2013 (1) TMI 717

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..... ailable to this assessee and no penalty under section 271(1)(c) can be imposed in all the three assessment years. Therefore, we order to delete penalty levied in all these years namely (2004-05) and (2006-07), are ordered to be deleted. - Following decision of Asst. CIT v. Gebilal Kanhaiyalal [2012 (9) TMI 297 - SUPREME COURT] - Decided in favour of assessee.
SHRI HARI OM MARATHA AND SHRI N.K. SAINI, JJ. For the Appellant : Shri G.K. Gargieya, Shri Sarvesh Baldi For the Respondent : Shri G.R. Kokani (DR) ORDER Hari Om Maratha (Judicial Member).-All the above matters were heard together. The issues involved in the appeals are exactly identical arising out of common set of facts. 2. The common facts of the case are that a search opera .....

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..... ender is not voluntary would not apply in the case when surrender of undisclosed income is made under section 132(4) and certain specific conditions are found to exist. 4. Explanation 5 to section 271(1)(c) reads as under : "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 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 sai .....

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..... such income." Therefore, the three requisite conditions of this Explanation are found to be satisfied by the assessee-company. The decision of the hon'ble jurisdictional High Court in the case of CIT v. Kanhaiyalal [2008] 299 ITR 19 (Raj), squarely applies to the facts of this case. 5. The held portion of the above decision is as under : "dismissing the appeals, that the Assessing Officer had found the income to relate to different assessment years, in different volumes, as contradistinguished to the one submitted by the assessee, and had accordingly made the assessments, which assessments had become final, and were not the subject-matter of challenge. Hence, the assessee was entitled to the immunity under Explanation 5 to .....

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