9911796707
TMI Blog2016 (8) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... nd also specify in the statement, manner in which such income has been derived and pay the tax together with interest, if any, in respect of such undisclosed income. We find that ld. CIT (A) has given a finding of fact that while filing the return, an amount of ₹ 78,50,000/- was declared in the year under appeal. Similarly, the amount of ₹ 13,00,000/- out of pocket diary expenses which was part of the total surrender of ₹ 1.40 crores made in the course of statement under section 132(4) was also declared in the year under appeal. Hence the total surrender in the year in hands of the appellant, amounted to ₹ 91,50,000/- which was accepted by the AO in the order passed under section 153A/143(3) of the Act. This fact is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12) 348 ITR 561 (SC) and also decision of Hon ble Gujarat High Court reported in 299 ITR 305 (Guj.) deleted the penalty. 3. Now the revenue is in appeal before us. 4. The ld. D/R argued that the ld. CIT (A) was not justified in deleting the penalty. He submitted that although the assessee had offered undisclosed income for taxation in his return of income, however, no tax was deposited on this income. The AO observed that the income was declared in the return of income but not at the time of search. 4.1. On the contrary, ld. Counsel for the assessee has supported the order of ld. CIT (A) and submitted that the facts as narrated in the penalty order are contrary to record. He submitted that the ld. CIT (A) has examined the entire fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition precedent for availing immunity under Explanation 5 to sec. 271(1)(c), where the search was initiated before 01.06.2007. It has been so held by the Apex Court in the case of Gebi Lal (348 ITR 361). It was also held by the Gujarat High Court that for the purposes of Explanation 5 to sec. 271(1)(c), it is sufficient if the disclosure is made during search and tax is paid before completion of assessment (299 ITR 305). Hence, the fact that tax was not deposited before filing of the return would not affect the immunity available to the appellant, as the search was initiated on 03.05.2007 in this case. In view of these facts, it is apparent that the case of the appellant is covered by the provisions of explanation 5 to sec. 271(1)(c). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been derived and pay the tax together with interest, if any, in respect of such undisclosed income. We find that ld. CIT (A) has given a finding of fact that while filing the return, an amount of ₹ 78,50,000/- was declared in the year under appeal. Similarly, the amount of ₹ 13,00,000/- out of pocket diary expenses which was part of the total surrender of ₹ 1.40 crores made in the course of statement under section 132(4) was also declared in the year under appeal. Hence the total surrender in the year in hands of the appellant, amounted to ₹ 91,50,000/- which was accepted by the AO in the order passed under section 153A/143(3) of the Act. This fact is not controverted by the revenue by placing any other material on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 that any money, bullion, jewellery or other valuable article or thing found in his possession or under his control, has been acquired out of his income which has not been disclosed so far in his return of income to be furnished before the expiry of time specified in clause (a) or clause (b) of sub-section (1) of section 139, and also specifies in the statement the manner in which such income has been derived and pays the tax, together with interest, if any, in respect of such income. Explanation 5 is a deeming provision. It provides that where, in the course of search under section 132, the assessee is found to be the owner of unaccounted assets and the assessee claims that such assets have been acquired by him by utilizing wholly or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 132(4), the manner in which such income stood derived. Admittedly, the second condition, in the present case also stood satisfied. According to the Department, the assessee was not entitled to immunity under clause (2) as he did not satisfy the third condition for availing of the benefit of waiver of penalty under section 271(1)(c) as the assessee failed to file his return of income on July, 31, 1987, and pay tax thereon particularly when the assessee conceded on August 1, 1987, that there was concealment of income. The third condition under clause (2) was that the assessee had to pay the tax together with interest, if any, in respect of such undisclosed income. However, no time limit for payment of such tax stood prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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