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TMI Blog2015 (12) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... Balaganesh, Accountant Member For the Appellant/Department: Shri S.Dutta, JCIT, ld.Sr.DR For the Respondent/Assessee : S/Shri A.K Tibrewal, Shri A.K Tulsiyan, FCAs Amit Agarwal, Advocate, ld.ARs Date of Pronouncement: 16 -12-2015 ORDER Shri M. Balaganesh, AM These appeals arise out of different orders passed by the Learned CIT(A), Central-III/II, Kolkata in Appeal Nos. 180 to 184/CC-I/CIT(A)/C-III/08-09 dated 26.05.2010 for the Asst Years 2004-05 2005-06 in respect of Shri. Sheo Kumar Kajaria ; Appeal Nos. 37/CC-XII/CIT(A)C-II/10-11, 38/CC-XII/CIT(A)C-II/10-11, 39/CC-XII/CIT(A)C-II/10-11, 40/CC-XII/CIT(A)C-II/10-11 36/CC-XII/CIT(A)CII/ 10-11 dated 14-12-2010 for the Asst Years 2002-03 to 2006-07 in respect of M/s Gopal Das Kothari(HUF) and Appeal Nos. 41,40 39/CC-1/CIT(A)/C/10-11 dated 23.06.2011 for the Asst Years 2004-05 , 2005-06 2006-07 in respect of Shri. Sanjan Kr. Patwari, against the order of Penalty passed by the Learned AO u/s 271(1)(c ) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. The only issue involved in all these appeals is that whether the assessee is entitled for immunity from levy of penalty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in not following the Third Member decision of Hon ble ITAT, Ahmedabad, Bench B , in the case of ACIT, CC-I(3) vs Kirti Dahyabhai Patel, reported in 121 ITD 159 , wherein it was held that the assessee was not entitled to the immunity from penalty for the years for which the due date of filing of return had expired prior to the date of search. 4. That the Department craves leave to add, modify or alter any of the ground (s) of appeal and / or adduce additional evidence at the time of hearing of the case. The same grounds are raised for the Asst Years 2003-04 to 2006-07 by the revenue except with change in figure of Penalty levied. 3.3. Shri Sajjan Kumar Patwari (HUF) - Asst Year 2004-05 1. That in the facts and circumstances of the case and in law the Ld. CIT(A) has erred in cancelling the penalty of ₹ 1,56,852/- for A.Y. 2004-05, ₹ 9,93,633/- for A.Y. 2005-06 and ₹ 24,23,673/- for A.Y. 2006-07 imposed up u/s 271(1)(c ) of the I.T. Act by holding that the assessee was eligible for immunity under Explanation -5 to sec 271(1)(c ) of the Act, without appreciating that the date of filing of return for all these years had expired prior to the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ARS 2004-05 2005-06 Income admitted u/s 139(1) 7,17,758 8,14,514 Disclosure made u/s. 132(4) 77,39,135 1,23,02,449 Income disclosed u/s. 153A 77,39,135 1,23,02,449 Additional income offered during asst proceedings 0 0 Income assessed u/s. 153A 84,57,672 1,31,16,963 4.2. The Learned AO levied penalty in respect of income returned and assessed u/s 153A of the Act on the ground that but for the search, the assessee would not have come forward for disclosure of the undisclosed income. On first appeal, the Learned CITA in his order u/s 250 of the Act dated 27.8.2009 upheld the levy of penalty as according to Learned CITA, the assessee had not paid the taxes due thereon in respect of income offered u/s 153A of the Act and accordingly that the assessee had not cumulatively satisfied the conditions stipulated in Clause 2 of Explanation 5 to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional income offered during the course of assessment proceedings and assessed income thereon are tabulated as below:- Particulars ASSESSMENT YEARS 2002-03 2003-04 2004-05 2005-06 2006-07 Income admitted u/s 139(1) 69778 64322 45960 74693 251961 Disclosure made u/s. 132(4) 3830222 3335678 8454040 8025307 13348039 Income disclosed u/s. 153C 3900000 3400000 8500000 8100000 13600000 Additional income offered during asst proceedings 0 0 143985 0 0 Income assessed u/s. 153C 3900000 3400000 8643985 8100000 13600000 5.2. In the course of assessment proceedings, the assessee disclosed further income of ₹ 1,43,985/- for the Asst Year 2004-05. The Learned AO levied penalty in respect of income returned , additional income offered during assessment proceedings and income assessed u/s 153C of the Act on the ground that but for the search, the assessee would not have come forward for disclosure of the undis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2. In the course of assessment proceedings, the assessee disclosed further income of ₹ 513/- for the Asst Year 2006-07. The Learned AO levied penalty in respect of income returned , additional income offered during assessment proceedings and income assessed u/s 153C of the Act on the ground that but for the search, the assessee would not have come forward for disclosure of the undisclosed income. On first appeal, the Learned CITA deleted the penalty for the assessment years 2004-05 to 2006-07 stating that the assessee had satisfied all the conditions stipulated in clause 2 to Explanation 5 to section 271(1)(c ) of the Act and accordingly is entitled for immunity from levy of penalty as the assessee had, made disclosure statement u/s 132(4) of the Act and had disclosed the same in the return filed in response to notice u/s 153C of the Act , had specified the manner in which such undisclosed income has been earned and paid taxes due thereon. Aggrieved, the revenue has raised the similar grounds for the assessment years 2004-05 to 2006-07 as mentioned hereinabove. 7. The Learned DR argued that but for the search, the assessee would not have come forward to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irely covered by the coordinate bench decision of this tribunal in the case of Narendra J Thacker vs DCIT for Asst Years 2001-02 to 2005-06 vide order dated 4.12.2015, wherein all the case laws on the impugned subject have been elaborately discussed. 8. We have heard the rival submissions and perused the materials available on record. We find that the impugned issue for all the assessment years in respect of all the assesses herein are squarely covered by the recent decision of the coordinate bench of this tribunal in the case of Narendra J Thacker vs DCIT for the Asst Years 2001-02 to 2005-06 vide order dated 4.12.2015. The said tribunal relied on the following decisions on the impugned issue :- a) Decision of Hon ble Calcutta High Court in the case of CIT vs Amardeep Singh Dhanjal in ITA No. 39 of 2010 dated 11.1.2013. b) Decision of Hon ble Calcutta High Court in the case of CIT vs Brijendra Gupta in ITA No. 330 of 2009 dated 8.6.2015. c) Decision of Kolkata Tribunal in the case of DCIT vs Shayam Sunder Beriwal in ITA Nos. 1061, 1062 1063 / Kol / 2008 dated 31.10.2008 d) Decision of Delhi Tribunal in the case of Prem Arora vs DCIT reported in (2012) 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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