9911796707
TMI Blog2018 (4) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... by deleted. - Decided in favour of assessee. - ITA No.3102/Del./2014 - - - Dated:- 19-4-2018 - SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER For The ASSESSEE : Dr. Rakesh Gupta, Advocate For The REVENUE : Shri S.R. Senapati, Senior DR ORDER PER KULDIP SINGH, JUDICIAL MEMBER : The appellant, Shri Navneet Jhanb (hereinafter referred to as the assessee ) by filing the present appeal, sought to set aside the impugned order dated 30.04.2014 passed by Ld. CIT (Appeals), Gurgaon qua the assessment year 2006-07 on the grounds inter alia that :- 1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law in upholding the action of the Ld. A.O. in sustaining penalty to the extent of ₹ 11,54,240/- u/s 271(1)(c) and that too without giving an opportunity of being heard on the aspect. 2. That in any case and in any view of the matter action of Ld. CIT(A) in confirming the action of Ld. A.O in making the impugned penalty is bad in law and against the facts and circumstances of the case. 3. That having regard to the facts and circumstances of the case, Ld. A.O. has e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the authorized representatives of the parties, the sole question arises for determination in this case is :- as to whether the assessee has concealed particulars of income or has furnished inaccurate particulars of income during assessment proceedings? 7. Ld. AR for the assessee challenging the impugned order contended inter alia that the penalty order is not sustainable because the AO has issued a very vague and ambiguous notice u/s 271(1)(c) of the Act; that the assessee has made voluntary disclosure to buy peace and avoid litigation and relied upon the decisions cited as CIT vs. Radha Kishan Goel (2005) 278 ITR 454 (All.) and CIT vs. Mahendra C. Shah (2008) 299 ITR 305 . 8. However, on the other hand, ld. DR for the Revenue to repel the arguments addressed by the ld. AR for the assessee contended that as per Explanation (5) to section 271(1)(c) of the Act, the assessee is deemed to have concealed the income as he has surrendered the amount when cornered during the search and seizure operation; that notice initiating penalty proceedings u/s 271(1)(c) is just an intimation to attend the penalty proceedings and is not a satisfaction of the AO and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, it is for the authorised officer to record the statement in his own way. Therefore, it is not expected from the person to state those things, which are not asked by the authorised officer. During the course of search person is so tortured, harassed and put to a mental agony that he loses his normal mental state Of mind and at that stage it cannot be expected from a person to preempt the statement required to be given in law as a part of his defence. Under s. 132(4}, unless the authorised officer puts a specific question with regard to the manner in which income has been derived, it is not expected from the person to make a statement in this regard and in case in the statement the manner in which income has been derived has not been stated but has been stated subsequently, that amounts to the compliance with Expln. 5(2). In case, there is nothing to the contrary in the statement recorded under s. 132 (4), in the absence of any specific statement about the manner in which such income has been derived, it can be inferred that such undisclosed income was derived from the business which he was carrying on or from other sources. The object of the provision is achieved by mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived at the earliest point of time only in the course of assessment proceedings and for that purpose the AO is required to verify and ascertain whether the income has been declared and tax paid thereon. For the purposes of Expln. 5, which comes into play only in case of search and seizure proceedings, return of income per se would have no relevance if one reads entire Expln. 5, including the two Exceptions. The emphasis on disclosure in the return of income is relevant only for the purposes of avoiding the deeming fiction of concealment in relation to the previous year which has already ended before the date of search but return of income for such year had not been furnished, or where return has been filed such income has not been disclosed. Insofar as a previous year which is to end on or after the date of search return of income would have hardly any relevance because the Explanation itself stipulates that regardless of such income having been declared in any return of income furnished on or after the date of search the assessee would become liable to imposition of penalty, the only exception being a declaration at the time of search. In the present case, admittedly the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding the conditions stipulated by Exception No.2 while making statement under s. 132(4). The view taken by the Tribunal to the effect that even if the statement does not specify the manner in which the income is derived, if the income is declared and tax thereon paid, there would be substantial compliance not warranting any further denial of the benefit under Exception No.2 in Expln. 5 is commendable. Hence, the Tribunal was justified in coming to the conclusion that insofar as the value of diamonds was concerned, the assessee having made a declaration under s. 132(4) and paid taxes thereon, had fulfilled all the conditions for availing the benefit of immunity from levy of penalty as provided under Expln. 5 to s. 271(1)(c). In absence of any infirmity in the order of Tribunal on this count the question referred is answered in the affirmative i.e. in favour of the assessee and against the Revenue.-CIT vs. Radha Kishan Goel (2006) 200 CTR (All) 300 : (2005) 278 ITR 454 (All) relied on; Mahendra Chimanlal Shah vs. Asstt.CIT (1994) 49 TTJ (Ahd) 677 affirmed. 12. Aforesaid cases, CIT vs. Radha Kishan Goel and CIT vs. Mahendra C. Shah (supra), relied upon by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
