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TMI Blog2015 (6) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... ehended. Coming to the correctness of addition, based on statement under section 132(4), we are in agreement with the submissions of the AR, that addition itself cannot be sustained simply on the basis of statement under section 132(4), as held in the case of Raj Pal Bhatia (2009 (11) TMI 531 - DELHI HIGH COURT). Also in the case of SMJ Housing (2013 (7) TMI 660 - MADRAS HIGH COURT) that Explanation 5 cannot be invoked, as no incriminating material is found from the search. All the facts were on record, which has not been disproved by the revenue authorities or otherwise proved to be illegal, even if the claim was non allowable. Non-allowable claim cannot, by itself invite penalty, as held in the case of CIT vs Reliance Petro Products Pvt. Ltd., (2010 (3) TMI 80 - SUPREME COURT) . - Decided in favour of assesse. - ITAs Nos. 7015 to 7018/Mum/2011 - - - Dated:- 4-3-2015 - R. C. Sharma, AM And Vivek Varma, JM,JJ. For the Appellant : Shri Chetan A Karia For the Respondent : Shri Pawan Kumar Beerla ORDER Per: Vivek Varma: Instant appeals are filed against the common order of the CIT(A)-38, dated 26.06.2011, covering assessment years 2002-03, 2004-05, 2005-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT(A), sustained the order of the AO. 10. Against this order of the CIT(A), the assessee is in appeal in the four years, in which the penalty has been levied. 11. In the course of proceedings before us, the AR submitted the facts, as to how the impugned appeals have reached the ITAT. The AR submitted that the AO has primarily relied on Explanation 5A to section 5A to section 271(1)(c) and submitted that Explanation 5A to section 271(1)(c) cannot be applied because the Explanation states, where, in the course of search initiated under section 132 on or after 1st day of June, 2007, the assessee is found to be the owner of- i) any money, bullion, jewellery or other valuable article or they (hereafter in the Explanation referred to as assets) and the assessee s claim that such assets have been acquired by him by utility/wholly or in part) his income for any previous year, or (ii) any income based on any entry in any books of account or other document or transaction represents his income for any previous year, which has ended before the date of search and a) where the return of income for such previous year has been furnished before the said date but such income has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the books of account showed inaccurate particulars of income or concealed the particulars of income, the order of the Income-tax Appellate Tribunal is liable to be set aside. Accordingly, the same is set aside . 15. The AR, it may be mentioned has placed reliance on a number of decisions on the issue impugned, both before the CIT(A) and before us. The AR, basing his arguments on the same, pleaded that the penalties need to be deleted. 16. The DR primarily defended the orders of the revenue authorities. 17. We have heard the arguments and have pursued the orders of the revenue authorities and the plethora of case laws cited before us. The following are the undisputed facts: The assessee claimed the IPRs as one of the benefits of the award of Arbitration, sustained by the Hon ble Madras High Court and Hon ble Bombay High Court within the scheme of amalgamation. The assessee claimed depreciation on the IPRs as per the provisions of section 32(1)(ii), IPRs being intangible assets. The disallowance of depreciation on IPRs by the AO in regular assessment proceedings was allowed by the CIT(A). The Director Mr. Jignesh Shah withdrew the claim of depreciation in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year, which has ended before the date of search and,- (a) where the return of income for such previous year has been furnished before the said date but such income has not been declared therein; or (b) the due date for filing the return of income for such previous year has expired but the assessee has not filed the return, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of search, he shall, for the purposes of imposition of a penalty under clause (c) of subsection (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income . 23. When we analyze the expressions used in clause (i) to Explanation 5A, we find that the expressions used are definite to use the words 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 for any previous year . In the instant cases, no addition/disallowance had been made on any money, bullion, jewellery or other article or thing found in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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