TMI Blog2013 (8) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income for the assessment year 2007–08, at the time of search, penalty cannot be levied under the deeming provisions of Explanation 5A. Consequently, we set aside the impugned order passed by the learned Commissioner (Appeals) and hold that on this preliminary ground, penalty levied by the Assessing Officer and as confirmed by the Commissioner (Appeals) cannot be sustained and same is deleted. - Decided in favour of assessee - ITA no. 1020/Mum./2011 - - - Dated:- 28-8-2013 - SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER Assessee by: Mr. Hari S. Raheja Revenue by : Mr. O.P. Singh ORDER PER AMIT SHUKLA, J.M. The present appeal has been preferred by the assessee, challenging th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account cannot be said to be disclosed. Accordingly, he also confirmed the penalty. 4. Before us, the learned Counsel submitted that, first of all Explanation 5 is not applicable but only Explanation 5A can be invoked. The said Explanation provides that where the due date of filing of the return of income has not expired, the said Explanation cannot be invoked. In this case, the due date of filing of the return of income under section 139(1) was 31st July 2007 and under section 139(4) was 31st March 2008. In the present case, a search has taken place on 19th June 2007 and by this date, the due date has not expired. Therefore, by fiction of Explanation 5A, penalty under section 271(1)(c) cannot be levied. 5. On the other hand, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiated under section 132 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 income for such previous year has been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 139(4) was 31st March 2008. Thus, in the present case, deeming provisions of Explanation 5A cannot be applied here because at the time of search, the relevant previous year for the assessment year 2007 08, the due date of filing of return of income had not expired. Whether the assessee had filed the return of income under section 139(1) or 139(4) after the date of search, will not be of much consequence because the income in question pertains to assessment year 2007 08 for which the due date had not expired at the time of search. The deeming provisions as given any Explanation 5A has to be strictly construed because one has to see what is the status of income on the date of search and not afterwards. The penalty in this case, cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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