SHRI MOHAMED MOHTRAM FAROOQUI, JHUNJHUNU V. ACIT, CIRCLE, JHUNJHUNU

ITA 1252/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1709 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1993-1994
• Appeal Filed On: 06-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Initiation of penalty proceedings; Set aside
• Section: 271(1)(c); 143(3); 5(2); 153A; 251; 192; 139(1); 13; 153; 22; 27; 132; 139

Judgement Text

1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1252/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :1993-94 SH. MOHAMED MOHTRAM FAROOQUI MOHALLA PIRZADAN, JHUNJHUNU CUKE VS. ACIT, CIRCLE, JHUNJHUNU LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAFPF3165N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. P. C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/09/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 09/12/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-03, JAIPUR DATED 30.10.2019 WHEREIN THE ASSESSEE HAS TA KEN THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE LEVY OF PENALTY OF RS. 2,42,296/- U/S 271(1)(C) OF THE IT ACT, 1961. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT EXPLANATION 5 TO SECTION 271(1)(C) IS APPLICABLE A ND SINCE ASSESSEE HAS NOT STATED THE MANNER OF EARNING THE INCOME IN STA TEMENT U/S 132(4), HE IS LIABLE FOR PENALTY BY NOT ACCEPTING THE CONTENTION OF ASSESSEE THAT THIS EXPLANATION IS NOT ATTRACTED IN CASE OF REQUISITIO N U/S 132A. 3. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN IGNORING THE FACT THAT ASSESSEE HAS DECLARED THE INCOME ON WHICH PEN ALTY IS IMPOSED IN ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 2 THE ORIGINAL RETURN FILED U/S 139(1) AND THUS THER E IS NO CONCEALMENT OF INCOME ON WHICH PENALTY COULD HAVE BEEN LEVIED. 2. AT THE OUTSET, IT IS NOTED THAT THIS IS THE SEC OND ROUND OF APPELLATE PROCEEDINGS. IN THE ORIGINAL ROUND OF APPELLATE PR OCEEDINGS, THE MATTER HAD TRAVELLED RIGHT UP TO THE HONBLE SUPREME COURT AND THE HONBLE SUPREME COURT HAS REMITTED THE MATTER TO THE ASSESSING OFFICER FOR DE NOVO CONSIDERATION IN ACCORDANCE WITH LAW. 3. THE RELEVANT FACTS OF THE CASE, AS EMANATING FR OM THE IMPUGNED PENALTY ORDER DATED 17.04.2012 ARE AS FOLLOWS. ON 08.04.92, THE A SSESSEE WAS APPREHENDED BY THE POLICE THANA, SIKAR WITH CASH AMOUNTING TO RS.5 ,92,340/- AND THE CASH WAS SEIZED BY THE POLICE AND THEREAFTER, THE INCOME TAX DEPARTMENT WAS INFORMED. THEREAFTER, ON 09.04.92, THE INCOME TAX DEPARTMENT INITIATED REQUISITION PROCEEDINGS U/S 132A AND DRAWN A PANCHNAMA AND TAKE N POSSESSION OF CASH IN PURSUANCE OF WARRANT U/S 132A OF THE INCOME TAX ACT 1961. ON 09.04.92, THE ASSESSEE VIDE ITS LETTER OF EVEN DATE ADDRESSED TO DEPUTY DIRECTOR OF INVESTIGATION OFFERED THE SAID AMOUNT FOR INCLUSION IN HIS RETURN OF INCOME FOR THE AY 1993-94. ON 21.04.92, THE DEPARTMENT ISSUED AND SERVED A NOTICE UPON THE ASSESSEE UNDER RULE 112A READ WITH SECTION 132(5) TO EXPLAIN THE NATURE AND SOURCE OF ACQUISITION OF THE AFORESAID SEIZED CASH. ON 11.06.92, THE ASSESSEE FI LED REPLY SURRENDERING THE SEIZED CASH AS INCOME FOR THE FINANCIAL YEAR 92-93 RELEVAN T TO ASSESSMENT YEAR 1993-94 AND OFFERED THE CASH TO BE RETAINED TO SET OFF HIS TAX LIABILITY. ON 22.07.92, THE ASSISTANT COMMISSIONER INVESTIGATION CIRCLE 1(1), J AIPUR PASSED THE SUMMARY ORDER UNDER SECTION 132(5) BY ASSESSING THE TOTAL INCOME OF ASSESSEE FOR THE FY 92-93 AT RS.5,95,340/- AND ALSO IMPOSED PENALTY U/S 271(1)(C ) AT RS.7,30,917/- WHICH WAS CHALLENGED U/S 132(12) AND WHILE REJECTING THE ASSE SSEES PETITION, THE LD CIT HELD THAT THE INITIATION OF PENALTY U/S 271(1)(C) IN TH E COURSE OF REGULAR ASSESSMENT ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 3 PROCEEDINGS WOULD DEPEND ON THE RETURN FILED BY THE ASSSESSEE. THE ASSESSEE'S ARGUMENT THAT IN THE EVENT OF DECLARATION OF INCOME IN THE RETURN THERE WOULD BE NO DEEMED CONCEALMENT APPEARS TO HAVE SUBSTANCE. THE A SSESSING OFFICER IS REQUIRED TO APPLY HIS MIND CAREFULLY IN THIS REGARD BEFORE T AKING ANY DECISION. THE NATURE OF DISCLOSURE IN THE RETURN AND THE RELEVANT PROVISION S OF THE INCOME TAX ACT SHOULD BE KEPT IN MIND. 4. THEREAFTER, ON 26.04.93, THE PETITIONER FILED HI S ORIGINAL RETURN OF INCOME FOR THE ASSESSMENT YEAR 93-94 U/S 139(1) OF THE ACT DECLARI NG THEREIN TOTAL INCOME OF RS.6,09,620/- AS FOLLOWS: 1. RENTAL INCOME RS. 17,280.00 2. CASH TAKEN BY SIKAR SADAR THANA ON 08.04.92 AND THEN TAKEN POSSESSION BY THE INCOME TAX DEPARTMENT ON 09.04.92. RS. 5,92,340.00 TOTAL RS. 6,09,620.00 5. THEREAFTER, THE AO COMPLETED THE ASSESSMENT PRO CEEDINGS U/S 143(3) HOLDING THAT THE SURRENDER WAS A RESULT OF REQUISITION U/S 132A OF THE ACT AND THE PETITIONER HAD NOT MAINTAINED ANY BOOKS OF ACCOUNT, THEREFORE INCLUDED THE CASH AS INCOME OF THE ASSESSEE AND ORDERED FOR INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 6. THE PENALTY WAS SUBSEQUENTLY LEVIED BY THE AO, WHICH WAS CONFIRMED BY THE LD CIT(A), ON APPEAL BY THE ASSESSEE WAS DELETED BY THE COORDINATE BENCH, ON FURTHER APPEAL BY THE REVENUE, THE ORDER OF COORDIN ATE BENCH WAS REVERSED BY THE HONBLE HIGH COURT CONFIRMING THE ACTION OF THE AO AND LD CIT(A), AND FINALLY, THE MATTER CAME UP FOR CONSIDERATION BEFORE THE HONBLE SUPREME COURT IN CIVIL APPEAL NO. 8175 DATED 02.02.2010 WHEREIN THE HONBLE SUPRE ME COURT REMITTED THE MATTER BACK TO THE AO FOR DENOVO CONSIDERATION IN ACCORDAN CE WITH LAW. ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 4 7. PURSUANT TO THE ORDER OF THE HONBLE SUPREME COU RT, A FRESH SHOW-CAUSE DATED 7.02.2012 WAS ISSUED BY THE AO TO THE ASSESSE E AND IN RESPONSE, THE ASSESSEE FURNISHED ITS SUBMISSIONS AND MADE THE NEC ESSARY REPRESENTATION BEFORE THE AO. IN ITS SUBMISSION, THE ASSESSEE FURNISHED THE DETAILS OF THE FILING OF RETURN PRIOR TO AND SUBSEQUENT TO AY 93-94 AS MENTIONED AT PG 5 & 6 OF THE PENALTY ORDER. HE ALSO FILED DETAILED EXPLANATION AS TO THE NON AP PLICABILITY OF EXPLANATION 5 OF SECTION 271(1)(C) WITH REFERENCE TO THE REQUISITION U/S 132A AND RELIANCE WAS PLACED ON VARIOUS CASE LAWS. IT WAS CONTENDED THAT SINCE T HE ASSESSEE HAD OFFERED CASH OF RS.5,92,340/- IN THE RETURN FILED U/S 139(1) AND EX PLANATION 5 IS NOT APPLICABLE, NO PENALTY U/S 271(1)(C) IS LEVIABLE. 8. THE AO HOWEVER, IMPOSED PENALTY @ 120% ON THE TA X ON ALLEGED CONCEALED INCOME OF RS.5,92,340/- BY HOLDING THAT AS PER SUB- SECTION (3) OF SECTION 132A, PROVISIONS OF SUB-SECTION (4A) TO (14) OF SECTION 1 32(1) SHALL APPLY AND THEREFORE IN EXPLANATION 5, ONCE REFERENCE IS MADE TO SECTION 13 2 THEN THE SAME IS AUTOMATICALLY DEEMED TO INCLUDE REFERENCE TO SECTION 132A ALSO. F URTHER, THOUGH THE ASSESSEE OFFERED RS.5,92,340/- FOR TAXATION BUT HE DID NOT I NDICATE THE MANNER IN WHICH THE AFORESAID AMOUNT WAS EARNED. HE THEREFORE, HELD THA T THE PROVISIONS OF SECTION 271(1)(C) ALONG WITH EXPLANATION 5 ARE APPLICABLE A ND THE ASSESSEE IS LIABLE TO PENALTY AS PER THE PROVISIONS OF SAID SECTION. 9. BEING AGGRIEVED, THE ASSESSEE AGAIN CARRIED THE MATTER IN APPEAL BEFORE THE LD CIT(A). THE LD. CIT(A) OBSERVED THAT ASSESSEE HAS N OT FILED VOLUNTARILY RETURN OF INCOME AND EXPLANATION 5 TO SECTION 271(1)(C) IS AL SO APPLICABLE BUT SINCE THE MANNER IN WHICH INCOME IS DERIVED IS NOT DISCLOSED, IT GOES TO SUGGEST THAT ASSESSEE INTENTION IS NOT CLEAR AND THUS HE IS NOT ENTITLED TO IMMUNITY PROVIDED IN THIS EXPLANATION. ACCORDINGLY, HE CONFIRMED THE LEVY OF PENALTY BY RESTRICTING IT TO 100% OF TAX SOUGHT TO BE EVADED. AGAINST THE SAID FINDIN GS AND THE ORDER OF THE LD CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 5 10. DURING THE COURSE OF HEARING, THE LD A/R ON BEH ALF OF THE ASSESSEE SUBMITTED THAT THE FIRST ISSUE INVOLVED IN THIS CASE IS WHETH ER EXPLANATION 5 TO SECTION 271(1)(C) IS ATTRACTED IN CASE OF REQUISITION U/S 1 32A OF THE ACT. 11. IN THIS REGARD, IT WAS SUBMITTED THAT THE LOWE R AUTHORITIES HAVE REFERRED TO SECTION 132A(3) WHERE IT IS MENTIONED THAT PROVISIO NS OF SUB-SECTION (4A) TO (14) OF SECTION 132 APPLIES TO A REQUISITION U/S 132A. HOWE VER, THEY HAVE IGNORED THAT SUB- SECTION (4) OF SECTION 132 WHICH PROVIDES FOR RECOR DING OF STATEMENT IS NOT APPLICABLE TO SECTION 132A. FURTHER, EXPLANATION 5 TO SECTION 271(1)(C) IS APPLICABLE ONLY TO A SEARCH INITIATED U/S 132. THERE IS NO REF ERENCE OF SECTION 132A IN EXPLANATION 5. FURTHER, AS PER SUB-SECTION (2) TO E XPLANATION 5, IMMUNITY IS PROVIDED IF THE ASSESSEE ADMITS OF UNDISCLOSED INCOME IN STA TEMENT U/S 132(4). AS SUB- SECTION (4) OF SECTION 132 IS NOT APPLICABLE IN CAS E OF A REQUISITION U/S 132A, EXPLANATION 5 TO SECTION 271(1)(C) IS NOT APPLICABL E IN CASE OF A REQUISITION U/S 132A. THEREFORE, THE OBSERVATION OF THE LOWER AUTHORITIES THAT SECTION 132A IS AT PAR WITH SECTION 132 AND THEREFORE IN EXPLANATION 5, ONCE RE FERENCE IS MADE TO SECTION 132 THEN THE SAME IS AUTOMATICALLY DEEMED TO INCLUDE RE FERENCE TO SECTION 132A IS INCORRECT INTERPRETATION OF THE LAW. THEREFORE, THE PENALTY IMPOSED BY AO AND CONFIRMED BY LD. CIT(A) BY INVOKING EXPLANATION 5 T O SECTION 271(1)(C) IS ILLEGAL AND BAD IN LAW AND IN SUPPORT, RELIANCE WAS PLACED ON T HE FOLLOWING CASE LAWS: ITO VS. NURUL HUDA G. ABOOBKAR (1995) 55 ITD 296 (B ANG.) (TRIB.) GULAMRASUL M. PATHAN VS. ACIT (1996) 57 ITD 129 (AH D.) (TRIB.) VINOD GOYAL VS ACIT (2008) 115 TTJ 559 (NAG) 12. IT WAS FURTHER SUBMITTED THAT THE LOWER AUTHORI TIES HAVE ALSO MENTIONED THAT ASSESSEE HAS NOWHERE INDICATED THE MANNER IN WHICH SUCH INCOME WAS DERIVED. IN THIS REGARD, IT WAS SUBMITTED THAT THE QUESTION OF MANNER WOULD COME INTO PICTURE WHEN A STATEMENT U/S 132(4) IS RECORDED WHICH IS NO T THE CASE HERE AS SECTION ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 6 132(4) IS NOT APPLICABLE IN A REQUISITION U/S 132A. IN ANY CASE ASSESSEE HAS EXPLAINED IN THE NOTES TO THE RETURN OF INCOME TH AT THE MONEY BELONGS TO HIS FOUR BROTHERS AND ALSO TO HIS BROTHER IN LAW WHO OWN 40 BIGHA OF IRRIGATED AGRICULTURAL LAND BUT STILL ON THE ADVICE OF HIS COUNSEL, HE HAS OFFERED THE SAME TO BE TAXED AS INCOME AND THEREFORE NO PENALTY U/S 271(1)(C) BE LE VIED AS THE SURRENDER IS VOLUNTARILY, SUO MOTO AND TO AVOID LITIGATION (THOU GH IT DONOT REPRESENT ASSESSEES INCOME AT ALL). IT WAS SUBMITTED THAT IT IS FOR THI S REASON THAT HONBLE SUPREME COURT REQUIRED THE AO TO VERIFY THE INCOME DECLARED IN TH E RETURN FILED EARLIER AND SUBSEQUENT TO AY 93-94. THE ASSESSEE HAS NOT FILED ANY RETURN PRIOR TO AY 93-94 BUT IN THE RETURN FILED FOR AY 93-94 AND IN SUBSEQU ENT YEAR, THE INCOME DECLARED IS ONLY THE INCOME UNDER THE HEAD HOUSE PROPERTY/ I NCOME FROM OTHER SOURCES. ALL THESE FACTS SHOWS THAT THE CASH OF RS. 5,92,340/- O FFERED IN THE RETURN IS JUST TO AVOID THE LITIGATION WHICH IS NEITHER A CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 13. IT WAS FURTHER SUBMITTED THAT OTHERWISE ALSO, MUCH IMPORTANCE CANNOT BE ATTACHED TO THE MANNER IN WHICH INCOME HAS BEEN DER IVED WHILE CONSIDERING THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. THE ALLAH ABAD HIGH COURT IN CASE OF CIT VS. RADHA KISHAN GOEL 278 ITR 454 WITH REFERENCE TO EXP LN. 5 TO SECTION 271(1)(C) HAS HELD THAT UNDER SEC. 132(4) OF THE ACT UNLESS THE A UTHORISED OFFICER PUTS A SPECIFIC QUESTION WITH REGARD TO THE MANNER IN WHICH INCOME HAS BEEN DERIVED, IT IS NOT EXPECTED FROM THE PERSON TO MAKE A STATEMENT IN THI S REGARD AND IN CASE, IN THE STATEMENT THE MANNER IN WHICH INCOME HAS BEEN DERIV ED HAS NOT BEEN STATED BUT HAS BEEN STATED SUBSEQUENTLY, THAT AMOUNTS TO THE C OMPLIANCE WITH EXPLN.5(2) OF THE ACT. WE ARE ALSO OF THE OPINION THAT IN CASE TH ERE IS NOTHING TO THE CONTRARY IN THE STATEMENT RECORDED UNDER S. 132(4) OF THE ACT, IN THE ABSENCE OF ANY SPECIFIC STATEMENT ABOUT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED, IT CAN BE INFERRED THAT SUCH UNDISCLOSED INCOME WAS DERIVED F ROM THE BUSINESS WHICH HE WAS CARRYING ON OR FROM OTHER SOURCES. THE OBJECT OF TH E PROVISION IS ACHIEVED BY MAKING ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 7 THE STATEMENT ADMITTING THE NON-DISCLOSURE OF MONEY , BULLION, JEWELLERY, ETC. THUS, WE ARE OF THE OPINION THAT MUCH IMPORTANCE SHOULD N OT BE ATTACHED TO THE STATEMENT ABOUT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED. IT CAN BE INFERRED ON THE FACTS AND CIRCUMSTANCES OF THE CASE , IN THE ABSENCE OF ANYTHING TO THE CONTRARY. THEREFORE, MERE NON-STATEMENT OF THE MANNER IN WHICH SUCH INCOME WAS DERIVED WOULD NOT MAKE EXPLN. 