TMI Blog2013 (11) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Section applies only to a specified previous year. Explanation (b) defines what is the specified previous year. Both the impugned assessment years does not fall within such definition. Relevant previous years were neither the year in which search was conducted, nor was an year to which time for filing return under Section 139(1) was still there. Decisions relied on by the ld. CIT (Appeals) to give relief to the assessee were entirely on different fact situation and not relatable to any case where Explanation 5A to Section 271(1) applied - Decided in favour of Revenue. - IT Appeal Nos. 235 & 236 (Mds.) of 2013 - - - Dated:- 30-4-2013 - ABRAHAM P. GEORGE AND CHALLA NAGENDRA PRASAD, JJ. For the Appellant : S. Dasgupta. For the Respondent : G. Baskar. ORDER:- PER : Abraham P. George These are appeals filed by the Revenue, directed against orders dated 20.11.2012 of Commissioner of Income Tax (Appeals)-II, Chennai, deleting penalties of Rs. 3,00,100/- and Rs. 3,03,530/- respectively, levied on the assessee under Section 271(1)(c) of Income-tax Act, 1961 (in short 'the Act'), for the impugned assessment years. 2. Facts apropos are that assessee was subjected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee for assessment year 2007-08 included the investments of Rs. 10,29,669/-, in immovable properties. 4. Thereafter, proceedings for penalty was initiated under Section 271(1)(c) of the Act, for both the years. Assessing Officer was of the opinion that the amounts mentioned by the assessee in the returns filed by her, pursuant to notices issued under Section 153C, were nothing but concealed income. When put on notice, reply of the assessee was that the income returned by her in the returns were voluntary after paying due taxes thereof. According to the assessee, there was no reason for levying penalty under Section 271(1)(c) of the Act. However, Assessing Officer was not impressed. According to him, 'other income' returned by the assessee, in her returns of income, did not form part of her regular books of accounts and would not have been offered by her to tax, but, for the search conducted under Section 132 of the Act. Further, as per the A.O., assessee had not filed her returns for the impugned assessment years within the due date prescribed under Section 139(1) of the Act. He was thus of the opinion that assessee had concealed income of Rs. 10,69,730/- for assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty for both the assessment years. 8. Per contra, learned A.R., supporting the orders of CIT (Appeals), submitted that the search having been initiated on 26th August, 2008, what could have been applied was Section 271AAA and not Section 271(1)(c) of the Act. According to him, if Section 271AAA is applied, assessee satisfied the conditions laid down under sub-section (2) thereof and there could be no penalty. By virtue of amendment to Explanation 5 and Explanation 5A to Section 271(1) of the Act, by Finance Act, 2007 with effect from 1.6.2007, there could not be any levy of penalty under Section 271(1)(c) in respect of search assessments. Even otherwise, according to him, assessee had cooperated with the Department and there was no evidence to show that returned income reflected any concealed amounts. There was also no evidence to show that assessee had failed to file any particulars relevant to her assessments. Therefore, according to the learned A.R., ld. CIT(Appeals) was justified in deleting the penalty levied for both the years. 9. We have perused the orders and heard the rival submissions. There is no dispute that assessee had not filed returns of income within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the source of such investments. There is much strength in the argument of the learned D.R. that but for the search, assessee would not have disclosed the income in respect of her investments in immovable properties. The amounts so shown by her as 'other income' was not a part of her regular accounts. Hence such amounts squarely came within the purview of concealed income. Now coming to the argument of the learned A.R. that for search done after 1st day of June, 2007, only Section 271AAA could be applied and not Section 271(1)(c), we have to have a look at the former Section. Section 271AAA reads as under:- "[Penalty where search has been initiated. 271AAA. (1) The Assessing Officer may, notwithstanding anything contained in any other provisions of this Act, direct that, in a case where search has been initiated under section 132 on or after the 1st day of June, 2007, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him, a sum computed at the rate of ten per cent of the undisclosed income of the specified previous year. (2) Nothing contained in sub-section (1) shall apply if the assessee, (i) in the course of the sear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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