TMI Blog2017 (2) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... were not the kind which fell within the exception to Explanation 5. So far as Prasanna Dugar (2015 (5) TMI 317 - CALCUTTA HIGH COURT ) is concerned, we find with dismay that the said judgment relates to application of Explanation 5A under Section 271 (1) while application of exception clause(2)in Explanation 5 is the case before us. The contention of the Revenue sought to be raised by the questions suggested stand already answered by Brijendra Gupta (2015 (7) TMI 451 - CALCUTTA HIGH COURT ) as held he expression “unless” appears after Clauses (a) and (b) of Explanation which provides for imposition of penalty. Therefore, ‘unless’ has to apply to the provision for imposition of penalty. Therefore, the aforesaid expression “to be furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between 2002-03 to 2006-07. The facts are that search and seizure operations were conducted on 23rd August, 2006, 25th April, 2007 and 3rd May, 2007 under Section 132 of the Income Tax Act, 1961. The three assessees made disclosure statements under Section 132(4) of the Act. The Revenue seeks to prefer appeal only in respect of ITA nos. 378 to 382/Kol/2011 pertaining to the assessment years 2002-03 to 2006-07 of the respondent assessee being one of the three assessees in the appeal decided by the Tribunal. The facts peculiar to the case of the assessee are that additional income was offered in disclosure statement under Section 132(4) of the Act for each of the assessment years. The assessment officer levied penalty in respect of income ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts would show that the assessees did not disclose the income or the assets any time in the returns filed by them. Furthermore, the search conducted was not in their premises; it was in the premises of someone else. Having regard to the restricted nature of the phrase books of account the particulars found in the premises of someone else could not be said to have been in the course of search , because the present assessees premises were not searched. Nor did they make any disclosure or statement, or surrender their income, during the course of search. They filed a return, which for the first time, disclosed the hitherto concealed income. Their explanations were not of the kind which therefore, fell within the exception to Explanation 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had specified that such income was earned from hosiery business, paper business and house property. Appellant has committed to payment of tax by way of filing return of income in response to notice u/s 153C where appellant declared income of ₹ 39 lakh. The tax on such income was already secured by the Assessing Officer in the form of seizure of cash at the time of search itself. This seized cash was later applied for payment of tax by the Assessing Officer and therefore I find that appellant has fulfilled all the conditions to fall under exception (2) to Explanation 5 of section 271(1)(c). Therefore, penalty u/s 271(1)(c) cannot be levied in case of appellant. I therefore cancel the penalty of ₹ 11,66,880/- levied by the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 6. We are supported in our view by the judgment of the Madras High Court in the case of CIT v. S.D.V. Chandru [2004] 266 ITR 175/136 Taxman 537 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 regarding the time within which returns should normally be filed. We do not find any application of Smt. Meera Devi (supra) to the present case. The requirement of clause (2) in Explanation 5 under Section 271 (1) was not fulfilled in the facts of that case. The assessees did not make an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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