5(2) INAPPLICABLE . IN THE PRESENT CASE, IT WAS SUBMITTED THAT THE ASSESSEE HAS EXPLAINED THAT THE CASH DO NOT BELONG TO HIM BUT TO HIS BROTHER AND BROTHER IN LAW WHO HAS SUFFICIENT A GRICULTURAL INCOME BUT HE HAS INCLUDED THE CASH IN HIS INCOME ONLY TO AVOID LITIG ATION AND THEREFORE THIS EXPLANATION ITSELF CONSTITUTE THE MANNER IN WHICH T HE CASH IS DECLARED IN THE RETURN. THEREFORE, ON THE GROUND OF ALLEGED NON DISCLOSURE OF MANNER OF EARNING INCOME ALSO, PENALTY IMPOSED BY THE LOWER AUTHORITIES IS N OT JUSTIFIED. 14. IT WAS FURTHER SUBMITTED THAT ONCE EXPLANATION 5 TO SECTION 271(1)(C) IS NOT APPLICABLE, THE LEVY OF PENALTY WOULD BE GOVERNED B Y THE MAIN PROVISIONS OF SECTION 271(1)(C). SECTION 271(1)(C) ENVISAGES THE LEVY OF PENALTY WHERE THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED IN ACCURATE PARTICULARS OF SUCH INCOME. SUCH PENALTY IS LEVIED AT 100% TO 300% OF T HE AMOUNT SOUGHT TO BE EVADED. THEREFORE, THE LEVY OF PENALTY IS TO BE SEE N WITH REFERENCE TO THE NON DISCLOSURE OF INCOME IN THE ORIGINAL RETURN. IN THE PRESENT CASE, ASSESSEE HAS INCLUDED RS. 5,92,340/- IN THE ORIGINAL RETURN OF I NCOME FILED BEFORE THE DUE DATE U/S 139(1). THUS, THERE IS NO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME IN THE RETURN AND THEREFORE, NO PENALTY IS LEVIABLE U/S 271(1)(C). THEREFORE, THE PENALTY IMPOSED BY AO AND CONFIRMED BY LD. CIT(A) IS NOT JUSTIFIED AND AGAINST THE LAW. IN SUPPORT, RELIANCE WAS PLACED ON THE FOLLOWING CASES:- CIT VS. SAS PHARMACEUTICALS (2011) 335 ITR 259 (DEL .) PCIT VS. SHREE SAI DEVELOPERS (2019) 418 ITR 306 (G UJ.) SH. RAJENDRA SHRINGI VS. DCIT (2020) 77 ITR (TRIB) 0085 (JAIPUR) ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 8 VASAVI SHELTERS VS. ITO 141 ITD 590 (2013) (BANG.) DCIT VS. DR. SATISH B. GUPTA (2011) 49 DTR 262 (AHD .) CIT VS. RELIANCE PETROPRODUCTS (P) LTD. 322 ITR 158 (SC) 15. PER CONTRA, THE LD DR SUBMITTED THAT AS PER SU B-SECTION (3) OF SECTION 132A, PROVISIONS OF SUB-SECTION (4A) TO (14) OF SECTION 1 32(1) SHALL APPLY AS IF SUCH BOOKS OF ACCOUNTS, OTHER DOCUMENTS OR ASSETS HAVE BEEN SE IZED UNDER SUB-SECTION (1) TO SECTION 132. IT WAS SUBMITTED THAT A PLAIN READING OF SUB-SECTION (3) TO SECTION 132A REVEALS THAT SUB-SECTION (1) TO (4) OF SECTION 132(1) DEAL WITH THE PROCEDURAL ASPECTS OF CONDUCTING A SEARCH WHERE AS SUB-SECTION (4A) TO (14) OF SECTION 132(1) DEAL WITH THE MANNER IN WHICH THE RESULTS OF THE SE ARCH PROCEEDINGS HAVE TO BE CONSTRUED FOR THE PURPOSES OF ASSESSMENT OF INCOME, LEVY OF PENALTY, ETC. IT WAS SUBMITTED THAT SUB-SECTION (3) TO SECTION 132A HAS CATEGORICALLY PLACED REQUISITION PROCEEDINGS U/S 132A AT PAR WITH SEARCH PROCEEDINGS U/S 132 AND THEREFORE, EXPLANATION 5 APPLIED AS MUCH AS TO SECTION 132A AS IT DOES TO SECTION 132 OF THE ACT AND ONCE REFERENCE IS MADE TO SECTION 132 THEN THE SAME IS AUTOMATICALLY DEEMED TO INCLUDE REFERENCE TO SECTION 132A ALSO. I T WAS FURTHER SUBMITTED THAT THE ASSESSEE WAS NOT FILING ANY RETURN OF INCOME PRIOR TO A.Y 1993-94 AND SUBSEQUENTLY AND RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YE AR WAS FILED PURSUANT TO REQUISITION AND THUS, WAS NOT VOLUNTARILY IN NATURE . THE LD DR ACCORDINGLY SUPPORTED THE ORDER AND THE FINDINGS OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE PENALTY U/S 271(1)(C) READ WITH EXPLANATION 5 IS CLEARLY AT TRACTED IN THE INSTANT CASE AND THE SAME SHOULD BE SUSTAINED. 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FIRST ISSUE THAT ARISE FOR CONSIDERATIO N IS WHETHER EXPLANATION 5 TO SECTION 271(1)(C) IS ATTRACTED IN THE INSTANT CASE WHICH HAS BEEN INVOKED BY THE ASSESSING OFFICER AND WHICH IS UNDER CHALLENGE BEFO RE US. IN THIS REGARD, WE REFER TO THE PROVISIONS OF EXPLANATION 5 TO SECTION 271(1)(C ) WHICH READS AS UNDER: ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 9 EXPLANATION 5.WHERE IN THE COURSE OF A SEARCH INI TIATED 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 THI NG (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSETS) AND THE ASS ESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILISING (WHOLLY OR I N PART) HIS INCOME, (A) FOR ANY PREVIOUS YEAR WHICH HAS ENDED BEF ORE THE DATE OF THE SEARCH, BUT THE RETURN OF INCOME FOR SUCH YEAR HAS NOT BEEN FURNISH ED BEFORE THE SAID DATE OR, WHERE SUCH RETURN HAS BEEN FURNISHED BEFORE THE SAI D DATE, SUCH INCOME HAS NOT BEEN DECLARED THEREIN ; OR (B) FOR ANY PREVIOUS YEAR WHICH IS TO END ON OR AFTER T HE DATE OF THE SEARCH, THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF THE SEARCH, HE SH ALL, FOR THE PURPOSES OF IMPOSITION OF A PENALTY UNDER CLAUSE (C) OF SUB-SECTION (1) OF THIS SECTION, BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHE D INACCURATE PARTICULARS OF SUCH INCOME, UNLESS, (1) SUCH INCOME IS, OR THE TRANSACTIONS RESULTING IN SU CH INCOME ARE RECORDED, (I) IN A CASE FALLING UND ER CLAUSE (A), BEFORE THE DATE OF THE SEARCH; AND (II) IN A CASE FALLING UNDER CLAUSE (B), ON OR BEFORE SU CH DATE, IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME OR SUCH INCOME IS OTHERWISE DISCLOSED TO THE PRINCIPAL CH IEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER BEFORE THE S AID DATE ; OR (2) HE, IN THE COURSE OF THE SEARCH, MAKES A STATEMENT UNDER SUB- SECTION (4) OF SECTION 132 THAT ANY MONEY, BU LLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND IN HIS POSSESSION OR UNDER HIS CONTROL, HAS BEEN ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCLOSED SO FAR IN HIS R ETURN OF INCOME TO BE ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 10 FURNISHED BEFORE THE EXPIRY OF TIME SPECIFIED IN SU B-SECTION (1) OF SECTION 139 , AND ALSO SPECIFIES IN THE STATEMENT THE MANNER IN W HICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX, TOGETHER WITH INTEREST, I F ANY, IN RESPECT OF SUCH INCOME. 