Assistant Commissioner of Income-tax, V. M/s. Siddharth Infratech Pvt. Ltd., Jalgaon

ITA 1500/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9117 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 18-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Search and seizure
• Section: 143(3); 153A; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 150 0 /P U N/201 5 / ASSESSMENT YEAR : 20 11 - 12 THE ASST . COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1, NASHIK . / APPELLANT VS. M/S. SIDDHARTH INFRATECH PVT. LTD., SHOP NO.5, A WING, STADIUM COMPLEX, JILLAH PETH , JALGAON 425001 . / RESPONDENT PAN: AA NCS1550K / APPELLANT BY : SHRI AJAY MODI / RESPONDENT BY : SHRI NIKHIL PATHAK / DATE OF HEARING : 2 6 .0 7 . 2017 / DATE OF PRONOUNCEMENT: 31 . 0 7 .201 7 / ORDER PER SUSHMA CHOWLA, J M : TH E APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER OF CIT (A) - 1 2 , PUNE , DATED 25 .0 8 .201 5 RELATING TO ASSESSMENT YEAR 20 11 - 12 IN DELETING PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . ITA NO. 1500 /P U N/20 1 5 M/S. SIDDHARTH INFRATECH PVT. LTD. 2 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1 ) ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY U/S 271(1)(C) OF THE ACT OF RS.82,92,932/ - . 2) ON TH E FACTS & CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ONLY AFTER THE ISSUE OF NOTICE U/S 153A OF THE ACT AND NOT WITHIN THE TIME LIMITS PRESCRIBED U/S 139(1) OF THE ACT THEREBY DEEMED TO HAVE CONCEALED ITS INCOME. 3) ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ADMITTED TO HAVING REGULAR INCOME OF RS.2,49,65,546/ - INCLUDING CONCEALED INCOME OFFERED OF RS.50,00,000/ - WHICH THE ASSESSEE SHOULD HAVE VOLUNTARILY OFFERED FOR TAX WITHIN THE TIME LIMITS PRESCRIBED U/S 139(1) OF THE ACT WHICH THE ASSESSEE HAD FAILED TO DO SO. 3. THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST DELETION OF PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT AT RS.82,92,932/ - . 4. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION. SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT WAS CONDUCTED ON THE KOTECHA GROUP ON 09.08.2011, OF WHICH THE ASSESSEE WAS PART. DURING THE COURSE OF SEARCH, THE A SSESSEE OFFERED ADDITIONAL INCOME OF RS.50 LAKHS. NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED TO THE ASSESSEE ON 18.05.2012 DIRECTING THE ASSESSEE TO FILE THE RETURN OF INCOME WITHIN 45 DAYS OF THE RECEIPT OF NOTICE. IN REPLY, THE ASSESSEE FURNISHED THE RETURN OF INCOME ON 18.09.2012 DECLARING TOTAL INCOME OF RS.2,99,65,546/ - . THE ADDITIONAL INCOME OFFERED AT RS.50 LAKHS WAS OFFERED TO TAX IN ADDITION TO REGULAR INCOME OF RS.2,49,65,546/ - . THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 153A OF THE ACT AT ASSESSED INCOME OF RS.2,99,65,546/ - . THE ASSESSING OFFICER ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT ON REGULAR INCOME SHOWN AT RS.2,49,65,546/ - AND PENALTY PROCEEDINGS UNDER SECTION 271AAA OF THE ACT ON ADDITIONAL INCOME OF RS.50 LAKHS. WHILE COMPLETING ASSESSMENT, THE ASSESSING OFFICER NOTED THAT THE RETURN OF INCOME FILED BY THE ASSESSEE WAS THE ITA NO. 1500 /P U N/20 1 5 M/S. SIDDHARTH INFRATECH PVT. LTD. 3 FIRST RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION AND IN RESPONSE TO NOTICE ISSUED UNDER SE CTION 153A OF THE ACT. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE WAS DEEMED TO HAVE CONCEALED ITS INCOME TO THE TUNE OF RS.2.49 CRORES, FOR WHICH PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WERE INITIATED. THE ASSESSING OFFICER T HEREAFTER, LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON THE CONCEALED REGULAR INCOME OF RS.2.49 CRORES AT RS.82,92,932/ - . 5. THE CIT(A) OBSERVED THAT SOLE REASON FOR INITIATING PENALTY WAS NON - FILING OF RETURN WITHIN TIME LIMIT PRESCRIBED UNDER SE CTION 139(1) OF THE ACT. THE CIT(A) FURTHER NOTED THAT THE ASSESSING OFFICER HAD TREATED THE FINANCIAL YEAR 2010 - 11 AS SPECIFIED PREVIOUS YEAR AS DEFINED UNDER SECTION 271AAA OF THE ACT AND HAD INITIATED PENALTY IN RESPECT OF ADDITIONAL INCOME OF RS.50 LA KHS WHICH WAS DISCLOSED BY THE ASSESSEE DURING THE COURSE OF SEARCH PROCEEDINGS. HOWEVER, THE ASSESSING OFFICER DID NOT CONSIDER IT AS SPECIFIED PREVIOUS YEAR WHILE APPLYING EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. THE CIT(A) HELD THAT THE APPROAC H OF ASSESSING OFFICER WAS NOT IN CONFORMITY WITH THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT READ WITH EXPLANATION 5A AND SECTION 271AAA OF THE ACT. HE FURTHER POINTED OUT THAT IN ALL SUCH CASES, WHERE SEARCH TOOK PLACE AFTER 01.06.2007 AND ANY UNDISC LOSED INCOME WAS FOUND AS A RESULT OF SEARCH, PENALTY WAS LEVIABLE UNDER EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT OR UNDER SECTION 271AAA OF THE ACT DEPENDING ON THE FINANCIAL YEAR INVOLVED. THE CIT(A) VIDE PARA 2.5.3 HELD THAT FOR SEARCHES CONDUCTE D BETWEEN 01.06.2007 TO 01.07.2012, IT WAS CLEAR THAT IF ANY UNDISCLOSED INCOME WAS FOUND DURING THE COURSE OF SEARCH, THEN THE PROVISIONS OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT WOULD APPLY FOR THE FINANCIAL YEARS, WHICH HAD ENDED BEFORE THE DAT E OF SEARCH AND DUE DATE OF FILING THE RETURN OF INCOME HAD EXPIRED AND NO RETURN OF ITA NO. 1500 /P U N/20 1 5 M/S. SIDDHARTH INFRATECH PVT. LTD. 4 INCOME HAD BEEN FILED A ND ALSO, IN CASE WHERE THE RETURN OF INCOME HAD BEEN FILED, INCOME HAS NOT BEEN DECLARED IN THE SAID RETURN FILED PRIOR TO SEARCH. HE FURTHER OBSER VED THAT ON THE OTHER HAND, PROVISIONS OF SECTION 271AAA OF THE ACT WOULD APPLY IN RESPECT OF UNDISCLOSED INCOME FOUND DURING THE COURSE OF SEARCH RELATED TO SPECIFIED PREVIOUS YEAR , T HE SPECIFIED PREVIOUS YEAR WHICH EITHER THE FINANCIAL YEAR WHICH HAD END ED , BUT DUE DATE FOR FILING THE RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT HAD NOT EXPIRED OR THE FINANCIAL YEAR IN WHICH SEARCH TOOK PLACE. IN VIEW OF SPECIFIC PROVISIONS OF SECTION 271AAA(3) OF THE ACT, THE CIT(A) HELD THAT NO PENALTY UNDER SECTIO N 271(1)(C) OF THE ACT SHALL BE IMPOSED IN RESPECT OF UNDISCLOSED INCOME OF SPECIFIED PREVIOUS YEAR. THE CIT(A) FURTHER HELD THAT IN THE INSTANT CASE THE DUE DATE FOR FILING THE RETURN OF INCOME WAS TO EXPIRE ON 30.09.2011 AND SEARCH HAD TAKEN PLACE ON 09 .08.2011, THEREFORE, FINANCIAL YEAR 2010 - 11 BECOMES THE SPECIFIED FINANCIAL YEAR. HENCE, PENALTY HAD TO BE LEVIED UNDER SECTION 271AAA OF THE ACT ONLY IN CASE UNDISCLOSED INCOME WAS FOUND AS A RESULT OF