TMI Blog2015 (9) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... undisclosed income has been derived. Under these facts and circumstances, we do not find any infirmity in the order of the CIT(A) and he has rightly followed the decision of CIT vs. Mahendra C. Shah [2008 (2) TMI 32 - GUJARAT HIGH COURT]. Decided against revenue. 6. In the result, the Revenue’s appeal is dismissed. - ITA No. 917/Ahd/2010 - - - Dated:- 12-7-2013 - Shri D. K. Tyagi and Shri T.R. Meena, JJ. For the Appellant : Shri T. Sankar, Sr. D.R. ORDER PER : T.R.Meena, Accountant Member This is an appeal at the behest of the Revnue which has emanated from the order of CIT(A)-II, Ahmedabad, dated 01.01.2010 for assessment year 2007-08. The following grounds of appeal are as under: 1. The Ld. CIT(A) has erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of search after availing much time to submit the declaration statement and hence the assessee was not ignorant of the provisions. Besides the assessee also mentioned in the letter dated 02/08/2006 that he will provide the para wise bifurcation related details in on week s time confirming that assessee was aware of the provision and despite the same, details were not provided by the assessee. 4. The Ld. CIT(A) has erred in law and on facts in ignoring the ratio of the following case laws while deciding to delete the penalty imposed on unaccounted income of the assessee surrendered by him on account of various incriminating documents seized during the course of search, which were neither recorded in the books of account nor he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as declared in return of income, without making any addition thereto. The AO levied penalty of ₹ 50,49,000/- after holding that the relief given in Explanation 5 is not available to the assessee after discussing the reasons in detail in the penalty order. 3. Ld. Sr. D.R. argued that the order passed by the CIT(A) is erroneous. He submitted that the ld. CIT(A) has erred in law and on facts in deleting the penalty holding that assessee is entitled for immunity as per Explanation 5 to Section 271(1)(C) of the Act, ignoring that one of the three pre-conditions to be fulfilled for getting immunity as per the said provision. The assessee has to explain the undisclosed income have been earned is not given by the assessee while disclosing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he return and also paid the tax. The returned income was accepted. As per decision of Hon ble Rajasthan High Court in the case of CIT vs Mishrimal Soni reported in 162 Taxman 53, there is no distinction between tangible assets or intangible assets in respect of clause (2) of Explanation 5 to Section 271(1)(C) of the Act and the disclosure on the basis of entries in the document is also covered. Further, as per decision of Hon ble Gujarat High Court in the case of CIT vs. Mahendra C. Shah reported in 172 Taxman 58, the immunity is granted to the appellant under Explanation 5 to Section 271(1)(C) of the I.T. Act even if the manner is not specified in the statement u/s.132(4) of the Act. In view of these facts and the decisions, it is held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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