17. THE SAID EXPLANATION CAME UP FOR CONSIDERATION BEFORE THE HONBLE DELHI HIGH COURT IN CASE OF PRINCIPAL CIT VS NEERAJ JINDAL REPORTED IN 393 ITR 1 AND IT WOULD BE RELEVANT TO REFER TO THE FINDINGS OF TH E HONBLE HIGH COURT WHICH HELD AS UNDER: 23. EXPLANATION-5 TO SECTION 271(1) WAS INSERTED B Y THE TAXATION LAWS (AMENDMENT) ACT, 1984, WITH EFFECT FROM 1 OCTOBER, 1984. THE EXPLANATION IS APPLICABLE TO CASES WHERE IN THE COURSE OF A SEARCH UNDER SECTION 132 OF THE ACT, THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY M ONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING. IN SUCH CASES, IF THE ASSESSEE CLAIMS THAT THESE ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILIZING (WHOL LY OR IN PART) HIS INCOME FOR ANY PREVIOUS YEAR WHICH HAS ENDED BEFORE THE DA TE OF THE SEARCH, BUT THE RETURN OF INCOME FOR SUCH YEAR HAS NOT BEEN FURNISH ED BEFORE THE SAID DATE, OR WHERE SUCH RETURN HAS BEEN FURNISHED BEFORE THE SAID DATE, SUCH INCOME HAS NOT BEEN DECLARED IN THE RETURN, OR SUCH PREVIO US YEAR IS TO END ON OR AFTER THE DATE OF THE SEARCH, THE ASSESSEE SHALL, F OR THE PURPOSES OF IMPOSITION OF PENALTY UNDER SECTION 271(1 )(C) OF THE ACT, BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME. THIS EXPLANATION HAS BEEN INSERTED TO ADDRESS SITUATIONS WHERE CONSEQUENT TO A SEARCH, ASSETS AND VALUABLES ARE DISCOVERED TO BE IN THE POSSESSION OF THE ASSESSEE, AND THEREA FTER THE ASSESSEE FILES RETURN OF INCOME AFTER THE DATE OF SEARCH. IN SUCH CASES, EVEN IF THE ASSESSEE INCLUDES THE AMOUNTS UTILIZED BY HIM IN ACQUIRING T HE ASSETS FOUND IN HIS POSSESSION DURING THE SEARCH OPERATIONS AS HIS INCO ME IN THE RETURN FILED AFTER THE SEARCH, THE ASSESSEE WOULD BE DEEMED TO HAVE CO NCEALED HIS INCOME. ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 11 THUS, PARLIAMENT HAS CREATED A DEEMING FICTION BY V IRTUE OF WHICH IN SUCH CASES, EVEN IF THE ASSESSEE INCLUDES SUCH INCOME (W HICH REPRESENTS THE VALUE OF THE ASSETS FOUND IN HIS POSSESSION DURING THE SE ARCH) IN HIS RETURN FILED AFTER THE SEARCH, IT WILL BE DEEMED THAT SUCH RETUR N DISCLOSING HIGHER INCOME WAS FILED ONLY BECAUSE THE ASSETS WERE FOUND IN HIS POSSESSION DURING THE SEARCH. PUT DIFFERENTLY, IF NOT FOR THE SEARCH, THE LEGISLATURE DEEMS THAT THE ASSESSEE WOULD NOT HAVE DISCLOSED SUCH INCOME IN TH E RETURN FILED SUBSEQUENTLY. EXPLANATION-5 ALSO CONTAINS TWO EXCEP TIONS, WHERE THE ASSESSEE WOULD NOT BE DEEMED TO HAVE CONCEALED HIS INCOME AND WOULD GAIN IMMUNITY FROM LEVY OF PENALTY- FIRST, IF SUCH INCOM E IS OR THE TRANSACTIONS RESULTING IN SUCH INCOME ARE RECORDED IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME OR SUCH INCOM E WAS OTHERWISE DISCLOSED TO THE PRINCIPAL CHIEF COMMISSIONER OR CH IEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER BEFORE THE D ATE OF THE SEARCH; SECOND, IN THE COURSE OF THE SEARCH, THE AS SESSEE MAKES A STATEMENT UNDER SECTION 132(4) THAT THE ASSETS FOUND IN HIS P OSSESSION HAVE BEEN ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCL OSED SO FAR IN HIS RETURN OF INCOME TO BE FURNISHED BEFORE THE EXPIRY OF THE TIM E SPECIFIED IN SECTION 139(1), AND ALSO SPECIFIES IN THE STATEMENT THE MAN NER IN WHICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX TOGETHER WITH INT EREST, IF ANY, IN RESPECT OF SUCH INCOME. 24. THE PURPOSE OF INSERTING EXPLANATION-5 IN THE S TATUTE BOOKS WAS EXPLAINED BY THE SUPREME COURT IN K.P. MADHUSUDAN V. COMMISSI ONER OF INCOME TAX, (2001 251 ITR 99, WHEREIN THE COURT HELD- LEARNED COUNSEL FOR THE ASSESSEE THEN DREW OUR ATT ENTION TO THE JUDGEMENT OF THIS COURT IN SIR SHADILAL SUGAR AND G ENERAL MILLS LTD. V. CIT (1987) 168 ITR 705. HE SUBMITTED THAT THE ASSES SEE HAD AGREED TO THE ADDITIONS TO HIS INCOME REFERRED TO HEREINABOVE TO BUY PEACE AND IT DID NOT FOLLOW THEREFROM THAT THE AMOUNT THAT WAS A GREED TO HE ADDED ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 12 WAS CONCEALED INCOME. THAT IT DID NOT FOLLOW THAT T HE AMOUNT AGREED TO BE ADDED WAS CONCEALED INCOME IS UNDOUBTEDLY WHAT W AS LAID DOWN BY THIS COURT IN THE CASE OF SIR SHADILAL SUGAR AND GE NERAL MILLS LTD. (1987) 168 ITR 705 AND THAT THEREFORE, THE REVENUE WAS REQ UIRED TO PROVE THE MENS REA OF A QUASI-CRIMINAL OFFENCE. BUT IT WAS BE CAUSE OF THE VIEW TAKEN IN THIS AND OTHER JUDGMENTS THAT THE EXPLANAT ION TO SECTION 271 WAS ADDED. 