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2014 (10) TMI 576 - ANDHRA PRADESH HIGH COURTPenalty u/s 271(1)(c) Explanation submitted by assessee satisfactory or not 200% of penalty levied of the value of gold seized by AO which CIT(A) reduced to 100% - Value of gold treated as undisclosed income u/s 69A Gold seized during search u/s 132 Held that:- The assessees case falls into sub-clause (b) - by the time the search was undertaken, the assessee had time to file returns, and as a matter of fact, the returns were filed on 30.09.1986, wherein the income through which the seized gold was acquired, was also disclosed relying upon Assistant Commissioner of Income Tax, Udaipur Versus M/s. Gebilal Kanhaialal HUF, Through Karta, Udaipur [2012 (9) TMI 297 - SUPREME COURT] - three conditions must be fulfilled by an assessee, before claiming the immunity under clause (2) of Explanation 5 to Section 271 of the Act - the search was made on 26.06.1985, and the returns were filed within time, on 30.09.1986 - There was no finding at any stage of the proceedings that the acquisition of the seized gold was during any earlier AY - the first condition can be deemed to have been complied with by the appellant - what is required in the context of clause (2) of Explanation 5 to Section 271 of the Act is making of a statement by the assessee and not the acceptability or otherwise of it - Since the assessee made the statement, this condition is complied with. The value of the seized gold was treated as income of the assessee and he paid thereon - the case fits into clause (2) of Explanation 5, which in turn, would bring about immunity to the appellant vis--vis Section 271 of the Act - The Tribunal proceeded on hyper- technicalities and acted as though every seizure must entail initiation of proceedings u/s 271 of the Act - Such an approach cannot be countenanced - the case of the assess is covered by clause (2) of Explanation 5 of Section 271 of the Act thus, the order of the Tribunal is set aside Decided in favour of assessee.
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