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TMI Blog2012 (7) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... ,60,181/- and Rs.86,179/- offered in the respective returns filed by the assessee in response to notice u/s 153A of the Act, were imposed for the assessment at Rs.91,323/- and Rs.43,461/- for the assessment years 2001-02 & 02-03, respectively and under similar circumstances confirmation of penalty of Rs.47,51,579/- levied u/s 271(1)(c) of the Act, in relation to additional income declared in response to notice u/s 153A of the Act came to be deleted by 'F' bench of the ITAT, Delhi in the case of Prem Arora vs. DCIT in I.T.A. No.4702/Del./2010 for assessment year 2004-05 vide order 9.3.2012 and by placing photocopy of the Tribunal order (supra), it was pleaded that since facts are similar and issue is identical with difference in amount of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harmaceuticals(supra) while deciding the issue levy of penalty u/s 271(1)(c) in paragraph 15 & 16 has held as under: "15. It necessarily follows that concealment of particulars of income or furnishing of inaccurate particulars of income by the assessee has to be in the income tax return filed by it. There is sufficient indication of this Court in the judgment in the case of Commissioner of Income Tax, Delhi-I Vs Mohan Das Hassa Nand 141 ITR 203 and in Reliance Petro Products Pvt.Ltd (supra), the Supreme court has clinched this aspect, viz., the assessee can furnish the particulars of income in his return and everything would depend upon the income tax return filed by the assessee. This view gets supported by Explanation 4 as well as 5 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be determined with reference to the return of income to be filed in response to notice u/s 153A of the Act. Once returned income filed u/s 153A is accepted by the assessing officer it can neither be a case of concealment of income nor furnishing of inaccurate of particulars of such income. Hence, the assessee's case is squarely covered by the decision of Hon'ble Delhi High Court in the case SAS Pharmaceuticals (supra). Hence, penalty u/s 271(1)(c) is not exigible. 28. The next contention of ld AR of the assessee is that if the provisions of Explanation 5 of section 271(1) in respect of searches initiated on or before 1.6.2007 were sufficient enough for imposition of penalty u/s 271(1)(c), there was no need for inserting of Expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is otherwise disclosed to chief commissioner or commissioner before the date of search. On the other hand Clause(2) is applicable where the assessee makes a statement under section 132(4) that any money, bullion, jewellery or other valuable article or thing found in his possession or under his control has been acquired out of his income which has not been disclosed in his return of income to be furnished before the expiry of time specified in sub-sec. (1) of sec. 139 and also specifies in the statement the manner in which such income has been derived and pays tax together with interest, if any, in respect of such income. 29. We also find that the Finance Act, 2007 has inserted words "search initiated under sec. 132 before the first day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: "Explanation 5A.- Where, in the course of a search initiated under section132 on or after the 1st day of June, 2007, the assessee is found to be the owner of- (i) any money, bullion, jewellery or other valuable article or thing (hereafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilising (wholly or in part) his income for any previous year; or (ii) any income based on any entry in any books of account or other documents or transactions and he claims that such entry in the books of account or other documents or transactions represents his income(wholly or in part) for any previous year, which has ended before the date of search and,- (a) where the return of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht have been in possession of cash throughout the period covered by search assessments. The income offered to tax u/s 153A for assessment year 2004-05 is based on entries recorded in the seized material. Unlike provisions of Explanation 5A, the provisions of Explanation 5 cannot be invoked in assessment year 2004-05 in respect of entries recorded in seized material. Thus invoking of Explanation 5 in assessment year 2004-05 is based on presumptions, surmises and conjectures. It is settled law that suspicion howsoever strong, it cannot take place of actual evidence and hence the contention of the Revenue that assessee was in possession of cash throughout the period of six assessment years has to be rejected. In view of above discussion we are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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