25. THIS SHOWS THAT EXPLANATION-5 WAS SPECIFICALLY INSERTED TO DEAL WITH THE SITUATION WHERE HIGHER INCOME WAS DISCLOSED IN THE RETURN FILED CONSEQUENT TO A SEARCH OPERATION, AND THE ASSESSEE CLAIMED THAT S UCH ADDITION OF INCOME DID NOT IMPLY THAT THERE WAS CONCEALMENT. IN OTHER WORD S, BUT FOR THE INSERTION OF EXPLANATION-5, IT WOULD BE OPEN TO THE ASSESSEE TO CONTEND THAT ADDITIONS MADE TO HIS INCOME IN THE RETURN FILED AFTER THE SE ARCH OPERATION, WERE ONLY TO BUY PEACE AND DID NOT TANTAMOUNT TO CONCEALMENT. TH IS ALSO FLOWS FROM THE LANGUAGE OF EXPLANATION-5 ITSELF, WHEREIN THE WORDS USED BY THE LEGISLATURE ARE BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME, WHICH SHOWS THAT THERE IS A DEEMING FICTION BY VIRTUE OF WHICH SUCH ADDITIONAL INCOME IS CONSIDERED AS CONCEALMENT. IF SUCH ADDITI ONS IN THE INCOME IN THE RETURN FILED CONSEQUENT TO A SEARCH, WERE TO AUTOMA TICALLY EVIDENCE CONCEALMENT UNDER SECTION 271(1)(C), THERE WOULD BE NO NEED FOR PARLIAMENT TO ENACT A DEEMING FICTION IN THE FORM OF EXPLANATI ON-5; SUCH A READING WOULD RENDER EXPLANATION-5 OTIOSE AND WITHOUT ANY PURPOSE . THIS IS ALSO CONSONANT WITH THE VIEW ARRIVED AT IN THE EARLIER PART OF THI S DECISION, I.E. MERE INCREASE OF INCOME IN THE RETURN FILED PURSUANT TO SECTION 1 53A WOULD NOT BE SUFFICIENT TO SHOW CONCEALMENT UNDER SECTION 271(1)(C). 26. NOW FOR THE REVENUE TO INVOKE EXPLANATION-5, IT WOULD HAVE TO PROVE THAT ITS REQUIREMENTS ARE CLEARLY FULFILLED IN THE PRESE NT CASE. IN ORDER FOR ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 13 EXPLANATION-5 TO APPLY, IT IS NECESSARY THAT THERE MUST BE CERTAIN ASSETS (SUCH AS MONEY, BULLION ETC.) FOUND IN THE POSSESSION OF THE ASSESSEE DURING THE SEARCH, AND THAT THE ASSESSEE MUST CLAIM THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILISING (WHOLLY OR IN PART) HI S INCOME. MOREOVER, SUCH INCOME MUST BE IN RELATION TO A PARTICULAR PREVIOUS YEAR THAT HAS EITHER ENDED BEFORE THE DATE OF THE SEARCH OR IS TO END ON OR AF TER THE DATE OF THE SEARCH AND SUCH INCOME IS DECLARED SUBSEQUENTLY IN THE RET URN OF INCOME FILED AFTER THE SEARCH. THEREFORE, IT IS ONLY WHEN ASSETS ARE F OUND DURING THE SEARCH WHICH THE ASSESSEE CLAIMS HAVE BEEN ACQUIRED BY HIM BY UTILIZING (WHOLLY OR IN PART) HIS INCOME FOR ANY PARTICULAR PREVIOUS YEA R, AND THEN DECLARES SUCH INCOME (WHICH HE UTILIZED IN ACQUIRING THE ASSETS F OUND) IN A SUBSEQUENT RETURN FILED AFTER THE DATE OF SEARCH, WOULD IT BE DEEMED THAT THE ASSESEE HAS CONCEALED HIS INCOME. IN OTHER WORDS, THE ASSETS SE IZED DURING THE SEARCH MUST RELATE TO THE INCOME OF THE PARTICULAR ASSESSM ENT YEAR WHOSE RETURN IS FILED AFTER THE DATE OF THE SEARCH. SUCH A CONCLUSI ON IS ONLY LOGICAL, CONSIDERING THAT ASSESSMENT UNDER THE ACT IS WITH R ESPECT TO A PARTICULAR ASSESSMENT YEAR AND THE PENALTY IMPOSED UNDER SECTI ON 271(1)(C) WOULD ALSO BE FOR CONCEALING INCOME IN THAT PARTICULAR ASSESSM ENT YEAR, WHICH CONCEALMENT WAS REVEALED BY THE DISCOVERY OF CERTAI N ASSETS IN THE ASSESSEES POSSESSION DURING THE SEARCH CONDUCTED UNDER SECTIO N 132. 18. IN LIGHT OF ABOVE, FOR THE REVENUE TO INVOKE EX PLANATION-5, IT WOULD HAVE TO PROVE THAT ITS REQUIREMENTS ARE CLEARLY FULFILLED I N THE PRESENT CASE. IT IS NECESSARY THAT THERE MUST BE CERTAIN ASSETS (SUCH AS MONEY, B ULLION ETC.) FOUND IN THE POSSESSION OF THE ASSESSEE DURING THE COURSE OF SEA RCH, AND THAT THE ASSESSEE MUST CLAIM THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILISING (WHOLLY OR IN PART) HIS INCOME. IN THE INSTANT CASE, THE ASSESSEE WAS APPRE HENDED BY THE POLICE THANA, SIKAR WITH CASH AMOUNTING TO RS.5,92,340/- ON 08.04 .92 AND THE CASH WAS SEIZED BY THE POLICE AND INCOME TAX DEPARTMENT WAS INFORMED. THEREAFTER, ON 09.04.92, THE ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 14 INCOME TAX DEPARTMENT INITIATED REQUISITION PROCEED INGS U/S 132A AND DREW A PANCHNAMA AND TAKEN POSSESSION OF CASH IN PURSUANCE OF WARRANT U/S 132A OF THE INCOME TAX ACT 1961. IT IS THEREFORE A SITUATION WH ERE CASH HAS BEEN FOUND IN POSSESSION OF THE ASSESSEE WHICH WAS SEIZED BY THE POLICE DEPARTMENT AND THEREAFTER REQUISITIONED U/S 132A FROM THE POLICE D EPARTMENT AND IT IS NOT A SITUATION WHERE CASH HAS BEEN FOUND IN POSSESSION O F THE ASSESSEE DURING THE COURSE OF SEARCH INITIATED AT THE ASSESSEES PREMIS ES U/S 132 OF THE ACT AND GOING BY THE PLAIN AND STRICT READING OF THE PROVISIONS O F EXPLANATION 5 WHICH TALKS ONLY ABOUT THE SITUATION ARISING OUT OF SEARCH PROCEEDIN GS INITIATED U/S 132 AND NOT REQUISITION PROCEEDINGS U/S 132A, THE ESSENTIAL CON DITION FOR INVOCATION OF EXPLANATION 5 IS NOT FULFILLED IN THE INSTANT CASE AND GOING BY THE STRICT RULE OF INTERPRETATION OF PENALTY PROVISIONS, EXPLANATION 5 CANNOT BE INVOKED IN THE INSTANT CASE. 19. NOW, COMING TO THE CONTENTION OF THE LD DR THAT SUB-SECTION (3) TO SECTION 132A HAS CATEGORICALLY PLACED REQUISITION PROCEEDIN GS U/S 132A AT PAR WITH SEARCH PROCEEDINGS U/S 132 AND THEREFORE, EXPLANATION 5 AP PLIED AS MUCH AS TO SECTION 132A AS IT DOES TO SECTION 132 OF THE ACT AND ONCE REFERENCE IS MADE TO SECTION 132 THEN THE SAME IS AUTOMATICALLY DEEMED TO INCLUDE RE FERENCE TO SECTION 132A ALSO. WE FIND THAT SIMILAR CONTENTION HAS BEEN ADVANCED I N CASE OF ITO VS NURUL HUDA G. ABOOBKAR (SUPRA) BEFORE THE BANGALORE BENCHES OF THE TRIBUNA L AND THE RELEVANT FINDINGS OF THE COORDINATE BENCH READ AS U NDER: 5. THERE IS NO DOUBT ABOUT THE FACT THAT CONCEALME NT OF INCOME, IF ANY, IS TO BE RATHER WITH REFERENCE TO THE RETURNED INCOME FIL ED BY THE ASSESSEE. IN THIS CASE, THE ASSESSEE HIMSELF OFFERED THE AMOUNT AS HI S INCOME AND NO FURTHER ADDITION WAS MADE IN THE ASSESSMENT. HENCE, CONCEAL MENT AS SUCH, CANNOT BE CONSIDERED TO HAVE TAKEN PLACE. LET US NOW COME TO THE QUESTION OF WHETHER EXPLANATION 5 TO SECTION 271(1)(C) WOULD BE APPLICABLE TO THE PRESENT CASE. SECTION 132 ALONE RELATES TO SEARCH AND SEIZU RE PROCEEDING CONDUCTED ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 15 BY THE IT DEPARTMENT. ON THE OTHER HAND, SECTION 13 2A RELATES TO BOOKS OF ACCOUNT AND OTHER ASSETS SEIZED DURING THE COURSE O F SEARCH PROCEEDINGS CONDUCTED BY OTHER DEPARTMENTS. THE HEADING OF SECT ION 132A IS POWERS TO REQUISITION BOOKS OF ACCOUNT, ETC.,'. IT IS, THEREF ORE, CLEAR THAT THIS PARTICULAR SECTION ALTHOUGH, MAY BE ANALOGOUS TO THE PROVISION S OF SECTION 132 DEALING