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TMI Blog2015 (4) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual deriving income from salary as an Executive Director in Housing Development Infrastructure Limited (HDIL). This company is mainly engaged in the business of construction and sale of residential and commercial buildings. Besides this, the assessee was also having some interest income from saving bank account. The details of filing of returns of income for the assessment years 2002-2003 to 2005-2006 are as under:- Asst.Year Date of filing of return of income Amount disclosed 2002-2003 25.03.2003 Rs.4,17,893 2003-2004 31.12.2003 Rs.4,30,520 2004-2005 19.11.2004 Rs.1,65,620 2005-2006 31.03.2006 Rs.1,50,000 The returns of income were duly accepted u/s 143(1). 2.1 A search and seizure action u/s.132(1) was conducted on 18.01.2007 in the case of Mr.Sudhakar Shetty Group and M/s.HDIL. Since, the assessee was Director in HDIL, he was also covered under the search. During the course of search, certain seized documents was found from the premises - 45C, Pattathu House, Santacruz (East), Mumbai, which belonged to Shri Antony Joseph Pattathu, proprietor of M/s.Pattathu Brothers. Shri Antony Joseph Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irms of which these blank letter heads are found. Q.24 I am showing loose paper folder No.2 containing pages from page 1 to 57. Please go through the same and explain the contents. Ans. I have gone through the loose paper folder no.2 and found that only page no.1 of in folder in belonging to me which gives the details of offer for sale of property which is a slum made to my company and no transaction has taken place till date. All the other papers from Page no.2 to 57 are belonging to M/s.Pattathu Brothers a proprietory concern of my father Shri Anthony Joseph Pattathu. I may add that all those paper form page 2 to 57 are found from the office premises of M/s.Pattathu Brothers and page no.2 was found from my car. I have also consulted my father who has confirmed that all the loose papers form pages 2 to 57 are belonging to his proprietory concern M/s.Pattathu Brothers. I have nothing to do with any of these papers." 2.2 During the course of assessment proceedings that ensued after notice u/s 153A issued on 25.09.2007, the assessee after explaining the entire facts, that all the seized documents belonged to his father and his proprietory business, wherein the assessee had no int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the assessee's explanation and treated the amount as undisclosed income, vide order dated 23.12.2008, passed for all the assessment years u/s 153A read with section 143(3). 3. During the course of the penalty proceedings, the assessee had submitted that additional income was offered on the basis of cash flow statement, which was duly reconciled on the basis of noting in the seized documents, found from the premises 45C, Pattathu House, Santacruz (East), Mumbai, i.e., the residential house of the assessee's father. It was further submitted that the assessee has not concealed any income as all these transactions related to the proprietory concern, of his father and does not belong to him. The additional income was offered in respect of the projects and property which did not belong to him, but was made only to buy peace of mind and to avoid litigation despite that most of the entries were reconciled from the books of account of M/s.Pattathu Brothers. However, the Assessing Officer did not accept the assessee's contention and held that penalty should be levied u/s 271(1)(c) for furnishing of inaccurate particulars of income and also under the deeming provision contained in E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing has been found from the possession of the assessee. Thus, he submitted that penalty levied in all the assessment years should be deleted. 6. On the other hand, the learned Departmental Representative strongly relying upon the order of the CIT(A), submitted that it is an admitted fact that the assessee has owned the income which have been worked out on the basis of seized material. Once it has been owned by the assessee, then presumption is that it belongs to the assessee only. Here in this case, the assessee has offered the amount not in the return of income filed u/s.153A, but only when notices were sent by the Assessing Officer. Hence the amount offered is after the commencement of the assessment proceedings and therefore, cannot be held to be voluntary. The assessee has not given proper explanation with regard to income worked out on the basis of seized material. Thus, penalty levied should be confirmed. 7. We have heard the rival submissions, perused the relevant material placed on record. From the facts narrated above, it is seen that the additions which are subject mater of penalty are based on seized materials / documents found at the time of search from the premis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. It is a settled law that considerations, which arises in the penalty proceedings are separate and distinct from the assessment proceedings and the assessee can rely upon the same material and explanation to show that he is not guilty of either concealment of income or furnishing of inaccurate particulars. The assessee's explanation that no material was found from the possession of the assessee stands unrebutted even upto this stage. Department has not brought any material to show that seized document belong to the assessee or assessee's explanation is false or has not been substantiated. Thus, on these facts, it cannot be held that any penalty u/s 271(1)(c) can be levied against the assessee. Further, the deeming provision of Explanation 5 will also not apply for the reason that, it postulates that the assessee should be found to be the owner of any money, bullion, jewellery or other valuable, article or thing, which here in this case, is completely absent, because the assessee has not been found to be in possession of such things as mentioned in Explanation 5. Thus, we set aside the order of the CIT(A) and delete the penalty levied for all the aforementioned assessment years. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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