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TMI Blog2014 (4) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... is being recorded by the authorized officer it is incumbent upon the authorized officer to explain the provisions of Explanation 5 in its entirety to the assessee concerned and the authorized officer cannot stop short at a particular stage so as to permit the Revenue to take advantage of such a lapse in the statement - even if the statement does not specify the manner in which the income is derived, if the income is declared and tax thereon paid, there would be substantial compliance not warranting any further denial of the benefit under exception No.2 in Explanation 5 is commendable – Decided against Revenue. - I.T.A. No.2610/Ahd/2010 - - - Dated:- 15-11-2013 - N S Saini And Kul Bharat, JJ. For the Appellant : Shri J P Jhangid Sr.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon the decision in the case of CIT vs. Mishrimani Soni 162 Taxman 53, ignoring that the facts of the case in the above case law is quite distinguishable from the facts of the instant case. v) The Ld.CIT(A) has erred in holding that penalty is not leviable in this case as per decision of CIT vs. Mishriomani Soni 162 Taxman 53, wherein it was held that Explanation 5 to section 271(1)(c) of the Act does not make any distinction between tangible and intangible assets, ignoring that amended provision Explanation 5A to Section 271(1)(c) was come in to effect in the Finance Act 2009, making it applicable prospectively to the cases in which search was conducted on or after 01/06/2007 and in the instant case, the search action was carried o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT vs. Mahendra C.Shah reported at 299 ITR 305 (Guj.). He submitted that there was a survey action and the statement was recorded thereby the assessee made disclosure, however, the said disclosure was retracted by way of Affidavit but the AO assured him that no penalty would be levied, therefore assessee filed the revised return of income and disclosed additional income of Rs.9,01,193/- as disclosed u/s.132(4) of the Act on 12/12/2008 and paid taxes thereon. He made submission that under these facts, the immunity as provided under Explanation (5) to Section 271(1)(c) was available and placed reliance on various decisions. 5. On the contrary, ld.Sr.DR supported the order of the AO and submitted that the assessee had disclosed income only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement recorded u/s.132(4) of the Act. This ground of the Revenue is ex facie false and contrary to the records. As per Annexure-A, the statement has been recorded u/s.132 of the Act and not u/s.133A of the Act as claimed. Moreover, the AO categorically in his order has recorded a finding that the statement u/s.132(4) of the Act was recorded from the assessee. Hence, there is no substance in this ground of the Revenue. Another submission of Revenue is that the assessee has not explained the manner in which the disclosed income was earned. The Hon ble Jurisdictional High Court in the case of CIT vs. Mahendra C.Shah(supra) has observed that according to the Revenue, the statement made u/s.132(4) of the Act by the assessee at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar stage so as to permit the Revenue to take advantage of such a lapse in the statement. The reason is not far to seek. In the first instance, the statement is being recorded in the question and answer form and there would be no occasion for an assessee to state and make averments in the exact format stipulated by the provisions considering the setting in which such statement is being recorded. The Hon ble Jurisdictional High Court after considering the judgement of Hon ble Allahabad High Court rendered in the case of CIT vs. Radha Kishan Goel (2005) 278 ITR 454, affirmed the view of the Tribunal and also followed the judgement of Hon ble Allahabad High Court, held that even if the statement does not specify the manner in which the income i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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