WITH SEARCH AND SEIZURE PROCEEDINGS TAKEN RECOURSE TO BY OTHER DEPARTMENTS, AGAIN AT THE SAME TIME CANNOT BE CONSIDERED TO CONV EY THE IDEA THAT IN THE CASE OF REQUISITION OF BOOKS, ASSETS, ETC., BY THE DEPARTMENT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 132A ALSO, IT IS THE IT DEPARTMENT WHICH HAS CONDUCTED THE SEARCH AND SEIZURE PROCEEDINGS. EXPLA NATION 5 TO SECTION 271(1)(C) STARTS WITH THE FOLLOWING CLAUSE 'WHEREIN THE COURSE OF A SEARCH UNDER SECTION 132'. THIS PARTICULAR EXPLANATION CAN NOT, THEREFORE, BE CONSIDERED TO APPLY TO A CASE WHERE PROCEEDINGS UND ER SECTION 132A ONLY HAVE BEEN TAKEN RECOURSE TO. IT IS CORRECT THAT THE PROVISIONS OF SUB- SECTIONS (4A) TO (14) (BOTH INCLUSIVE) OF SECTION 132 SHALL, SO FAR AS MAY BE, APPLY TO PROCEEDINGS UNDER SECTION 132A ALSO, AS IF SUCH BOO KS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS HAD BEEN SEIZED UNDER SECTION 1 32(1) BY THE REQUISITIONING OFFICER. THIS DEEMING PROVISION CANN OT, HOWEVER, APPLY TO ANOTHER DEEMING PROVISION CONTAINED IN EXPLANATION 5 TO SECTION 271(1)(C). FURTHERMORE, INASMUCH AS THE PROVISIONS OF SUB-SECT ION (4) OF SECTION 132 DOES NOT APPLY TO A PROCEEDING UNDER SECTION 132A, THE ASSESSEE, IN THE CASE OF A PROCEEDING UNDER SECTION 132A IS NOT ENTITLED TO THE OPPORTUNITY OF MAKING A DISCLOSURE UNDER SUCH SUB-SECTION (4) OF S ECTION 132. IF IN SUCH A CASE, THE PROVISIONS OF EXPLANATION 5 TO SECTION 27 1(1)(C) APPLIES, IT WILL BE A CASE OF BEATING A PERSON WITH HIS HANDS AND FEET BO UND WITHOUT ANY OPPORTUNITY TO COME OUT OF THE MISCHIEF OF THE AFOR ESAID EXPLANATION 5 BY MAKING THE DISCLOSURE UNDER SECTION 132(4), TO WHIC H OPPORTUNITY AN ASSESSEE IN WHOSE CASE PROPER SEARCH UNDER SECTION 132(1) HA S BEEN CONDUCTED, IS ENTITLED. TAKING INTO CONSIDERATION ALL THESE FACTS , THEREFORE, WE ARE OF THE ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 16 OPINION THAT EXPLANATION 5 TO SECTION 271(1)(C) DOE S NOT APPLY TO A CASE OF REQUISITIONING OF ASSETS UNDER THE PROVISIONS OF SE CTION 132A. THE INSTANT CASE ALSO, THEREFORE, WOULD NOT FALL WITHIN THE MISCHIEF OF THE SAID EXPLANATION. HENCE, WE AGREE WITH THE DECISION OF THE CIT(A) THA T PENALTY UNDER SECTION 271(1)(C) IS NOT EXIGIBLE IN THE PRESENT CASE. WE U PHOLD THE CANCELLATION OF THE PENALTY. 20. SIMILAR, THE MATTER AGAIN CAME UP FOR CONSIDERA TION BEFORE AHMEDABAD BENCHES OF THE TRIBUNAL IN CASE OF GULAMRASUL M. PATHAN VS ACIT (SUPRA) AND IT WAS HELD AS UNDER: 14. A PLAIN READING OF THE PROVISIONS CONTAINED IN EXPLANATION 5 TO SECTION 271 (1)(C) CLEARLY REVEALS THAT THE PRESUMPTION AS TO DEEMED CONCEALMENT OF THE PARTICULARS OF INCOME OR DEEMED FURNISHING OF I NACCURATE PARTICULARS OF INCOME IN RELATION TO UN-DISCLOSED ASSETS OR UN-DIS CLOSED INCOME IS APPLICABLE ONLY IN RELATION TO A CASE WHERE IN THE COURSE OF A SEARCH UNDER SECTION 132, THE ASSESSEE IS FOUND TO BE OWNER OF ANY SUCH UN-DI SCLOSED MONEY OR OTHER ASSETS ETC. THEREFORE, THE CRUCIAL QUESTION WHICH R EQUIRES OUR DECISION IN THE PRESENT CASE IS WHETHER THE ASSETS REQUISITIONED BY THE IT AUTHORITIES FROM THE ENFORCEMENT OFFICERS OF OTHER GOVERNMENT DEPART MENT UNDER SECTION 132A CAN BE REGARDED AS ASSETS FOUND IN THE COURSE OF SEARCH UNDER SECTION 132 AND WHETHER EXPLANATION 5 TO SECTION 271 (1)(C) CAN BE APPLIED IN RELATION TO UN-DISCLOSED ASSETS REQUISITIONED BY TH E DEPARTMENT UNDER SECTION 132 A. THE EXPRESSION SEARCH USED IN SECTION 132 AS WELL AS IN EXPLANATION 5 TO SECTION 271(1)(C) IS CLEARLY DIFFERENT AND DISTI NCT THAN THE EXPRESSION REQUISITION MADE UNDER SECTION 132A. THE ASSETS FOU ND IN THE COURSE OF SEARCH UNDER SECTION 132 CANNOT THEREFORE, BE EQUAT ED WITH THE ASSETS REQUISTIONED BY THE IT DEPARTMENT FROM OTHER GOVERN MENT DEPARTMENTS UNDER SECTION 132A. NO SEARCH IS REQUIRED TO BE MAD E IN RESPECT OF AN ASSET WHICH HAS ALREADY BEEN FOUND, DETECTED AND SEIZED B Y OTHER GOVERNMENT ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 17 AGENCIES. THE QUESTION OF MAKING A REQUISITION UNDE R SECTION 132A WILL COME INTO EXISTENCE ONLY AFTER THE ASSETS HAVE ALREADY B EEN FOUND BY SOME OTHER GOVERNMENT AGENCY. THE EXPRESSION 'SEARCH' AND 'SEI ZURE' NECESSARILY IMPLIES A FORCIBLE EXACTION FOR SEARCHING AND TAKIN G POSSESSION FROM THE OWNER OR ONE WHO HAS THE POSSESSION AND WHO IS UN-W ILLING TO PART WITH THE POSSESSION. ON THE OTHER HAND, THE REQUISITION BY O NE WING OF THE GOVERNMENT UNDER THE AUTHORITY OF LAW SUCH AS SECTI ON 132A FROM OTHER AGENCY OF THE GOVERNMENT CANNOT BE TREATED AS A FOR CIBLE ACTION LIKE SEARCH AND SEIZURE. THE PROVISIONS RELATING TO SEARCH AND SEIZURE CONTAINED IN SECTION 132 AND THE PROVISIONS RELATING TO REQUISITION OF B OOKS OF ACCOUNTS AND ASSETS FROM OTHER GOVERNMENT DEPARTMENTS CONTAINED IN SECT ION 132A ARE CLEARLY DIFFERENT AND DISTINCT IN NATURE. PRIOR TO INSERTIO N OF SECTION 132A BY THE TAXATION LAWS (AMENDMENT) ACT, 1975, IT WAS HEL D BY VARIOUS COURTS THAT THE MONEY, ETC. SOUGHT TO BE SEIZED MUST HAVE BEEN IN THE POSSESSION OF THE PERSON WHO HAD COMMITTED A DEFAULT BY NOT DISCLOSIN G THE SAME FOR THE PURPOSES OF IT ACT. IT FOLLOWED THAT LAWFUL SEIZURE COULD NOT BE EFFECTED IF THE MONEY ETC. TO BE SEIZED HAD ALREADY BEEN SEIZED BY, AND WAS IN POSSESSION AND CONTROL OF, ANOTHER GOVERNMENT AUTHORITY, SUCH AS THE POLICE DEPARTMENT OR EXCISE DEPARTMENT. SUCH A VIEW IS CLEARLY SUPPOR TED BY THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF TARSEM KUMAR ( SUPRA). THAT IS WHY PERHAPS SECTION 132A WAS INTRODUCED IN THE IT ACT B Y THE AFORESAID AMENDING ACT. 15. THE PROVISIONS OF EXPLANATION 5 TO SECTION 271( 1)(C) CANNOT BE MADE APPLICABLE IN RELATION TO ASSET REQUISITIONED UNDER SECTION 132 A MERELY BECAUSE SECTION 132A(3) PROVIDES THAT THE PROVISION S OF SECTION 132(4A) TO (14) SHALL, SO FAR AS MAY