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Commissioner of Income Tax, Central-III, Kolkata Versus Brijendra Gupta

2015 (7) TMI 451 - CALCUTTA HIGH COURT

Penalty under section 271(1)(c) of the Income Tax Act, 1961 - Held that:- One of the conditions is that the assessee makes a statement under sub-Section (4) of Section 132 that the assets unearthed have been acquired out of his income which has not been disclosed so far in his returns of income already filed. The difficulty arises by the use of the expression “to be furnished before the expiry of time specified in sub-Section (1) of Section 139”. A confusion is likely to arise as to whether the .....

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pression “to be furnished” has to be interpreted as ‘‘required to be furnished”. Only in that case the Section will make a meaning otherwise the Section does not make any meaning. We are supported in our view by the judgment of the Madras High Court in the case of C.I.T. Vs. SDV Chandru reported in [2003 (12) TMI 40 - MADRAS High Court ] wherein a Division Bench opined that “ The additional words which refer to the time specified in section 139(1) are only a reiteration of the legal requirement .....

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nder section 271(1)(c) of the Income Tax Act was deleted. A search was conducted on 15th February, 2006 under section 132 of the Income Tax Act. Notice under section 153A was issued, in response whereof, the assessee filed his return on 19th February, 2007. It is a fact that the assessee concealed an income of ₹ 86,16,319/- for the assessment year 2000-01. Similarly, undisclosed income for the assessment years 2001-02, 2002-03, 2003-04 and 2004-05 were there. The assessee made a statement .....

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he penalty levied under section 271(1)(c) of the Income Tax Act, 1961 on the ground that the assessee is entitled to immunity from penalty on account of Explanation 5 to Section 271(1) when the assessee s case does not come under the purview of the exceptions provided therein . Mr. Poddar, learned senior advocate appearing for the assessee has drawn our attention to an unreported judgment of this Court to which one of us( G.C.Gupta,J.) was a party in ITA No. 39 of 2010, wherein this Court held a .....

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ssessee and, therefore, the Tribunal took the correct view of the matter in allowing the immunity and upholding the view of the Commissioner of Income Tax (Appeals) and setting aside the order of penalty passed by the Assessing Officer . Mr. Poddar submitted that it is not in dispute that all the conditions were complied with by the assessee. He drew our attention to paragraph-6 from the judgment of CIT (Appeals) which reads as follows: The submissions are carefully considered. The undisputed fa .....

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/s 132(4). In this situation, the Delhi High Court in the case of CIT v. Chhabra Emporium (264 ITR 249) and Madras High Court judgment in the case of CIT v. Chandru (266 ITR 175) and Rajasthan High Court judgment in the case of Gebilal Kanhailal vs. ACIT (270 ITR 523) have held that penalty is not leviable. No further requirements are specified in the language of law. Under the circumstances and respectfully following the orders of the authorities cited above, the order of penalty is cancelled a .....

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e 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,- (a) for any previous year which has ended before the date of 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 .....

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before the date of the search; and (ii) in a case failing under clause (b), on or before such date, in the books of account, if any, maintained by him for any source of income or such income is otherwise disclosed to the [[Principal Chief Commissioner or Chief Commissioner] or [Principal Commissioner or Commissioner]] before the said date;or (2) he, in course of the search, makes a statement under subsection( 4) of section 132 that any money, bullion, jewellery or other valuable article or thing .....

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e since disclosed had not been shown. It is axiomatic that if such income had been disclosed in the returns filed under Section 139, the question of undisclosed income would not have arisen. When the return had been filed but the income since discovered was not disclosed, the question of concealment naturally arises. The legislature, however, made a conscious departure by carving out an exception provided the conditions laid down in Clause (i) or Clause (ii) thereof have been complied with. We a .....

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