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TMI Blog2019 (4) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... these cases. Therefore, we allow all these appeals and deleted all the penalties impugned in these appeals. - Decided in favour of assessee. - ITA No. 2662 /Ahd/2017, ITA No. 2669, 2670 and 2671/Ahd/2017, ITA No. 2663 to 2668/Ahd/2017 - - - Dated:- 8-4-2019 - Shri Rajpal Yadav, Judicial Member And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri A.L. Thakkar, AR For the Revenue : Shri O.P. Pathak,Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER : Present bunch of ten appeals was heard separately i.e. on 28.3.2019 and 29.3.2019 against the orders of the ld.CIT(A) passed for the above assessment years. Since common issue is involved in all these appeals, we dispose of all them by this consolidated order. 2. Short common question involved in all these appeals is, whether to visit the appellants with penalty under section 271(1)(c) r.w. Explanation 5A, there should be certain assets, such as money, bullion, jewellery and diary be found in the possession of the assessee during the search representing undisclosed income declared in response to the notice issued under section 153A of the Income Tax Act, 1961 ? 3. Grievance of all the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, bullion, jewellery or other valuable article or thing (hereafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilising (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 search and,- (a) where the return of income for such previous year has been 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 filed the return, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income. 271AAA. (1) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of filing the return of income under sub-section (1) of section 139 for such year has not expired before the date of search and the assessee has not furnished the return of income for the previous year before the said date; or (ii) in which search was conducted . 6. A perusal of both these sections together would indicate that the immunity akin to Explanation 5 is available to the assessee under Explanation-5A also, if he fulfills the conditions narrated in section 271AAA. The Explanation appended to Section 271AAA provides the definition of undisclosed income and specified previous year. A perusal of the expression specified previous year would indicate that the year of search and immediately earlier year, if due date of filing of the return has not expired and income-tax return for such year has not been filed. Since the assessment years involved before us are the Asstt.Years 2007- 2008 to 2012-13, the due date for filing of the returns was expired before the search action. Thus, these years do not fall within the ambit of specified years . Since the period of these assessment years do not fall within the expression specified year provided in Section 271AAA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional incomes declared by the assessee are representing any money, bullion, jewellery or impounded any diary. In other words, it cannot be construed that some assets were found during the course of search representing that income which has been declared by the appellants. Somewhat similar and identical issue has been considered by the Hon ble Delhi High Court in the case of Pr.CIT Vs. Neeraj Jindal, 393 ITR 1. The following finding of Hon ble Delhi High Court is worth to note. It reads as under: 26. Now for the Revenue to invoke Explanation 5, it would have to prove that its requirements are clearly fulfilled in the present case. In order for Explanation 5 to apply, it is necessary that there must be certain assets (such as money, bullion etc.) found in the possession of the assessee during the search, and that the assessee must claim that such assets have been acquired by him by utilising (wholly or in part) his income. Moreover, such income must be in relation to a particular previous year that has either ended before the date of the search or is to end on or after the date of the search and such income is declared subsequently in the return of income filed after the searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the possession of the assessee; and so the cash was admittedly, not seized during the relevant assessment years in consideration before the Tribunal. In other words, while the assessee had surrendered undisclosed income, the cash was seized during search in A.Y 2007-2008, and not in the relevant assessment years. However, in the relevant assessment year under consideration in the instant case, the assessee made an addition of ₹ 21,65,932/- in the return filed pursuant to notice under section 153A. The ITAT held that Explanation 5 to section 271(1) of the Act could not be invoked in assessment years 2005-06 2006-07, which are under consideration in this case, merely on the presumption that the assessee might have been in possession of the seized cash throughout the period covered by the search assessments. The learned ITAT also held - The income offered to tax u/s 153A for assessment years 2005- 06 and 2006-07 cannot be said to be based on assets seized, because from the assessment order, it is clear that search was on 11.01.2007 (i.e AY 2007- 08), the cash seized during search was only to the tune of ₹ 5,26,530/- and it is not emerging from the records ..... X X X X Extracts X X X X X X X X Extracts X X X X
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