BE, APPLIED AS IF SUCH AS SETS OR BOOKS OF ACCOUNTS HAD BEEN SEIZED BY THE REQUISITIONING OFFICER FROM THE CUSTODY OF THE PERSONS REFERRED TO IN THAT SECTION. SOME OF THESE PROVISIO NS CONTAINED IN SECTION 132 HAVE BEEN INCORPORATED ONLY FOR THE PURPOSES OF CLARIFYING THAT THOSE ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 18 ASSETS SHALL BE DEALT WITH IN ACCORDANCE WITH THE P ROVISIONS PROVIDED FOR IN THOSE SUB-SECTIONS OF SECTION 132. BUT THIS CANNOT BE INTERPRETED TO MEAN THAT EXPLANATION 5 TO SECTION 271(1)(C) CAN ALSO BE MADE APPLICABLE IN RELATION TO INCOME REPRESENTED BY ASSETS REQUISITIO NED AS PER SECTION 132A. 16. IT IS WELL-SETTLED LAW THAT A DEEMING PROVISION MUST BE CONSTRUED STRICTLY AND IF A PARTICULAR AMOUNT OF INCOME COMES WITHIN T HE STRICT AMBIT OF SUCH A PROVISION, THEN AND THEN ONLY THE ASSESSEE SHOULD B E MADE LIABLE UNDER SUCH A PROVISION. THE AFORESAID RULE OF STRICT CONSTRUCT ION OF A STATUTORY PROVISION IS APPLICABLE WITH GREATER FORCE IN RELATION TO A PENA LTY PROVISION. PENALTY CAN BE LEVIED ONLY IF THE CASE CLEARLY AND SPECIFICALLY FA LL WITHIN THE TERMS AND LANGUAGE OF THE PARTICULAR STATUTE. SUCH PROVISIONS SHOULD THEREFORE BE INTERPRETED ON THE BASIS OF A PLAIN MEANING OF THE LANGUAGE OF THE SECTION RATHER THAN COVERING WITHIN ITS AMBIT. THE ALTERNAT IVE AND DOUBTFUL INTERPRETATIONS ARE BASED ON OTHER CONNECTED PROVIS IONS. EVEN IF IT IS FOUND THAT THE LANGUAGE OF A PENALTY PROVISION IS AMBIGUO US OR CAPABLE OF MORE THAN ONE MEANING, THEN THE VIEW WHICH IS FAVOURABLE TO THE ASSESSEE HAS TO BE ADOPTED. SUCH A VIEW IS CLEARLY SUPPORTED BY THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT V. VEGETABLE PRODU CTS LTD. [1973] 88 ITR 192 RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSE SSEE. IN THE PRESENT CASE, THE LANGUAGE OF EXPLANATION 5 TO SECTION 271(1)(C) IS ABSOLUTELY CLEAR AND IT EXPLICITLY PROVIDES THAT 'WHERE IN THE COURSE OF A SEARCH UNDER SECTION 132', THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY, OR OTHER VALUABLE ARTICLES ETC. AND SUCH ASSETS HAVE NOT BEEN DISCLOS ED, THE ASSESSEE SHALL BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INC OME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. THE PLAIN LA NGUAGE OF THE SAID PROVISION CLEARLY EXCLUDES THE APPLICABILITY THEREO F IN A CASE WHERE THE INCOME IS REPRESENTED BY AN UNDISCLOSED ASSETS REQUISITION ED BY THE IT DEPARTMENT FROM THE ENFORCEMENT DEPARTMENT UNDER SECTION 132A. THE ITAT, DELHI IN THE ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 19 CASE OF AMIR CHAND(SUPRA) HAS ALSO TAKEN THE VIEW T HAT EXPLANATION 5 TO SECTION 271(1)(C) IS APPLICABLE ONLY IN PROCEEDI NGS UNDER SECTION 132 AND CANNOT BE APPLIED WHILE DEALING WITH A CASE OF SURV EY UNDER SECTION 133 A. 17. WE ARE, THEREFORE, OF THE CONSIDERED OPINION TH AT NO PENALTY COULD BE LEVIED ON THE FACTS AND CIRCUMSTANCES OF THE PRESEN T CASE BY INVOKING EXPLANATION 5 TO SECTION 271(1)(C). ONCE THE SAID E XPLANATION 5 TO SECTION 271(1)(C) IS HELD TO BE IN APPLICABLE ON THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, NO PENALTY CAN BE LEVIED UNDER SECTIO N 271 (1)(C) UNDER ANY OF THE OTHER PROVISIONS CONTAINED IN THAT SECTION. IT IS WELL SETTLED LAW THAT AN ATTEMPT TO CONCEAL OR A PLANNING MADE FOR CONCEALME NT OF INCOME BY ITSELF WOULD NOT ATTRACT LEVY OF PENALTY UNDER SECTION 271 (1)(C) UNLESS THE ACTUAL OFFENCE OF CONCEALMENT IS COMMITTED. THE ACT OF CON CEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME TAKES PLACE ONLY W HEN A RETURN OF INCOME IS FILED AND THE INCOME IN QUESTION IS NOT DISCLOSED I N SUCH RETURN OF INCOME. THE DEFAULT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME OR THE ACT OF CONCEALMENT OF INCOME CAN TAKE PLACE ONLY WHEN THE DISPUTED AMOUNT OF INCOME HAS NOT BEEN DISCLOSED IN THE RETURN. IN THE PRESENT CASE, IT IS AN UNDISPUTED FACT THAT THE ASSESSEE DULY PAID ADVANCE TAX ON THE AMOUNT IN QUESTION, THE SAID AMOUNT OF INCOME REPRESENTED BY CASH FOUND WAS ALSO INCLUDED AS ASSESSEE'S INCOME IN THE RETURN OF INCO ME SUBMITTED BY THE ASSESSEE. SUCH A VIEW IS CLEARLY SUPPORTED BY THE J UDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF BRIJ MOHAN V. CIT [197 9] 120 ITR 1. 18. IN VIEW OF THE AFORESAID FACTS AND DISCUSSIONS, WE ARE OF THE CONSIDERED OPINION THAT NO PENALTY CAN BE VALIDLY IMPOSED UPON THE ASSESSEE UNDER THE AFORESTATED FACTS AND CIRCUMSTANCES. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO CANCEL THE SAID PENALTY. ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 20 21. FURTHER, IN ANOTHER CASE OF VINOD GOYAL VS ACIT (SUPRA), SIMILAR CONTENTIONS WERE CONSIDERED AND THE RELEVANT FINDINGS OF THE CO ORDINATE BENCH READ AS UNDER: AS IS EVIDENT FROM THE PROVISIONS OF EXPLANATION 5 EXTRACTED ABOVE, ANY MONEY, BULLION, JEWELLERY AND OTHER VALUABLES OR TH INGS FOUND TO BE OWNED BY THE ASSESSEE DURING THE COURSE OF SEARCH UNDER SECT ION 132 IS DEEMED TO BE THE CONCEALMENT ON THE PART OF THE ASSESSEE SUBJECT TO THE FULFILMENT OF CONDITION AS STIPULATED THEREIN. THIS DEEMING FICTI ON CREATED BY EXPLANATION 5, HOWEVER, IS MADE APPLICABLE SPECIFICALLY WHERE T HE ASSESSEE IS FOUND TO BE THE OWNER OF MONEY OR OTHER VALUABLES DURING THE CO URSE OF A SEARCH UNDER SECTION 132 AND THE SAME, THEREFORE, CANNOT BE EXTE NDED WHERE THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY OR OTHER VALU ABLES AS A RESULT OF REQUISITION MADE UNDER SECTION 132A AS IS THE POSIT ION IN THE PRESENT CASE. EXPLANATION 5 THUS CANNOT BE INVOKED IN THE P RESENT CASE OF THE ASSESSEE SINCE THERE WAS NO SEARCH CONDUCTED IN HIS CASE UNDER SECTION 132 AND HE WAS FOUND TO BE THE OWNER OF CASH AS A RESUL T OF REQUISITION MADE UNDER SECTION 132A. THE RELIANCE OF THE LEARNED CIT (A) ON THE SAID EXPLANATION TO CONFIRM THE PENALTY