SEARCH. PENALTY UNDER EXPLANATION 5A TO SECTION 271 (1)(C) OF THE ACT WOULD NOT BE LEVIABLE AS THE YEAR IS SPECIFIED FINANCIAL YEAR, IN VIEW OF PROVISIONS OF SECTION 271AAA(3) OF THE ACT. THE CIT(A) ALSO ACCEPTED THE ALTERNATE PLEA OF THE ASSESSEE THAT WITHOUT PREJUDICE TO THE APPLICABILITY OF EXPLANATION 5A OF SECTION 271(1)(C) OF THE ACT, SINCE THE INCOME OF RS.2.49 CRORES WAS DETERMINED ON THE BASIS OF BOOKS OF ACCOUNT REGULARLY MAINTAINED BY THE ASSESSEE, SINCE UNAUDITED FINANCIAL STATEMENTS WERE FOUND DURING THE COURSE OF SEARCH, SUCH INCOME COULD NOT BE TERMED AS UNDISCLOSED INCOME IN TERMS OF SECTION 271AAA OF THE ACT. FURTHER, THE ASSESSING OFFICER HAD ACCEPTED THE BOOK RESULTS AND HAD NOT BROUGHT ON RECORD ANYTHING TO SUGGEST THAT THE ASSESSEE HAD CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCU RATE PARTICULARS OF INCOME AND HENCE, NO MERIT IN ITA NO. 1500 /P U N/20 1 5 M/S. SIDDHARTH INFRATECH PVT. LTD. 5 LEVY OF PENALTY SINCE THE INGREDIENTS OF SECTION 271(1)(C) OF THE ACT EXPLANATION 5A WERE NOT FULFILLED. 6. THE REVENUE IS IN APPEAL AGAINST THE ORDER OF CIT(A). THE GRIEVANCE OF THE REVENUE IS THAT T HE CIT(A) HAS FAILED TO APPRECIATE THAT THE ASSESSEE HAD FILED THE RETURN OF INCOME ONLY AFTER THE ISSUE OF NOTICE UNDER SECTION 153A OF THE ACT AND NOT WITHIN TIME LIMITS PRESCRIBED UNDER SECTION 139(1) OF THE ACT AND HENCE, WAS DEEMED TO HAVE CONCEALED I TS INCOME. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE AFTER TAKING US THROUGH THE FACTUAL ASPECTS POINTED OUT THAT EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT IS ATTRACTED. HE FAIRLY ADMITTED THAT DUE DATE FOR FILING THE RETURN OF INCO ME UNDER SECTION 139(1) OF THE ACT HAD NOT EXPIRED WHICH WAS DUE ON 30.09.2011. HOWEVER, THE ASSESSEE FILED THE RETURN OF INCOME ON 18.09.2012 WHICH WAS FILED UNDER SECTION 139(4) OF THE ACT. 8. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POIN TED OUT THAT THE INCOME OF RS.2.49 CRORES WAS ACCOUNTED FOR IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND NO PART OF THIS WAS OFFERED AS ADDITIONAL INCOME DURING THE COURSE OF SEARCH. HE FURTHER STATED THAT THE TDS WAS DEDUCTED AND ADVANCE TAX WAS PAID ON T HE SAID AMOUNT BEFORE THE DATE OF SEARCH. HE FURTHER POINTED OUT THAT DURING THE COURSE OF SEARCH ONLY ADDITIONAL INCOME OF RS.50 LAKHS WAS OFFERED TO TAX. HE FURTHER EXPLAINED THAT SINCE THE DUE DATE FOR FILING THE RETURN OF INCOME HAD NOT EXPIRED AND S INCE SEARCH PROCEEDINGS HAD TAKEN PLACE AGAINST THE ASSESSEE, ONLY WAY TO OFFER THE INCOME BY THE ASSESSEE WAS IN RESPONSE TO NOTICE ISSUED UNDER SECTION 153A OF THE ACT AND THE PROVISIONS OF SECTION 139(1) AND 139(4) OF THE ACT WERE NOT AVAILABLE TO THE A SSESSEE. HE ITA NO. 1500 /P U N/20 1 5 M/S. SIDDHARTH INFRATECH PVT. LTD. 6 REFERS TO THE PROVISIONS OF SECTION 271AAA OF THE ACT, WHEREIN IT HAS BEEN PROVIDED THAT PENALTY CAN BE LEVIED IN RESPECT OF UNDISCLOSED INCOME OF SPECIFIED PREVIOUS YEAR. FURTHER, THE SAID TERM IS DEFINED IN EXPLANATION UNDER SECTION 271AAA( 4) OF THE ACT. HE ALSO POINTED OUT THAT PROVISIONS OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT ARE NOT ATTRACTED IN THE PRESENT SET OF FACTS. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. IN THE FACTS OF THE INSTANT CASE BEFORE US , THE ASSESSEE WAS CARRYING ON THE BUSINESS OF CIVIL CONSTRUCTION AND SEARCH UPON THE ASSESSEE AND ITS GROUP CONCERNS WAS CARRIED OUT UNDER SECTION 132 OF THE ACT ON 09.08.2011. DURING THE COURSE OF SEARCH, THE ASSESSEE OFFERED ADDITIONAL UNDISCLOSED INCO ME OF RS.50 LAKHS TO TAX. THE DUE DATE FOR FURNISHING THE RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT EXPIRES ON 30.09.2011 AND THE DUE DATE FOR FURNISHING THE RETURN OF INCOME UNDER SECTION 139(4) OF THE ACT EXPIRES ON 30.09.2012. THE ASSESSING OFF ICER ISSUED NOTICE UNDER SECTION 153A OF THE ACT IN MAY, 2012 AND ASKED THE ASSESSEE TO FURNISH THE RETURN OF INCOME. IN RESPONSE THERETO, THE ASSESSEE CLAIMS TO HAVE FURNISHED THE RETURN OF INCOME ON 18.09.2012 ; THE COMPUTATION OF INCOME IS PLACED AT PAG ES 3 AND 4 OF THE PAPER BOOK. THE PERUSAL OF SAID COMPUTATION OF INCOME REFLECTS THAT THE ASSESSEE HAD DECLARED INCOME FROM BUSINESS AS PER PROFIT AND LOSS ACCOUNT AT RS.2.49 CRORES AND HAD ADDED UNDISCLOSED INCOME AS OTHER BUSINESS INCOME AT RS.50 LAKHS. THE GROSS TOTAL INCOME DECLARED BY THE ASSESSEE WAS RS.2.99 CRORES ON WHICH THE TAX WORKED OUT AT RS.89,89,665/ - AND AT RS.99,53,807/ - AFTER SURCHARGE AND EC. AGAINST THE SAID TAX PAYABLE, TAX WAS DEDUCTED AT SOURCE AT RS.1,08,91,145/ - AND THE ASSESSEE HAD PAID ADVANCE TAX OF RS.4,50,000/ - ON 15.09.2010 AND RS.50,000/ - ON 15.03.2011. THE ASSESSEE THUS, HAD DECLARED REGULAR INCOME ITA NO. 1500 /P U N/20 1 5 M/S. SIDDHARTH INFRATECH PVT. LTD. 7 OF RS.2.49 CRORES WHICH THE ASSESSEE CLAIMS WAS AS PER ITS BOOKS OF ACCOUNT. THE ADDITIONAL INCOME OFFERED DURING THE COURSE OF SEARCH WAS ALSO INCLUDED AS OTHER BUSINESS INCOME AND THE ASSESSEE FURNISHED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.2.99 CRORES. THERE IS NO DISPUTE ABOUT THE QUANTUM OF INCOME OFFERED BY THE ASSESSEE. THE SAID INCOME AS SUCH WAS ASSESSED BY THE ASSESSING OFFICER. HOWEVER, SINCE THE ASSESSEE HAD FILED THE RETURN OF INCOME PURSUANT TO SEARCH UNDER SECTION 132 OF THE ACT, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE SAID INCOME WAS DETERMINED CONSEQUENT TO SEARCH AND HENCE, WAS UNDISCLOSED INCOME. 10. WITH REGARD TO ADDITIONAL INCOME OF RS.50 LAKHS, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS UNDER SECTION 271AAA OF THE ACT WHICH IS NOT THE POINT OF DISPUTE BEFORE US. THE ASSESSING OFFICER ALSO INITIATED THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT EXPLANATION 5A IN RESPECT OF REGULAR INCOME OFFERED BY THE ASSESSEE AT RS.2.49 CRORES. THE CASE OF REVENUE WAS THAT THE SAID INCOME WAS OFFERED TO TAX AFTER SEARCH PROCEEDINGS AND CONSEQUENTLY WAS UNEARTHED BECAUSE OF SEARCH PROCEEDINGS. THE CASE OF ASSESSEE ON THE OTHER HAND, IS THAT INCOME OF RS.2.49 CRORES IS DULY REFLECTED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND IS THE INCOME FOR INSTANT ASSESSMENT YEAR. SINCE SEARCH UNDER SECTION 132 OF THE ACT WAS CONDUCTED AT THE PREMISES OF ASSESSEE ON 09.08.2011 AND WHERE THE DUE DATE FOR FILING THE RETURN OF INCOME FOR INSTANT ASSESSMENT YEAR WAS 30.09.2011 , THE ASSESSEE HAD NOT FURNISHED ANY RETURN OF INCOME. HOWEVER, IT HAD PAID THE TAXES ON THE SAID INCOME BY