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2012 (8) TMI 812 - HC - Income TaxPenalty imposed u/s 271(1)(c) - additional income disclosed in response to the notice u/s 153 C - assessee contested that levy of penalty to be under Explanation 5 of Section 271(1)(c) - Held that:- It was totally unnecessary on the facts of these cases to invoke Explanation 5 to Section 271(1)(c) as income not disclosed in the return u/s 139 but detected subsequently and established to be assessee's income and assessed accordingly is concealed and fully covered by Section 271(1)(c). There was absolutely no need to try and bring the cases under Explanation 5 of section 271(1)(c). The proposition that assessee has an obligation to show correct income under Section139 and if it is not done, Revenue is entitled to invoke provision to Section 271(1)(c) notwithstanding that correct income is shown in response to notice under Section 148 of the IT Act or in some other proceedings is well established and is beyond doubt. For the purpose of present proceeding, there is no material difference whether the returns were filed in response to notice under Section 148 or under Section 153C of the IT Act. As in the present case the assessee did not disclose the income or the assets any time in the returns filed by them. Furthermore, the search conducted was not in their premises, as it was in the premises of someone else. Having regard to the restricted nature of the phrase “books of account” the particulars found in the premises of someone else could not be said to have been “in the course of search”, because the present assessee's premises were not searched. Nor did they make any disclosure or statement, or surrender their income, during the course of search. They filed a return, which for the first time, disclosed the hitherto concealed income. Their explanations were not of the kind which therefore, fell within the exception to Explanation 5 of Section 271 (1) (c) - against assessee.
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