Mahesh Alamchandani, L.R. of Late Shri Ashanand Alamchandani, Godhra V. The Asstt. Commissioner of Income Tax, Central Circle-1, Baroda

ITA 159/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3076 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 19-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Income from undisclosed sources; Question of law; Difference of opinion; Revised return
• Section: 271(1)(c); 153A; 139

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.AS. NOS. 159 TO 163/AHD/2017 ( ASSESSMENT YEARS : 2010-11, 2011-12, 2009-10 TO 201 1-12) MAHESH ALAMCHANDANI L.R. OF LATE SHRI ASHANAND ALAMCHANDANI HIRDAYA SOCIETY, B/H. AMBICA CINEMA, OPP. BUS STAND, GODHRA - 389001 / VS. ASST. CIT CENTRAL CIRCLE-1, BARODA ./ ./ PAN/GIR NO. : ABWPA1990L ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SMT. URVASHI SODHAN, ADVOCATE / RESPONDENT BY : SHRI LALIT P. JAIN, SR.D.R. DATE OF HEARING 18/02/2019 !'# / DATE OF PRONOUNCEMENT 28/02/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEALS AT THE INSTANCE OF ASSESSEE A RISE FROM THE RESPECTIVE ORDERS OF THE CIT(A) AGAINST RESPECTIVE PENALTY ORDERS FOR DIFFERENT ASSESSMENT YEARS AS TABULATED BELOW: ITA NOS. 159 TO 163/AHD/17 [ MAHESH ALAMCHANDANI VS. ACIT] - 2 ITA NOS. NAME OF ASSESSEE AY CIT(A)S ORDER DATED AOS PENALTY ORDER DATED AOS ORDER UNDER SECTION 159/AHD/17 MAHESH ALAMCHANDANI 2010-11 16.11.2016 25.08.2015 271(1)(C) OF THE INCOME TAX ACT, 1961 160/AHD/15 -DO- 2011-12 -DO- -DO- -DO- 161/AHD/15 -DO- 2009-10 -DO- -DO- -DO- 162/AHD/15 -DO- 2010-11 -DO- -DO- -DO- 163/AHD/15 -DO- 2011-12 -DO- -DO- -DO- 2. THE CAPTIONED BUNCH OF APPEALS INVOLVES IDENTICA L ISSUE ON SIMILAR FACTS. ACCORDINGLY, ALL THE MATTERS HAVE B EEN HEARD TOGETHER AND A CONSOLIDATED ORDER BEING PASSED HEREUNDER. 3. FOR THE SAKE OF CONVENIENCE, WE SHALL FIRST TAKE UP ITA NO. 159/AHD/2017 CONCERNING AY 2010-11 TO APPRECIATE TH E FACTS IN PERSPECTIVE, ISSUES INVOLVED AND DECISION THEREON. ITA NO. 159/AHD/2017 AY 2010-11 4. BRIEFLY STATED, THE ASSESSEE FILED RETURN OF INC OME ORIGINALLY UNDER S.139(1) OF THE ACT AT RS.2,31,560/-. THEREAF TER, A SEARCH WAS CONDUCTED UNDER S.132 OF THE ACT IN THE CASE OF DHA NJIMAMA GROUP OF CASES ON 03.07.2012 WHICH INCLUDED THE ASSESSEE AS WELL. CONSEQUENT TO THE SEARCH ACTION, INCRIMINATING MATERIALS WERE FOUND AND A STATEMENT WAS RECORDED UNDER S.132(4) OF THE ACT WH EREIN THE ASSESSEE ADMITTED CERTAIN ADDITIONAL INCOME BASED ON DOCUMEN TS FOUND DURING THE COURSE OF SEARCH. A PROCEEDING UNDER S.153A WA S INITIATED AS A CONSEQUENCE. THE ASSESSEE FILED RETURN OF INCOME UNDER S.153A OF THE ACT AT RS.10,10,310/- IN COMPLIANCE OF THE NOTI CE AND INCORPORATED DISCLOSURE OF RS.7,78,750/- IN THE RETURN OF INCOME FILED IN RESPONSE TO SUCH NOTICE UNDER S.153A OF THE ACT. THE ASSESSMEN T WAS COMPLETED ITA NOS. 159 TO 163/AHD/17 [ MAHESH ALAMCHANDANI VS. ACIT] - 3 UNDER S.153A OF THE ACT AND THE INCOME DECLARED IN THE SAID RETURN WAS ASSESSED AS SUCH. THE AO HOWEVER, IMPOSED PENA LTY OF RS.2,18,740/- (100% OF THE TAX SOUGHT TO BE EVADED) ON THE ADDITIONAL INCOME OF RS.7,78,750/- DECLARED IN PURSUANCE OF TH E SEARCH BY INVOKING PROVISIONS OF SECTION 271(1)(C) OF THE ACT R.W. EXPLANATION 5A THERETO. 5. AGGRIEVED BY THE LEVY OF PENALTY UNDER S. 271(1) (C) OF THE ACT BY THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). 6. THE CIT(A) HOWEVER SUSTAINED THE ACTION OF THE A O TOWARDS IMPOSITION OF PENALTY. 