WAY OF T DS AND ADVANCE TAX. THE FIRST ASPECT TO BE SEEN IS WHETHER THE SAID INCOME WAS UNEARTHED PURSUANT TO SEARCH ACTION. WE FIND NO MERIT IN THE STAND OF ASSESSING OFFICER IN THIS REGARD. THE INCOME DECLARED BY THE ASSESSEE AT RS.2.49 CRORES WAS THE INCOME AR ISING TO THE ASSESSEE AS PER ITA NO. 1500 /P U N/20 1 5 M/S. SIDDHARTH INFRATECH PVT. LTD. 8 ITS REGULAR BOOKS OF ACCOUNT MAINTAINED. THE ASSESSEE WAS AWARE OF THE QUANTUM OF INCOME IN ITS HANDS AND HAD ACCORDINGLY, PAID THE TAXES BY WAY OF TDS AND ADVANCE TAX. IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCE S, WE FIND NO MERIT IN THE STAND OF ASSESSING OFFICER THAT THE SAID REGULAR INCOME WAS UNEARTHED CONSEQUENT TO SEARCH OPERATION ON THE PREMISES OF ASSESSEE. 11. NOW, COMING TO THE MERITS OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, WHEREIN THE A SSESSING OFFICER HAS TAKEN THE SHELTER OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT READS AS UNDER: - EXPLANATION 5A. WHERE, IN THE COURSE OF A SEARCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DA Y OF JUNE, 2007, THE ASSESSEE IS FOUND TO BE THE OWNER OF (I) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSETS) AND THE ASSESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UT ILISING (WHOLLY OR IN PART) HIS INCOME FOR ANY PREVIOUS YEAR; OR (II) ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS REPRES ENTS HIS INCOME (WHOLLY OR IN PART) FOR ANY PREVIOUS YEAR, WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND, (A) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN; OR (B) THE DUE DATE FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN, THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL, 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 FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 12. THE PERUSAL OF ABOVE SAID EXPLANATI ON 5A REFLECTS THAT THESE PROVISIONS ARE APPLICABLE IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OF THE ACT ON OR ITA NO. 1500 /P U N/20 1 5 M/S. SIDDHARTH INFRATECH PVT. LTD. 9 AFTER THE FIRST DAY OF JUNE, 2007 AND WHERE, AS PER CLAUSE (II) THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENT S OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS REPRESENTS HIS INCOME , WHOLLY OR IN PART , FOR ANY PREVIOUS YEAR , WHICH HAD ENDED BEFORE THE DATE OF SEARCH AND TWO CONDITIONS THEREAFTER ARE PROVIDED I.E. (A) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN; OR (B) THE DUE DATE FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS Y EAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN , THEN, NOTWITHSTANDING THAT THE ASSESSEE HAS DECLARED SUCH INCOME IN THE RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME AND SHALL BE LIABLE FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. READING THE SAID EXPLANATION I.E. THE RELEVANT PART WHICH MAY BE ATTRACTED IN THE CASE OF ASSESSEE, SINCE THE ASSESSEE WA S NOT FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING AND HENCE, CLAUSE (I) TO EXPLANATION 5A IS NOT ATTRACTED. CLAUSE (II) RELATES TO INCOME BASED ON ANY ENTRY IN BOOKS OF ACCOUNT OR DOCUMENTS FOUND DURING THE CO URSE OF SEARCH AND WHERE THE ASSESSEE CLAIMS THAT IT REPRESENTS HIS INCOME, THEN IT RELATES TO A PREVIOUS YEAR WHICH IS ENDED BEFORE THE DATE OF SEARCH AND FURTHER CONDITIONS ARE LAID DOWN I.E. A CASE WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS B EEN FILED , WHICH IS NOT RELEVANT TO DECIDE THE PRESENT ISSUE AND THE SECOND CONDITION IS WHERE THE DUE DATE FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME. ITA NO. 1500 /P U N/20 1 5 M/S. SIDDHARTH INFRATECH PVT. LTD. 10 13. IN THE FACTS OF THE PRE SENT CASE, BOTH THE CONDITIONS I.E. CLAUSE (A) AND (B) IN EXPLANATION 5A UNDER SECTION 271(1)(C) OF THE ACT ARE NOT ATTRACTED. CLAUSE (A) IS NOT ATTRACTED SINCE THE ASSESSEE HAD NOT FURNISHED ANY RETURN OF INCOME BEFORE THE DATE OF SEARCH. IN RESPECT OF CLAUSE (B) , CONDITION IS THAT THE DUE DATE FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR SHOULD HAVE EXPIRED AND THE ASSESSEE HAD NOT FILED THE RETURN. HOWEVER, IN THE FACTS OF THE PRESENT CASE, SEARCH TOOK PLACE ON 09.08.2011 AND THE DUE DATE FO R FILING THE RETURN OF INCOME UNDER SECTION 139 (1) OF THE ACT FOR THE INSTANT ASSESSMENT YEAR WAS BEING 30.09.2011, COULD NOT BE SAID TO HAVE EXPIRED ON THE DATE OF SEARCH. CONSEQUENTLY, SECOND PART OF CLAUSE (B) THAT THE ASSESSEE HAS NOT FILED RETURN WOU LD NOT BE ATTRACTED AS THE DUE DATE FOR FILING THE RETURN OF INCOME HAD NOT EXPIRED. THE REQUIREMENT OF SECTION 139(1) OF THE ACT VIS - - VIS DUE DATE FOR FILING THE RETURN OF INCOME FELL AFTER THE DATE OF SEARCH I.E. ON 30.09.2011 AND CONSEQUENTLY, THE PRO VISIONS OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT ARE NOT ATTRACTED IN THE CASE. THE ASSESSEE HAD NOT FURNISHED THE RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT BUT IN RESPONSE TO SECTION 153A OF THE ACT. AFTER SEARCH PROCEEDINGS HAVE BEEN CO NDUCTED ON ANY PERSON, THEN HE IS DUTY BOUND TO FILE RETURN OF INCOME UNDER SECTION 153A OF THE ACT AND NO T UNDER SECTION 139(1) OR 139(4) OF THE ACT. 14. ANOTHER ASPECT TO BE KEPT IN MIND IS THAT THE ASSESSEE HAD DECLARED REGULAR INCOME OF RS.2.49 CRORES IN THE SAID RETURN OF INCOME WHICH WAS BACKED BY ENTRIES IN THE BOOKS OF ACCOUNT, AGAINST WHICH THE ASSESSEE HAD PAID DUE TAXES AND HENCE, IT COULD NOT BE SAID THAT THE SAID INCOME WAS UNDISCLOSED INCOME OF ASSESSEE. THE ASSESSEE HAD MADE THE DECLARATION OF UNDISCLOSED INCOME OF RS.50 LAKHS WHICH WAS DULY OFFERED TO TAX IN THE RETURN OF INCOME, AGAINST WHICH THE ASSESSING OFFICER HAS INDEPENDENTLY INITIATED PENALTY ITA NO. 1500 /P U N/20 1 5 M/S. SIDDHARTH INFRATECH PVT. LTD. 11 PROCEEDINGS UNDER SECTION 271AAA OF THE ACT . ACCORDINGLY, WE UPHOLD THE ORDER OF CIT(A) IN DELETING THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT - EXPLANATION 5A ON THE REGULAR INCOME OFFERED TO TAX AT RS.2.49 CRORES. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS, DISMISSED. 1 5 . IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED . ORDER PRONOUNCED ON THIS 31 ST DAY OF JU LY , 201 7 . SD/ - SD/ - (ANIL CHATURVEDI ) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 31 ST JU LY , 201 7 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPEL LANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 1 2 , PUNE ; 4. / THE PR. CIT , CENTRAL, NAGPUR ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE