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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 ..... 0-11 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 account of Explanation 5 to Section 271(1)(c ) of the Act in respect of income offered after the search but in the return filed u/s 153A / 153C of the Act. Since identical issue is involved in all the appeals, they are taken up together and disposed off by this common order for the sake of convenience. 3. The revenue had raised the following grounds before us for all the assessment years under appeal as mentioned hereinabove:- 3.1. Shri Sheo Kumar Kajaria - Asst Year 2004-05 1. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law as well as in facts by deleting the penalty levied u/s 271(1)(c ) on the ground that the assessee's case is immunized from penalty on account of Explanation -5 to Section 271(1) when the assessee's case does not come under the purview of the exceptions provided th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 9,93,633/- for A.Y. 2005-06 and Rs. 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 of search and the assessee was not eligible for immunity available under clause (2) of Explanation (5) of sec. 271(1)(c ) of the Act. 2. That in the facts and circumstances of the case and in law the Ld. CIT(A) has erred in not following the decision of Ld. ITAT in the case of ACIT, CC-I(3) vs Kirit Dayabhai Patel reported in 121 ITD 159(AHD) (TM ) , wherein it was held that the assessee was not entitled to immunity from penalty where additional income was declared in return filed in response to notice u/s 153A of the Act which did not fall under category of return mentioned in Explanation 5(2) to sec. 271(1)(c ). 3. That the appeal for the A.Y 2004-05 is being filed inspite of tax effect being less than Rs. 3 lakh for the reason that the CIT(A) has passed a consolidated order and his decision is being contested in other years, hence appeal is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned CITA in respect of mistake committed by the Learned CITA with regard to the finding that assessee had not paid the taxes on the income disclosed u/s 153A of the Act. The Learned CITA pursuant to verification of the fact of paymentof taxes by the assessee , sought to rectify his earlier order and passed an order u/s 154 read with section 250 of the Act on 26.5.2010 stating that the assessee is indeed entitled for immunity from levy of penalty and allowed the appeals of the assessee for the Asst Years 2004-05 and 2005-06. Aggrieved, the revenue is in appeal before us and had raised the similar ground for the assessment years 2004-05 & 2005-06 as stated hereinabove. 5. Facts in the case of Gopal Das Kothari (HUF) The brief facts of this issue is that a search and seizure operation was conducted on 25.4.2007 u/s 132 of the Act in the Kothari group of cases. The Kothari group is principally controlled and managed by the following persons who are the coparcenars of the assessee HUF of which Shri Dau Dayal Kothari is the Karta pursuant to the death of Shri Gopal Das Kothari:- 1. Shri Dau Dayal Kothari 2. Shri Bithal Das Kothari 3. Shri Krishna Kumar Kothari 4. Shri Kamal Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove. 6. Facts in the case of Sajjan Kumar Patwari (HUF) The brief facts of this issue is that a search and seizure operation was conducted on 3.5.2007 u/s 132 of the Act in the Rashmi group of cases. The assessee is one of the HUFs belonging to this group. In the course of search, the assessee was found to be in possession of undisclosed income and accordingly the assessee gave disclosure statement u/s 132(4) of the Act offering substantial income as below:- Assessment Year Disclosure amount 2004-05 5,00,000 2005-06 29,50,171 2006-07 71,91,278 6.1. The details of income declared in the return filed u/s 139(1) of the Act for each assessment year , income offered in disclosure statement u/s 132(4) of the Act for each assessment year pursuant to the search , income declared in the return filed u/s 153C of the Act for each assessment year , additional income offered during the course of assessment proceedings and assessed income thereon are tabulated as below:- Particulars ASSESSMENT YEARS 2004-05 2005-06 2006-07 Income admitted u/s 139(1) 143500 139950 267060 Disclosure made u/s 132(4) 500000 2950171 7191278 Income disclosed u/s 153C 643500 3091120 7458340 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for all the assessment years prior to the year of search. He also argued that even the additional disclosure of income made by the abovementioned assesses for certain assessment years were made voluntarily before any detection by the department. He further argued that nothing in the section 271(1)(c ) order of the Learned AO suggests that the additional income was detected by the department. With regard to arguments of Learned DR that but for the search this undisclosed income could not have been unearthed, the Learned AR argued that this issue is squarely covered in favour of the assessee by the decision of the Hon'ble Calcutta High Court in CIT vs Amardeep Singh Dhanjal in ITA No. 39 of 2010 dated 11.1.2013. He further argued that the expression 'to be furnished before the expiry of time specified in subsection (1) of section 139' used in Clause 2 of Explanation 5 to section 271(1)(c ) of the Act might create some difficulty for claiming immunity and he argued that this very question has been answered in favour of the assessee by the Jurisdictional Calcutta High Court in the case of CIT vs Brijendra Gupta in ITA No. 330 of 2009 dated 8.6.2015 and took us to the relevant operativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in the case of CIT vs Mahendra C Shah reported in (2008) 299 ITR 305 (Guj). The operative portion of the aforesaid judgements are not reproduced herein for the sake of brevity but the same has been considered elaborately in the judgement rendered by this tribunal as stated supra. By placing reliance on the aforesaid decisions, this tribunal in the case of Narendra J Thacker (supra) had held :- - the assessee has cumulatively satisfied all the conditions stipulated in Clause 2 of Explanation 5 to Section 271(1)( c) of the Act and hence entitled for immunity from levy of penalty for all the assessment years under appeal; - the assessee had made voluntary disclosure of Rs. 2,50,000/- and Rs. 4,72,603/- for the Asst Years 2001-02 & 2002-03 during the course of search assessment proceedings after filing the return u/s 153A of the Act but before any detection by the department and the same is considered only as a revision of the disclosure made u/s 132(4) followed by filing of returns u/s 153A of the Act; - the expression 'to be furnished' mentioned in Clause 2 of Explanation 5 to Section 271(1)(c ) has to be construed as 'required to be furnished u/s 153A of the Act' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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