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TMI Blog2016 (8) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness and residential premises on 5-3-2009. During the course of search statement u/s.132(4) was recorded wherein assessee has offered Rs. 3 crores for the previous year ending on 31-3-2008 relevant to assessment year 2008-09 on estimate basis. The return of income was accepted by the AO after making small disallowance in respect of some of the expenses incurred. Thereafter the AO also levied penalty under Explanation 5A to Section 271(1)(c) of the I.T.Act. 3. It was contended by ld. AR that pursuant to search action on 5-3-2009 all the proceedings get abated and assessee had no choice but to wait for receipt of notice u/s.153A. The AO issued notice u/s.153A, which was received only after 31-3-2010 giving the time of 20 days. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omes to more than Rs. 1 crore. Against these payment of taxes assessee filed return of income declaring Rs. 4,13,11,513/- which almost covers the corresponding TDS & Advances Tax. Since both the taxes were paid not only before the search action but before the year ended on 31-3-2008, the ld. AO's contention that assessee has disclosed this income after the search is not correct and hypothetical. 5. The AO did not convince with the assessee's argument and levied penalty under the provisions of Explanation 5A to Section 271(1)(c) of the I.T.Act. 6. By the impugned order, CIT(A) confirmed the action of AO, against which assessee is in further appeal before us and has raised following grounds :- 1. On the facts and circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. Ultimately the assessee received notice u/s. 153A dated 30/03/2010 in April 2010. In response to the said notice assessee duly filed his return within the time stipulated. Hence from the series of events it can be said that the assessee filed his return of income within the due date stipulated u/s. 139(4) of the IT Act 1961 r.w.s. 153A of the IT Act 1961. Reliance was placed on latest Chennai Tribunal decision, wherein the Tribunal have held that return filed in response to notice u/s. 153A should be treated as filed u/s. 139(1). It was contended by ld. AR that from the aforesaid facts your honour will appreciate and admit that Explanation 5A to Section 271 (1)(c) is not applicable to the impugned appellant hence it cannot be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see filed return of income declaring 2,00,04,116/- which almost covers the corresponding TDS & S.A. Tax. Since both the taxes were paid not only before the search action but before the due date of filing of ROI, and covers the full income disclosed in ROI filed the Ld AO's contention that assessee has disclosed this income only after the search is not correct and hypothetical. Hence it cannot be said that there is concealment of income. 9. We have considered rival contentions, carefully gone through the orders of authorities below and found from the record that in both the years under consideration the corresponding income with respect to the tax deducted at source and also the amount of advance tax paid by the assessee not only before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the AO has made protective addition of Rs. 56,07,000/- u/s.69C. The CIT(A) has dismissed assessee's appeal as being not admittable on the plea that taxes have not been paid. Ld. AR placed on record details of tax paid by him and contended that as per the provisions of Section 199 of the Act, credit for tax deducted at source has to be given, irrespective of the fact that there was delayed payment of TDS by the deductor. For this purpose, reliance was placed on the decision of Hon'ble Gauhati High Court in the case of Omprakash Gattani, 242 ITR 638. In view of these facts, it was contended that assessee has paid entire tax amount and that the appeal was wrongly not been admitted by the CIT(A) u/s.249A. 14. Considering the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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