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TMI Blog2017 (6) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... here, in our considered opinion, the assessee has fulfilled the third condition also. We, therefore, do not find any merit in the levy of penalty. We, accordingly set aside the findings of the ld. CIT(A) and direct the A.O. to delete the penalty - Decided in favour of assessee. - ITA. No: 343/RJT/2013 - - - Dated:- 5-6-2017 - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER For The Appellant : Shri M.J. Ranpura, A.R. For The Respondent : Shri Yogesh Pandey, Sr. D.R. ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. This appeal by the Assessee is preferred against the order of the Ld. CIT(A)- IV, Ahmedabad dated 14.08.2013 pertaining to A.Y. 2010-11. 2. The only grievance of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntions of the assessee did not find any favour with the A.O. who was of the firm belief that the assessee did not comply with the provisions of section 271AAA of the Act and was, therefore, liable to pay penalty of ₹ 41.20 lacs. 7. The assessee unsuccessfully carried the matter before the ld. CIT(A). 8. Before us, the ld. counsel for the assessee drew our attention to the decision of the Hon ble Jurisdictional High Court of Gujarat in the case of Mahendra C. Shah 299 ITR 305 and pleaded that since no specific question was asked insofar as the manner in which the income was derived by the assessee, no adverse view can be taken on this account. The ld. counsel drew our attention to the applications filed before the A.O./Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned. This is also substantiated by going through the copy of the statement recorded u/s. 132(4) of the act exhibited at pages 9 to 18 of the paper book. The findings of the Hon ble Jurisdictional High Court in the case of Mahendra C. Shah (supra) reads as under:- 15. Insofar as the1 alleged failure on the part of the assesses to specify in the statement under section 132(4) of the Act regarding the manner in which such income has been derived, suffice it to state that when the statement is being recorded by the authorized officer it is incumbent upon the authorized officer to explain the provisions of Explanation 5 in entirety to the assessee and the concerned authorized officer cannot stop short at a particular stage so as to permi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax liability. The total tax payment of the assessee can be understood from the following chart:- Particulars Date Amount Total tax as per return of income 1,32,21,705/- Interest as per return of income 9,34,824/- Total Tax Interest 1,41,56,529/- Less: Appropriation of Seized Cash 30.03.2010 (09.05.2012) 45,00,000/- TDS 22,908/- Advance Tax Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation 5 to s. 271(1)(c) is a deeming provision which provides that if, in the course of search u/s 132, the assesses is found to be the owner of unaccounted assets and he claims that such assets have been acquired by him by utilizing, wholly or partly, his income for any previous year which has ended before the date of search or which is to end on or after the date of search, then, in such a situation, notwithstanding that such income is declared by him in any return of income furnished on or after the date of search, he shall be deemed to have concealed the particulars of his income for the purposes of imposition of penalty u/s 271(1)(c). Sub-clause (2) confers an immunity from penalty if three conditions are fulfilled, namely, (I) th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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