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TMI Blog2009 (7) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... t the penalty under Section 271(1)(c) cannot be levied?, (ii) whether on the facts and circumstances of the case, the issue of claim of interest under Section 132B(4)(a) can be considered in a rectification petition under Section 154?, and (iii) whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee is entitled for interest under Section 132B(4)(a) when there was no search under Section 132 in the assessee's premises? 3. Having heard Mr.J.Narayanaswamy, learned Standing Counsel for the appellant Revenue, we are not inclined to interfere with the order of the Tribunal. To state the facts in brief, a search was conducted on l7.7.2003 under Section 132 in the premises of one Shri.G.Ashok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g an application under Section 154 of the Act, which came to be rejected by the Assessing Officer on 3.5.2007. As against which the assessee approached the Commissioner of Income-tax Appeals, and the first appellate authority, by his order dated 02.7.2007 held that the omission of grant of interest under Section 132B(4) was a mistake apparent on record, and therefore, the assessing authority should rectify the said mistake and grant interest as per Section 132B(4) of the Act. 5. That apart, as against the levy of penalty, the respondent assessee approached the Commissioner of Income-tax Appeals independently, and, by order dated 8.8.2007, the first appellate authority took the view that even going by the order of assessment, there being no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the contention, viz., the seizure was not effected in the premises of the respondent assessee is concerned, in the first place, the very fact that the seizure was effected from the safe deposit vault belonging to the respondent assessee as stated in uncontroverted terms in the order of assessment itself would be the answer to reject the said contention. When once it is admitted that there was seizure of the cash, the Indira Vikas Patras and the bullion in the course of the search made under Section 132 from the safe deposit vault belonging to the respondent assessee, it is too late in the day for the appellant to contend that the same were not recovered from the premises of the respondent assessee. In fact, though the search was said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the authority concerned or at the instance of the assessee by invoking Section 154(2)(a)(b) of the Act. Therefore, in the case on hand, when the assessing authority, having passed its order of refund dated 19.10.2006 and inasmuch as we have held that Section 132(b)(4)(a) gets attracted to the case on hand, when under the said provision, the assessee is entitled for grant of interest as provided therein and when the same did not find a place in the order of refund dated 19.10.2006, it is nothing but a mistake apparent on the face of the record which could have been rectified either on its own motion by the assessing authority himself under Section 154(2)(a) and in the absence of any such rectification carried out, the assessee was fully e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such income". The first appellate authority has observed that 'even the Assessing Officer passed the impugned penalty order has not arrived at a clear conclusion whether the assessee had concealed the particulars of income or furnished inaccurate particulars of income in respect of value of jewellery and maintenance of diary. It is relevant to note that in the assessment order passed under Section 143(3), no addition was made on account of maintenance of diary. The only addition made was in respect of value of jewellery. 10. As far as the levy of penalty is concerned, going by Section 271(1)(c) of the Act, the provisions make it clear that such levy of penalty would be warranted if at all the assessee had concealed particulars of his i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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