TMI Blog2003 (7) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, his statement was recorded under section 132(4). Copy of the statement is placed in the paper book filed by the learned Counsel at pages 1-12. At page 13 is placed the declaration made by the assessee dated18-9-1992 of the additional income of Rs. 1,80,000 which ha$ not been disclosed in the return filed for assessment year 1990-91. This declaration included the following placed at page 13 which reads as Under : "That I hereby declare under and in accordance with the provisions of Explanation 5 to section 271(1)(c) of the Income-tax Act, 1961 - the following amounts of income liable to tax in my hands : (i) For the assessment year 1990-91 Rs. 1,80,000 represented on account of investments, expenses etc., as follows:- - Rs. 1,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced on the decision of Supreme Court in Sir Shadilal Sugar General Mills Ltd. v. CIT [1987] 168 ITR 705. Ld. Counsel further relied upon the following decisions : CIT v. Kiran Co. [1996] 217 ITR 326 (Bom.) CIT v. Nuruddin [1990] 185 ITR 481 (Cal.) CIT v. Haji Gaffar Haji Dada Chini [1988] 169 ITR 33 (Bom.) CIT v. Navnitlal Pochallal [1994] 213 ITR 69 (Guj.) Nuruddin's case 3. Ld. Counsel also submitted a copy of the Tribunal's order for assessment year 1992-93 dated11th February 2002whereby penalty for assessment year 1992-93 has been cancelled. 4. Ld. DR on the other hand strongly supported the impugned order of the Ld. CIT(A) sustaining the levy of concealment penalty under section 271(1)(c) and argued that assessee has ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of relevant) for assessment year 1990-91. This investment had not been shown in the return of income originally filed on20th November, 1990. It was only during the course of search operations carried out by the income-tax authorities in July 1992 that unexplained investment inter-alia for 1990-91 amounting to Rs. 1,80,000 was detected by the department and the assessee categorically admitted the same in the statement under section 132(4). At page 13 of the paper book the assessee has made unequivocal and categorical admission regarding unaccounted investment of Rs. 1,80,000 for assessment year 1990-91. Now, the basic question which arises is whether assessee is entitled to immunity under Explanation 5 to section 271(1)(c). Explanation 5 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) admitting the concealed income but the exemption is subject to the specified conditions. Now in the instant case, the return of income for the assessment year 1990-91 has already been furnished in November, 1990 i.e. much before the date of search in July, 1992. In the said return, the assessee had not disclosed the unaccounted income of Rs. 1,80,000 which has been utilized for making the unaccounted investment. The assessee was thus clearly guilty of concealment as per the provisions of section 271(1)(c). When the search took place, he makes a categorical admission when the concealment has been found by the department and such admission would not in any manner absolve the assessee from default of concealment committed in the original re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rns showing meagre income. Subsequently, after action under section 132 of the Income-tax Act, 1961 the assessee filed revised returns showing higher income with a view to buy peace of mind and avoid litigation with the department. On the basis of these facts, when no concealment had been established and the returns had been filed merely to buy peace of mind and avoid litigation by the assessee, the Supreme Court endorsed the finding of fact recorded by the Tribunal that the department had not discharged its burden of proving concealment and had simply rested its conclusion on the act of voluntary return filed by the assessee in good faith. Now the facts in the instant case are entirely distinguishable in as much as the additional income of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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