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2013 (1) TMI 285 - AT - Income TaxImmunity under Explanation 5 to section 271(1)(c) - Search and seizure conducted on 23-08-2006 - ROI filed u/s. 153A r.w s. 139(1), filed on 28-08-2007 - Furnishing inaccurate particulars of income - Undisclosed income - Penalty for concealment - Held that:- As per clause 2 of Explanation 5 section 271(1)(c), i.e., the provision under which the assessee seeks immunity, and which has been found applicable by the first appellate authority, is applicable only to cases where the due date for furnishing the return of income u/s. 139(1) has not expired as on the date of search, which in the instant case is 23-08-2006. Immunity under Explanation 5 to section 271(1)(c) was not maintainable for three reason. First, inapplicability of the provision for the relevant years; the due date for filing the return u/s. 139(1) having expired or elapsed as on the date of search; rather, much prior thereto. - Secondly, for non-satisfaction of the condition of payment of tax and interest by the due date of filing the return of income u/s. 153A in response to notice thereunder pursuant to search u/s. 132, or even the actual date of filing of the return thereunder; being, rather, only after the date of assessment - Thirdly, as aforesaid, even if the CIT(A) held the view that the extended period for the payment of admitted demand is available, such a view, being in any case contentious and not free from debate, could not have been taken by him in the rectification proceedings u/s. 154. So, however, the matter having been conceded to by the ld. DR during hearing, admitting to the assessee's case for the relevant years being squarely covered by Explanation 5 to section 271(1)(c), we, as aforesaid, on the basis of said concession, dismiss the Revenue's appeal for both the years. We decide accordingly. - In favour of assessee
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