TMI Blog2016 (7) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.06 crores pertained to on-money receipts by the assessee. There was no money, bullion, jewellery or other valuable article or thing of such value found during the search and the additional income was based on materials collected during the search. Prior to 1st June 2007, therefore, by applying explanation 5, penalty could not have been levied. Looked from this angle, we do not find any error in the view of the Tribunal. For the reasons somewhat different from those recorded by the Tribunal, therefore, this tax appeal is dismissed. - Decided in favour of assessee. - TAX APPEAL NO. 976 of 2015 - - - Dated:- 18-7-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE APPELLANT : MR KM PARIKH, ADVOCATE FOR THE OPPONENT : MR TU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71(1)(c) of the Act upon which the matter went ultimately to the Tribunal. The Tribunal by the impugned judgement reversed the penalty making the following observations : 6. We have heard both sides and gone through the case file. Relevant facts stand narrated hereinabove. The authorities below treat assessee's additional income declared of ₹ 2,06,48,692/- as a case of concealment and furnishing of inaccurate particulars of income u/s.271(1)(c) of the Act. The assessee reiterates the same in its grounds of appeal. The Revenue strongly supports the CIT(A)'s order. We find that the hon'ble jurisdictional High Court in the case of Kirit Dayabhai Patel vs. ACIT in Tax Appeal No.1181, 1182 to 1185 of 2010 decided on 3.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtained to the assessee's onmoney receipts and would not be covered by explanation 5. When explanation 5 itself did not apply, the question of granting immunity upon fulfillment of conditions contained therein would not arise. 5. Explanation 5 to section 271(1)(c) reads as under : [Explanation 5. Where in the course of a search under section 132 before the 1st day of June, 2007, the assessee is found to be the owner of 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,- (a) for any previous year which has ended before the date of the search but the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statement the manner in which such income has been derived and pays the tax, together with interest, if any, in respect of such income.] 6. This section applies to search carried out before 1st June, 2007. In such a case, if the assessee was found to be owner of any money, bullion, jewellery or other valuable article or thing and the assessee claims that such assets have been acquired by utilising his income, for the previous year ended before the date of the search but the return of income has not been filed before the said date or, if filed, such income has not been disclosed, then, notwithstanding that such income is declared by him in the return of income furnished after the date of the search, the assessee would be liable to penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding that such income is declared by him in any return of income furnished on or after the date of the search, he shall, for the purposes of imposition of a penalty under clause (c) of subsection (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income. 7. In terms of explanation 5A, thus even in a case where during the search, the assessee is found to be the owner of any income based on any entry in the books of account or other documents or transactions, the penalty would attach, provided other requirements are fulfilled. This clause was not there in original explanation 5 which applied till 1st June 2007 and has therefore, to be applied in the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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