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TMI Blog2013 (5) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings under this Act, is satisfied that any person- .... (c) has concealed the particulars of his income or furnished inaccurate particulars of such income, ... he may direct that such person shall pay by way of penalty,- .... Explanation 5.-Where in the course of a search under section 132, the assessee is found to be the owner of any money, bullion, jewellery or other valuable article or thin (hereafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilising (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 retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings and the AO passed an assessment order on 21.03.1995 holding the taxable income of the Assessee to Rs. 11,18,990/-. This included the surrendered income as well. 6. The AO also initiated penalty proceedings under section 271 of the Act and imposed a penalty of Rs. 4,84,400/- on 29.10.1999 treating the Assessee to have concealed the particulars of the income to the extent of the surrendered amount in view of the Explanation. (1) ... (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 inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NOT NECESSARY TO FILE RETURN BEFORE DUE DATE 11. The Assessee is an individual. The due date for filing return under section 139(1) of the Act for the relevant assessment year 1992-93 was 31st August, 1992. However, the return was filed belatedly on 19.08.1994 ie after the due date for filing the return by the Assessee under section 139(1) of the Act, though a statement was made during search before the due date on 11.08.1992. The question is, is it the requirement of the law that the return should be filed before the due date, in order to get the benefit of immunity under clause (2 ) of the Explanation. 12. The due date for filing return for the Assessee was 31.08.1992. However, subject to certain conditions, a belated return could also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, should be liberally construed rather than other way round. 18. A Division Bench of the Allahabad High Court in Commissioner of Income Tax vs Radha Kishan Goel {(2005) 278 ITR 454 (All)} explained the intention and object of immunity provided in the clauses to the Explanation as follows: 'The exception appears to be to provide an opportunity to the assessee to make a clean and fair confession and to surrender his income and also to deposit the tax and interest thereon which may result in an agreed assessment. The paramount intention appears to be that in the case of fair and clean confession and surrender of his income, during the course of search further litigation may be avoided and the Revenue may get the tax and interest, etc., at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation. 22. A Division Bench of the Madras High Court in Commissioner of Income Tax vs SDV Chandru - (2004) 266 ITR 0175 has observed: 'The additional words which refer to the time specified in section 139(1) are only a reiteration of the legal requirement regarding the time within which returns should normally be filed.' 23. In case, the legislature wanted the fourth condition namely that return had to be filed before the time specified under section 139(1) of the Act then the words 'and files the same' would have also been added in clause (2) to the Explanation after the words 'sub-section (1) of section 139'. The fact that such words are not inserted indicates that such condition is not required. 24. In our opinion, in order to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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