TMI Blog2018 (6) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... ut making any addition in the assessment order u/s. 153A of the Act, the Assessing Officer accepted the return of income by itself. In our opinion, there cannot be levy of penalty u/s. 271(1)(c) of the Act by invoking the provisions of Explanation 5A - See SARAT CHANDRA SAHOO VERSUS DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-2 (2) , BHUBANESWAR [2014 (10) TMI 905 - ITAT CUTTACK] - Decided in favour of assessee. - I.T.A. 54 & 55/Coch/2017 - - - Dated:- 30-5-2018 - SHRI CHANDRA POOJARI, AM AND GEORGE GEORGE K., JM For The Assessee : Shri C.B.M. Warrier, FCA For The Revenue : Shri A. Dhanaraj, Sr. DR ORDER Per CHANDRA POOJARI, ACCOUNTANT MEMBER: These two appeals filed by the assessee are directed against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional income of ₹ 1,94,910/- on account of search. The assessment u/s. 153A r.w.s. 143(3) of the Act was completed and the income was arrived at ₹ 10,27,780/-. Similarly for AY 2011-12, the assessee filed the return of income at ₹ 15,87,420/- as against the original return of income at ₹ 12,66,560/-. Thus, declaring additional income of ₹ 3,21,356/-. Penalty proceedings u/s. 271(1)(c) of the Act was initiated by service of notice u/s. 274 r.w.s. 271 of the Act, directing the assessee to explain as to why penalty for concealing the source of income should not be levied. After considering the objections of the Ld. AR, the Assessing Officer levied penalty for these two assessment years at 100% of tax evaded at &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 153A was issued to the assessee and the assessee declared income of ₹ 10,27,781/- as against the original declared income of ₹ 8,32,870/- for the assessment year 2010-11. Similarly, the assessee declared income of ₹ 15,87,920/- u/s. as per the notice u/s. 153A of the Act as against the original declared income of ₹ 12,66,560/- for the assessment year 2011-12. Thus there is an additional income of ₹ 1,94,910/- declared by the assessee for the assessment year 2010- 11 and additional income of ₹ 3,21,356/- for the assessment year 2011-12. 4.1 Now we shall go through Explanation 5A of section 271(1)(c) of the Act which reads as follows: Explanation 5A Where, in the course of a search initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sets or documents found at the time of search. Admittedly, in the present case, search conducted u/s. 132 has not resulted in unearthing of impugned income. The additional income was offered voluntarily by the assessee, consequent to the notice issued u/s. 153A of the Act which is related to the following items: AY 2010-11 Bonus ₹ 74,970/- Interest Rs.1,19,940/- Total Rs.1,94,190 AY 2011-12 Bonus ₹ 84,966/- Short term capital gain ₹ 65,000/- Interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed income found in the course of survey itself, which was converted into a search. A perusal of the wordings of Explanation 5A to section 271(l)(c) shows that the wordings used are in the course of a search initiated under section 132 on or after the 1st day of June, 2007, the assessee is found to be the owner , This is not the case in the case of the assessee. The survey itself disclosed everything. That survey itself disclosed that the assessee was not maintaining books. The survey itself so found the Fixed Deposits, etc. It was only for the purpose of seizure and further investigation that the survey was converted into a search. The search did not come out with anything fresh. Consequently Explanation 5A to Section 271(l)(c) cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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