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TMI Blog2019 (10) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... est on FDR then the suo moto declaration of such income in the return of income filed U/s 153A of the Act would not attract the penal provision U/s 271(1)(c) of the Act. Assessee not declared the said interest income in the return of income filed U/s 153A of the Act then even if the A.O. in the course of assessment proceedings, detected such interest income on FDR and made addition on account of the interest on FDR, the addition so made by the A.O. would not sustain or survive due to the reason that the assessment for five assessment years out of the six under consideration were not pending as on the date of search and consequently the A.O. would have no jurisdiction to make the addition in absence of any incriminating material found or seized during the course of search revealing such income. Hence, when the addition on account of interest on FDR is not sustainable in law then the suo moto declaration of the income by the assessee would not amount to furnishing of inaccurate particulars of income or concealment of particulars of income rather it would be a bonafide explanation/cause for not furnishing income in the return of income filed U/s 139(1) - Penalty levied U/s 271(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3A of the Act in respect of six assessment years under consideration. The assessee filed return of income in response to notice U/s 153A of the Act and declared additional income on account of interest accrued on FDR. The return of income filed U/s 153A was accepted by the A.O. for all the six assessment years and no addition was made. However, the A.O. initiated penalty proceedings U/s 271(1)(c) of the Act and levied penalty in respect of additional income declared by the assessee in the return of income filed in response to notice U/s 153A of the Act on account of interest on FDR. The assessee challenged the action of the A.O. levying the penalty U/s 271(1)(c) of the Act but could not succeed. 3. Before the Tribunal, the ld AR of the assessee has submitted that there was no incriminating material seized or found during the course of search and seizure action disclosing any income on account of interest on FDR. However, the assessee suo moto declared interest income on FDR in the return of income filed U/s 153A which was accepted by the A.O., therefore, when the assessee has declared income suo moto and voluntarily and no addition was made by the A.O. while comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome on account of interest on FDR. The details of the income declared in the return filed U/s 139(1) of the Act and income declared in the return filed U/s 153A are as under: S. No. A.Y. Income declared in return u/s 139(1) Income declared in return u/s 153A Additional income declared Assessed income by ld. AO Addition made by ld. AO 1. 2007-08 4,02,140/- 5,84,480/- 1,82,340/- 5,84,480/- Nil 2. 2008-09 3,74,500/- 5,67,070/- 1,92,570/- 5,67,070/- Nil 3. 2009-10 4,94,730/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any reference either in the assessment order or in the penalty order to the seized material much less incriminating material, therefore, the condition precedent for invoking Explanation 5A of Section 271(1)(c) as set out in clause (i) and (ii) are not satisfied. Only in the case where in the course of search and seizure action U/s 132 of the Act, the assessee is found to be the owner of any money, bullion, jewellery or other valuable article or thing or any income based on any entry in the books of account or other documents or transactions represents his income for any previous year if such income was not declared by the assessee in the return of income filed prior to the date of search then even if such income is declared in the return of income filed after the date of search, it will be deemed that the assessee has concealed his particulars of income or furnished inaccurate particulars of such income. In absence of discovery of any money, bullion, jewellery or other valuable article or thing as well as any income based on any entry in the books of account or other documents or transactions, the income offered by the assessee to tax in the return of income file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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