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TMI Blog2016 (1) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to the earlier assessment proceedings. There is no variation between income returned and income assessed in these cases. Consequently, it cannot be held that there is any ‘concealed income’ or ‘furnishing of inaccurate particulars of income’ so as to attract proceedings u/s. 271(1)(c). In view of this, levy of penalty u/s. 271(1)(c) is not warranted and accordingly, the impugned orders of the AO are cancelled. - Decided in favour of assessee. - I.T.A. No. 522/HYD/2015, I.T.A. No. 523/HYD/2015 - - - Dated:- 18-11-2015 - SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER For The Assessee : Shri K.C. Devdas, AR For The Revenue : Shri B. Kurmi Naidu, DR ORDER These two appeals by respective assessees are against the orders of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the return filed which was accepted. Similarly, in the case of Shri Raghuveer Singh even though was not covered by the Section 132, however, declared incomes from AY. 2002-03 to 2008-09 under the head commission , capital gains , salary in respective assessment years. As declared before the DY. Director of Income Tax, Investigation, Hyderabad, assessee filed return for the AY. 2003-04 declaring commission income of ₹ 69,600/-, capital gains of ₹ 5,000/-, salary income of ₹ 12,000/-, total being 82,100/-. 3. While accepting the return filed in the respective assessee s cases, AO was of the view that since these assessees were not income tax assessees earlier and since the incomes have been declared consequent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable. It was submitted that conditions u/s. 271(1)(c) were not applicable in both the cases as these proceedings u/s. 153A/153C are independent and has no relation to other assessment proceedings. Further, it was submitted that invoking Explanation-5A, there should be a finding that assessee is the owner of any money, bullion, jewellery or other article or thing or any income based on any entry in any Books of Account or other documents or transactions. He further referred to the declaration given before the Dy. Director to submit that assessee has estimated incomes, therefore, penalty cannot be levied on estimated incomes. Ld. DR however, relied on the orders of the AO and CIT(A). 7. I have considered the rival contentions and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under section 132 on or after the 1st day of June, 2007, the assessee is found to be the owner of,- (i) any money, bullion, jewellery or other valuable article or thing (hereinafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilizing (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 documents or transactions and he claims that such entry in the books of account or other documents or transactions represents his income (wholly or in part) for any previous year, which has ended before the date of the search and the due date for filing the return of income for such year has expired an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sents his income (wholly or in part) 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 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 sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income. 10. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, assessee is not found to be the owner of either any money/bullion/jewellery or other available article or thing or any income based on any entry in Books of Account or other documents or transactions. Thus, Explanation- 5A either pre-amendment or post-amendment is not applicable to the facts of the case. Therefore, CIT(A) s order confirming the penalties invoking the Explanation-5A in both the cases is without satisfying the conditions therein and therefore, to that extent, CIT(A) s order is to be set aside. 13. There were no incriminating material in both cases. Particularly in the case of Shri Raghuveer Singh, as no search has occurred in his place, Explanation-5A cannot be invoked. In the case of Shri B. Ramdas Goud, even though s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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