TMI Blog2007 (10) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... y concern M/s. Pawan Courier. On 7-7-2004, the Maharashtra Police intercepted Shri Kailash Jadhav, an employee of the assessee on Bombay Howrah Mail near Nagpur. Shri Jadhav was found in possession of cash amounting to Rs. 46,85,855 and since he could not offer any satisfactory explanation in respect of the said amount, the Maharashtra Police seized the said cash which was later on requisitioned by the Department under section 132A. Subsequent to the seizure of the said cash from the employee of the assessee, a survey operation under section 133A was carried out at the business premises of the assessee on 9-7-2004. During the course of survey, the cash of Rs. 46,85,855 found from the possession of his employee was accepted as belonging to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee during the course of survey and having already declared in the return of income, the same could not be treated as concealment of income by him so as to justify the levy of penalty under section 271(1)(c). This submission of the assessee, however, was not found acceptable by the learned CIT(A) and relying inter alia on Explanation 5 to section 271(1)(c), he proceeded to confirm the penalty of Rs. 15,65,000 imposed by the Assessing Officer under section 271(1)(c). Aggrieved by the same, the assessee has preferred this appeal before the Tribunal. 4. Before us, the learned counsel for the, assessee reiterated the submission made before the learned CIT(A) that the assessee having already surrendered the amount of cash found from the posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have been acquired by him by utilizing (wholly or in part) his income, (a) for any previous year which has ended before the date of the search, but the return of income for such year has not been furnished before the said date or. where such return has been furnished before the said date, such income has not been declared therein; or (b) for any previous year which is to end on or after the date of the search, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of the search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me filed for the said year in the regular course, the said amount was duly shown by the assessee. Even the Assessing Officer himself not only completed the assessment under section 153A with reference to the said return filed by the assessee, but even accepted the income as declared by the assessee in the said return. It is by now well settled that the concealment as envisaged in section 271(1)(c) has to be informed on the basis of return of income filed by the assessee and the income which is already declared by the assessee in his return of income filed in the regular course cannot be treated as his concealed income. In the present case, the amount of Rs. 46,85,855 representing cash found from the possession of his employee was not only d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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