return disclosing the income. He must pay the tax or he must offer that the money seized may be adjusted against the tax payable. He must provide the evidence for tax paid along with the return in clause (iii). Also notice the presence of the word 'and' after clause (iii) which is followed by clause (iv) which deals with the last of four requirements to be fulfilled by the assessee, namely, that he should not appeal the assessment of that part of income shown in the return. The provisions of clause (iv) clearly indicate that he must not file any appeal against that part of income which is shown in the return. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome as 'Nil'. The assessment was completed. Thereafter the officer decided to issue notice for imposing penalty under section 158 BFA(2). The appellant filed objections. Over ruling the objections, the Officer imposed penalty at the minimum amount of Rs.9.95 Lakhs. It is the said order that has been affirmed by the First Appellate Authority and also the Tribunal. Hence the appeal. 2. The question of law which is raised for consideration in this appeal is as follows: "In the facts and circumstances of the case, ought not the Tribunal have held that in view of the conduct of the assessee in co-operating with the Department in the proceedings of assessment penalty under section 158 BFA(2) was not leviable?" 3. We heard learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter, may direct that a person shall pay by way of penalty a sum which shall not be less than the amount of tax leviable but which shall not exceed three times the amount of tax so leviable in respect of the undisclosed income determined by the Assessing Officer under clause (c) of section 158BC: Provided that no order imposing penalty shall be made in respect of a person if - (i) such person has furnished a return under clause (a) of section 158BC; (ii) The tax payable on the basis of such return has been paid or, if the assets seized consist of money, the assessee offers the money so seized to be adjusted against the tax payable; (iii) evidence of tax paid is furnished along with the return; and (iv) an appeal is no filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndisclosed income under section 158BC and exclusion from penalty is an exception covered by the first proviso to the main section, which is subject to the second proviso thereto. What is clear from the first proviso is that if, pursuant to the notice issued under section 158 BC(a) assessee files return, remits tax and does not proceed to contest the undisclosed income returned based on which assessment is made, there is no scope for any penalty. However, the second proviso is an exception to the first proviso which makes it clear that if any undisclosed income is assessed over and above the undisclosed income returned by the assessee in the return filed pursuant to notice issued under section 158 BC(a), penalty is to be levied on such exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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