IMPOSED UND ER SECTION 271(1)(C) THUS WAS CLEARLY MISPLACED. ON THE OTHER HAND, THE CASH FOUND BY THE POLICE DEPARTMENT FROM THE POSSESSION OF THE EMPLOYEE OF T HE ASSESSEE AND SUBSEQUENTLY REQUISITIONED BY THE INCOME-TAX DEPART MENT UNDER SECTION 132A WAS SURRENDERED BY THE ASSESSEE AS HIS INCOME FOR T HE YEAR UNDER CONSIDERATION IN HIS STATEMENT RECORDED DURING THE COURSE OF SURVEY AND IN THE RETURN OF INCOME FILED FOR THE SAID YEAR IN THE REGULAR COURSE, THE SAID AMOUNT WAS DULY SHOWN BY THE ASSESSEE. EVEN THE ASS ESSING OFFICER HIMSELF NOT ONLY COMPLETED THE ASSESSMENT UNDER SECTION 153 A WITH REFERENCE TO THE SAID RETURN FILED BY THE ASSESSEE, BUT EVEN ACCEPTE D THE INCOME AS DECLARED BY THE ASSESSEE IN THE SAID RETURN. IT IS BY NOW WE LL SETTLED THAT THE CONCEALMENT AS ENVISAGED IN SECTION 271(1)(C) HAS T O BE INFORMED ON THE ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 21 BASIS OF RETURN OF INCOME FILED BY THE ASSESSEE AND THE INCOME WHICH IS ALREADY DECLARED BY THE ASSESSEE IN HIS RETURN OF I NCOME FILED IN THE REGULAR COURSE CANNOT BE TREATED AS HIS CONCEALED INCOME. I N THE PRESENT CASE, THE AMOUNT OF RS. 46,85,855 REPRESENTING CASH FOUND FRO M THE POSSESSION OF HIS EMPLOYEE WAS NOT ONLY DECLARED BY THE ASSESSEE AS H IS INCOME IN THE RETURN FILED REGULARLY FOR THE YEAR UNDER CONSIDERATION, B UT THE RETURN SO FILED WAS ALSO ACCEPTED BY THE ASSESSING OFFICER IN THE ASSES SMENT COMPLETED UNDER SECTION 153A AND THIS BEING THE UNDISPUTED POSITION , WE ARE OF THE CONSIDERED VIEW THAT THE SAME COULD NOT BE TREATED AS CONCEALM ENT OF PARTICULARS OF HIS INCOME BY THE ASSESSEE OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME ATTRACTING THE PENAL PROVISIONS OF SECTION 271(1)(C ). IN THAT VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER OF THE LEAR NED CIT(A) CONFIRMING THE PENALTY IMPOSED BY THE ASSESSING OFFICER UNDER SECT ION 271(1)(C) AND DIRECT THE ASSESSING OFFICER TO CANCEL THE SAME. 22. NO CONTRARY OR HIGHER AUTHORITY HAS BEEN BROUGH T TO OUR NOTICE. THE LEGISLATURE IN ITS WISDOM HAS CHOSEN TO SEGREGATE T HE SEARCH AND REQUISITION PROCEEDINGS AND AT THE SAME TIME, PROVIDED FOR CERT AIN PROVISIONS WHICH APPLY EQUALLY TO BOTH SEARCH AND REQUISITION PROCEEDINGS AS SO PROVIDED IN SUB-SECTION (3) TO SECTION 132A WHERE IT IS STATED THAT THE PROVISI ONS OF SUB- SECTIONS (4A) TO (14) (BOTH INCLUSIVE) OF SECTION 132 SHALL, SO FAR AS MA Y BE, APPLY TO PROCEEDINGS UNDER SECTION 132A ALSO, AS IF SUCH BOOKS OF ACCOUNT, OTH ER DOCUMENTS OR ASSETS HAD BEEN SEIZED UNDER SECTION 132(1) BY THE REQUISITIONING O FFICER. HOWEVER, THE SAID DEEMING PROVISION CANNOT, HOWEVER, APPLY AND EXTEND TO ANOTHER DEEMING PROVISION CONTAINED IN EXPLANATION 5 TO SECTION 271(1)(C). IN ABSENCE OF ANY SPECIFIC MANDATE OF THE LEGISLATURE, THE SCOPE OF EXPLANATION 5 TO S ECTION 271(1)(C) CANNOT BE ENLARGED SO TO READ AND UNDERSTOOD THE SAME IN CONT EXT OF REQUISITION PROCEEDINGS U/S 132A WHERE IT IS SPECIFICALLY RESTRICTED IN RES PECT OF SEARCH INITIATED U/S 132 OF THE ACT. THEREFORE, FOLLOWING THE CONSISTENT VIEW TAKEN BY THE COORDINATE BENCHES ITA NO. 1252/JP/2019 SH. MOHAMED MOHTRAM FAROOQUI VS. ACIT, JHUNJHUNU 22 AND IN ABSENCE OF ANY CONTRARY AUTHORITY BROUGHT TO OUR NOTICE AND KEEPING IN VIEW THE STRICT CONSTRUCTION OF PENALTY PROVISIONS, THE MATTER RELATING TO LEVY OF PENALTY IN SITUATION OF REQUISITION OF ASSETS U/S 132A SHALL C ONTINUE TO BE GOVERNED BY THE MAIN PROVISIONS OF SECTION 271(1)(C) AND EXPLANATION 5 C ANNOT BE INVOKED IN SUCH CASES. 23. IN TERMS OF SECTION 271(1)(C), IT IS A SETTLED LEGAL PROPOSITION THAT THE CONCEALMENT OF PARTICULAR OF INCOME OR FURNISHING I NACCURATE PARTICULARS OF INCOME HAS TO BE SEEN WITH REFERENCE TO RETURN OF INCOME F ILED BY THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEAR AS ALSO REITERATED IN CASE OF CIT VS SAS PHARMACEUTICALS (SUPRA), SHREE SAI DEVELOPERS (SUPR A) AND RELIANCE PETROPRODUCTS (SUPRA). IN CASE OF SAS PHARMACEUTICALS, THE HONB LE HIGH COURT HAS HELD THAT THE CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE HAS TO BE IN THE INCOME TAX RETURN FILED BY IT. EVEN IF SOME DISCREPANCIES WERE FOUND DURING THE SURVEY RESULTIN G IN SURRENDER OF INCOME BY THE ASSESSEE, ONCE THE ASSESSEE HAS DECLARED THE SA ID INCOME IN THE RETURN OF INCOME FILED UNDER SECTION 139(1) OF THE ACT, THEN THE PENALTY CANNOT BE LEVIED ON THE SURMISES, CONJECTURES AND POSSIBILITIES THAT TH E ASSESSEE WOULD NOT HAVE DISCLOSED THE INCOME BUT FOR SURVEY. IN THE INSTANT CASE, THE ASSESSEE HAD FILED HIS ORIGINAL RETURN OF INCOME U/S 139(1) OF THE ACT FOR THE IMPUGNED ASSESSMENT YEAR 93-94 ON 26.04.93 DECLARING TOTAL INCOME OF RS 6,09 ,620/- INCLUDING CASH SEIZED OF RS 5,92,340/-/ AND THE SAID RETURN OF INCOME HAS BE EN ACCEPTED BY THE ASSESSING OFFICER. THE SEIZURE AND REQUISITION OF CASH U/S 13 2A MAY HAVE OCCASIONED THE FILING OF THE RETURN OF INCOME, HOWEVER, WHERE THE RETURN OF INCOME HAS BEEN FILED AT THE BEGINNING OF THE ASSESSMENT YEAR ITSELF WELL WITHIN TIME ALLOWED U/S 139(1) AND HAS BEEN ACCEPTED BY THE ASSESSING OFFICER AND THERE IS NO ADVERSE FINDINGS VIS--VIS CASH SEIZED AND OFFERED IN THE RETURN OF INCOME, FOLLOWING THE SETTLED LEGAL PROPOSITION AS LAID DOWN BY THE COURTS, THERE IS NO BASIS FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT AND THE SAME IS HEREBY DIR ECTED TO BE DELETED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 23 ORDER PRONOUNCED IN THE OPEN COURT ON 09/12/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 09/12/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. MOHAMED MOHTRAM FAROOQUI, JHUNJH UNU 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE, JHUNJHUNU 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1252/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR