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TMI Blog2021 (12) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... 3C of the Act dated 23.08.2013 was issued to the assessee directing filing of return of income pursuant to that the return of income was filed on 16.09.2013 declaring Rs. 1,65,00,000/- including the income disclosed during the course of search under Section 132 of the Act of Rs. 1,65,00,000/- under the head income from other sources. It is also a fact that during the assessment proceeding the assessee submitted details of disclosure as called for and it was admitted by Shri Shankarlal Chowdhary in his statement recording during the course of search on 19.11.2011of an amount of Rs. 1,65,00,000/- on account of introduction of share premium and the share capital in the company. Such income as disclosed during the search and seizure action under Section 132(1) of the Act to the tune of Rs. 1,65,00,000/- since not found declared in the original return of income has been added to the total income of the assessee and penalty proceeding under Section 271(1)(c) read with Explanation 5A of the Act was initiated separately for furnishing of inaccurate particulars of income and thereby concealment of income by the assessee. Finally by and under the order dated 31.03.2016 the penalty proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein it is held as under- "The penal provisions would operate where there is a failure of duty to disclose fully and truly particulars of income, imposed under the Act and the rules there under. The duty is enjoined upon a person to make a correct and complete disclosure of his income and it is only when he fails in his duty by not disclosing his income or part thereof he conceals the particulars of his income. Therefore, if the disclosure made of particulars of income is incorrect then he commits breach of his duly. Such defaults entail the penal consequences contemplated by section 271(1)(c)(iii) of the Act." (ii) In the decision in the case CIT vs Zoom Communication Reported in 191 Taxman 179 the Hon'ble Delhi HC has held as under:- "The court overlooks the fact that only a small percentage of the Income Tax Returns are picked up for scrutiny, if the assessee makes a claim which is not only incorrect in law but is also wholly without any basis and the explanation furnished by him for making such a claim is not found to be bonafide, it would be difficult to say that the view that a claim which is wholly untenable in law and has absolutely no foundation on when it could be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariant Chemicals Ltd (India) (xv) 52 Taxmann com 248 (SC) Kuldeep Wines (xvi) 366 ITR 449 (Del) Global Associates 7. In view of the above, since it is established that the assesses has willfully and deliberately concealed income by not filing the return of income, the assessee company is liable for penalty within the meaning of Section 271(1) (c) read with Explanation 5A of the Act. The minimum penalty leviable u/s. 271(1) (c) of the Act is 100% of tax effect which works out to Rs. 55,53,800/- and maximum penalty is 300% of tax effect which works out to Rs. 1,66,61,700/-. However, considering the facts and circumstances of me case, minimum penalty of Rs. 55,53,800/- is hereby levied u/s 271(1) (c) of the Act." 7. It also appears from the records particularly the order passed by the Ld. CIT(A) that alongwith the assessee there are number of companies who has raised share capital the details whereof is mentioned at Page 2 of the Ld. CIT(A) which is reproduced hereinbelow: Assessment Year in which the amount is disclosed Sr. No. Name of the Company 2006-07 2007-08 2008-09 2009-10 Total (Rs.) 1 Shreepal Starch Products Pvt. ltd. - - 9000000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(c) of the Act. 10. In the result, appeal of the Assessee is allowed. 11. Other appeals in IT(SS)A Nos. 129 to 133, 135 & 136/Ahd/2015 also rests on similar facts and involves identical issue towards imposition of varied penalties. In parity with the reasonings in IT(SS)A No. 134/Ahd/2015 (supra), all other captioned appeals of the assessees concerning AYs. 2006-07, 2007-08 and 2008-09 are allowed with consequential directions to AO to delete respective penalties. 12. In the combined result, all appeals filed by captioned assessees are allowed. ITA No. 651/Ahd/2018 8. There is no debate with regard to the proposition that in order to attract Explanation 5A appended to section 271(1)(c) there should be a search and during that search assessee should be found to be owner of any money, bullion, jewellery and other valuable article or things and the assessee claims such assets has been acquired by him by utilizing wholly or partly of his income of any previous year or any income based on any entry in any books of accounts or other documents or transaction found during the course of search, and the assessee claims that such entries in the books of accounts or other documents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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