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TMI Blog2022 (7) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... iminating evidence available in that behalf before penalty could be imposed. Second, Section 153A of the Act is a complete code, the provisions of section 139 of the Act, which concerns original returns, would not be applicable. In other words, the so-called revised return filed, would be the original return. Third, if Explanation 5 to Section 271(1) of the Act were to be relied upon, the revenue would have to establish that the assets, such as money, bullion etc. were seized during the search conducted on the premises of the assessee and that the said assets related to the income of the assessee for the relevant assessment years. Explanation 5, as noted in the said judgement, was inserted in the statute by Taxation Laws (Amendment) Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (AY) 2007-2008, disclosed the taxable income as Rs.11,76,296/-. 2.1 The record also shows that on 10.12.2012, search under Section 132 of the Income Tax Act, 1961 [in short Act ] was carried out, whereupon notice under Section 153A of the Act was issued. 2.2 Consequent thereto, the respondent s/assessee s case was picked up for scrutiny and notices under sections 143(2) and 142(1) of the Act, along with questionnaire were issued by the Assessing Officer (AO). 2.3 The AO passed an assessment on 27.03.2015, under section 143(3) of the Act. The AO pegged the taxable income at Rs. 9,61,76,296/-. With the addition of Rs 9,50,00,000/-, on account of unaccounted cash receipts. 2.4 Thereafter, penalty proceedings were initiated against the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A to file fresh return of his income. Thereafter, the assessee filed revised returns and the return filed by the assessee under Section 153A was accepted as such by the A.O. However, the A.O. was of the opinion that inasmuch that the income disclosed by the assessee under Section 153A was higher than the income in the original return filed under Section 139(1) and since in his view, such disclosure of income was a consequence of the search conducted on the assessee, there was concealment of income which attracted Section 271(1)(c) of the Act. Therefore, the question that needs to be answered is whether penalty is to be levied automatically whenever the assessee declares a higher income in his return filed under Section 153A in comparison to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted and hence, such disclosure cannot be said to be voluntary . Hence, in the A.O. s opinion, the assessee had concealed his income. However, the mere fact that the assessee has filed revised returns disclosing higher income than in the original return, in the absence of any other incriminating evidence, does not show that the assessee has concealed his income for the relevant assessment years. On this point, several High Courts have also opined that the mere increase in the amount of income shown in the revised return is not sufficient to justify a levy of penalty. xxx xxx xxx 19. The whole matter can be examined from a different perspective as well. Section 153A provides the procedure for completion of assessment where a search is initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that the revised return filed under Section 153A takes the place of the original return under Section 139, for the purposes of all other provisions of the Act. This is further buttressed by Section 153A (1)(a) which reads: Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1984, w.e.f. 01.10.1984. 7. In our opinion, the conclusion reached by the Tribunal in the instant case that the notice for imposition of penalty under Section 271(1) (c) of the Act, did not specify which limb of the said provision the penalty was sought to be levied, is covered by the following decisions, which includes a decision rendered by a coordinate bench of this Court. (i) CIT and Anr. v M/s SSA s Emerald Meadows, passed in ITA No. 380/2015, dated 23.11.2015. (ii) Commissioner of Income Tax v Manjunatha Cotton and Ginning Factory (2013) 359 ITR 565 (Kar.) (iii) PCIT vs M/s Sahara India Life Insurance Company Ltd., passed in ITA No.475/2019, dated 02.08.2019. 7.1. To be noted, the Special Leave Petition filed against the judgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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