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TMI Blog2018 (1) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, that the assessee could not be deemed to have concealed the particulars of his income as per Explanation-5 also since the additional income declared in the return of income filed u/s 153A did not pertain to any asset i.e money, bullion, jewellery or other valuable article or thing found in the possession of the assessee. In this context, it was held that no penalty u/s 271(1)(c) of the Act could not be imposed. In the present case, the assessee is clearly deemed to have concealed particulars of his income as per the applicable Explanation 5A to section 271(1)(c) of the Act as held above by us.Therefore the fact of having disclosed the entire income in the return filed u/s153A will be of no assistance to the assessee.Such an interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty to the tune of ₹ 6,09,370/-. 4. Brief facts relevant to the issue are that the assessee had filed its original return of income u/s 139(1) of the Act on 21.3.2006 declaring income of ₹ 1,52,180/. Thereafter search, u/s 132 of the Act, was conducted on the assessee on 11.9.2007. In response to notice u/s 153A, return declaring income of ₹ 19,52,180/- was filed by the assessee for the impugned assessment year, which included a sum of ₹ 18 lacs on account of miscellaneous income surrendered. The assessment was completed u/s 153A r.w.s. 143(3) of the Act, on the returned income of ₹ 19,52,180/-. During assessment proceedings the assessee submitted that surrender had been made to account for the advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed under Explanation-5A to section 271(1)(c) of the Act since the surrendered income of ₹ 18 lacs had not been declared in the original return filed u/s 139(1) of the Act. He, therefore, confirmed the order of the Assessing Officer. 6. Aggrieved by the same, the assessee has now come up in appeal before us. During the course of hearing before us, the Ld. counsel for assessee reiterated the submissions made before the lower authorities and stated that since the surrendered income had been disclosed in the return filed u/s 153A of the Act, no penalty u/s 271(1)(c) of the Act was leviable. The Ld. counsel for assessee referred to the following case laws in support of his contentions: 1) DCIT Vs. Purti Sakhar Karkhana (2013) 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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,-- (a) where the return of income for such previous year has 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had attributed the same to the income of the impugned year, surrendering a sum of ₹ 18,00,000/- on account of the same, in the return filed in response to notice u/s 153A of the Act. Also the original return of income for the impugned year had been filed before the date of search on 31.3.2006,i.e before the date of search which was conducted on 11.9.2007, and the said return undisputedly did not reflect such income. 12. Clearly, the assessee, is covered by the Explanation-5A to section 271(1)(c) of the Act and the Ld.CIT(Appeals) has correctly held the assessee to have concealed particulars of his income relevant to the amounts surrendered of ₹ 18 lacs in the return of income. The Explanation-5A clearly states that if the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases referred to by the Ld .Counsel for the assessee, it was held that for the purpose of imposition of penalty u/s 271(1)(c) of the Act, no reference could be made to the returned income u/s 139 of the Act and it was only the income returned u/s 153A, as per the scheme of search assessment, which could be taken cognizance of since the scheme of search assessment as designed by the Legislature did not prescribe to take into account the earlier assessment proceedings whether abated or not. Further it was held, in all those cases, that the assessee could not be deemed to have concealed the particulars of his income as per Explanation-5 also since the additional income declared in the return of income filed u/s 153A did not pertain to any ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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