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TMI Blog2012 (12) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,33,073/- in the original return filed on 31.10.2005. Subsequently, a search was carried out in the case of the assessee u/s 132 of the Income Tax Act, during the course of which, it was found that the assessee had not declared income in respect of several projects. The Managing Partner Shri Chetan N. Parekh in his statement u/s 132(4) dated 05.10.2006, in response to question No.15, declared sum of ₹ 59.56 lacs as income of the assessee, for the Assessment Year 2005-06 on account of profit from real estate projects. Thereafter, the assessee in the return filed u/s. 153A declared total income of ₹ 68,08,799/- on 07.05.2007 and assessment was completed u/s 153A/ 143(3) on 31.12.2008 in which the total income declared by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of difference of opinion. It was pointed that the assessee was consistently following the method of offering the income from various buildings after completion of construction and on grant of occupation certificate by the authorities. The search party was of the opinion that such income was required to be offered on completion of construction of buildings even if the occupation certificate might have not been received from the Municipal Corporation. The assessee did not want to enter into any dispute and to avoid litigation on the issue, had offered the concerned income to tax in the year under appeal. It was not the case that the concerned income was unaccounted income of the assessee. All entries of sales of units were duly rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer that the assessee would not have declared the income if the search had not been conducted, the CIT(A) held that the penalty would not be attracted only for the reason that the income had been declared in pursuance to search when Explanation 5 in section 271(1)(c) itself provided immunity from levy of penalty CIT(A), therefore, set aside the order of Assessing Officer levying penalty aggrieved by which the assessee is in appeal. 3. Before us the Ld. Departmental Representative appearing for the Revenue assailed the order of CIT(A). It was submitted that the assessee had declared the additional income only after search and therefore, it was not a case of voluntary disclosure and, accordingly, penalty was justified. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of a project after receipt of occupation certificate and on that basis the assessee had declared total income of ₹ 4,33,073/-, for the relevant year in the original return. Thereafter on the date of search on 04.10.2006, the assessee when pointed out by the department that income should be declared on the basis of completion of project even if no occupation certificate had been received, the assessee to avoid any litigation declared addition income of ₹ 59.56 lacs, and assessment had been completed on the basis of income declared by the assessee in the return u/s.153A. 4.1 The issue is whether penalty u/s 270(1)(c) can be levied in respect of such declaration of income. The Explanation 5A(ii) provides that in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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