7. FURTHER AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL. 8. IN THE COURSE OF HEARING, THE LEARNED AR FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT IN ALL THE CAPTIONED APPEALS, THE PENALTY HAS BEEN IMPOSED ONLY ON ACCOUNT OF DIFFERENCE BETWEEN THE I NCOME DECLARED IN THE RETURN ORIGINALLY FILED PRIOR TO SEARCH QUA THE RETURN FILED SUBSEQUENTLY IN COMPLIANCE OF NOTICE UNDER S.153A O F THE ACT IN PURSUANCE OF SEARCH ACTION. THE AO HAS ACCEPTED THE RETURN OF INCOME FILED UNDER S.153A OF THE ACT WITHOUT ANY ADDITIONS OR VARIATIONS AND THEREFORE, IN THE ABSENCE OF ANY ADDITION/DISALLOWA NCE TO THE INCOME RETURNED UNDER S.153A OF THE ACT, NO PENALTY UNDER S. 271(1)(C) OF THE ACT IS EXIGIBLE IN THE ABSENCE OF ANY CONCEALMENT Q UA THE RETURN OF INCOME FILED UNDER S.153A OF THE ACT. THE LEARNED AR QUIPPED THAT ONCE THE RETURN HAS BEEN FILED UNDER S.153A OF THE ACT, THE EARLIER RETURN FILED UNDER S.139 OF THE ACT BECOMES NON EST AND STAND REPLACED BY THE SUBSEQUENT RETURN FILED PURSUANT TO A STATUT ORY NOTICE IN THIS REGARD. THE LEARNED AR THUS SUBMITTED THAT THE APP LICABILITY OF ITA NOS. 159 TO 163/AHD/17 [ MAHESH ALAMCHANDANI VS. ACIT] - 4 SECTION 271(1)(C) OF THE ACT IS REQUIRED TO BE SEEN ONLY WITH REFERENCE TO THE SUBSEQUENT RETURN. THE LEARNED AR REASONED THAT IN THE ABSENCE OF ANY UPWARD ADJUSTMENT TO THE RETURN OF INCOME FI LED IN THE SUBSEQUENT RETURN, THE PROVISIONS OF SECTION 271(1) (C) OF THE ACT IS A COMPLETE NON-STARTER. THUS, DISCLOSURE MADE UNDER S.132(4) OF THE ACT IN THE SEARCH PROCEEDINGS HAS NO EFFECT FOR THE PUR POSES OF PENALTY ONCE INCORPORATED IN THE SUBSEQUENT RETURN FILED UN DER S.153A OF THE ACT. IN THIS CONTEXT, THE LEARNED AR REFERRED TO T HE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KI RIT DAHYABHAI PATEL (2017) 80 TAXMANN.COM 162 (GUJ) TO CANVASS THE PROP OSITION THAT INCOME RETURNED IN RESPONSE TO NOTICE UNDER S.153A OF THE ACT IS REQUIRED TO BE CONSIDERED FOR THE PURPOSES OF IMPOS ITION OF PENALTY UNDER S. 271(1)(C) OF THE ACT AND PENALTY CAN BE PO SSIBLY LEVIED ONLY ON THE INCOME ASSESSED OVER AND ABOVE THE INCOME RE TURNED UNDER S.153A OF THE ACT, IF ANY. THE LEARNED AR FOR THE A SSESSEE ACCORDINGLY EMPHASIZED THAT IMPOSITION OF PENALTY UNDER S. 271( 1)(C) OF THE ACT TOWARDS ADDITIONAL INCOME OFFERED IN THE RETURN FIL ED UNDER S.153A OF THE ACT IS NOT SUSTAINABLE IN LAW. THE LEARNED AR ALSO RELIED UPON THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF DR . NAMAN A. SHASTRI VS. ACIT & ORS. IT(SS)A NO. 561/AHD/2011 ORDER DATE D 29.09.2015; SHREE RAM CORPORATION VS. DCIT ITA NO. 726/AHD/2015 ORDER DATED 09.06.2015 AND ARVINDBHAI V. BHANUSALI VS. ACIT IT( SS)A NO. 271/AHD/2013 & ORS. ORDER DATED 06.04.2017 TO CONTE ND THAT REVENUE IS NOT ENTITLED TO IMPOSE PENALTY ON INCOME DECLARE D BY THE ASSESSEE HIMSELF UNDER S.153A OF THE ACT. IT WAS THUS SUBMI TTED THAT THE ORDER OF THE CIT(A) SUSTAINING THE PENALTY UNDER S. 271(1 )(C) OF THE ACT ON UNACCOUNTED INCOME SUO MOTO INCLUDED IN THE RETURN FILED UNDER S.153A OF THE ACT IS NOT JUSTIFIED. 9. THE LEARNED DR FOR THE REVENUE, ON THE OTHER HAN D, RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIES AND ALSO RELI ED UPON THE DECISION ITA NOS. 159 TO 163/AHD/17 [ MAHESH ALAMCHANDANI VS. ACIT] - 5 OF THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE O F CIT VS. PRASANNA DUGAR 371 ITR 19 (CAL) IN JUSTIFICATION OF THE ACTI ON OF THE REVENUE. THE LEARNED DR FURTHER SUBMITTED THAT SLP AGAINST T HE AFORESAID JUDGMENT OF THE CALCUTTA HIGH COURT ALSO STANDS DIS MISSED BY THE HONBLE SUPREME COURT AS REPORTED IN 373 ITR 681 (S C). 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. IN TERMS OF THE PLEA RAISED, THE CENTRAL QUESTION THAT EMERGES FOR DETERMINATION IS WHETHER PENALTY UNDER S. 271(1)(C) OF THE ACT CAN B E IMPOSED ON ADDITIONAL INCOME DECLARED IN THE RETURN FILED BY T HE ASSESSEE UNDER S.153A OF THE ACT VIS--VIS THE INCOME DECLARED IN THE RETURN FILED UNDER S.139(1) OF THE ACT? THE IDENTICAL ISSUE HAS BEEN SQUARELY CONSIDERED BY THE CO-ORDINATE BENCH IN THE CASE OF SAME COMBINATION IN VIJAY K. SHAH VS. ITO IN IT(SS)A NOS.54 TO 57/AH D/2014 FOR AYS 2003-04 TO 2006-07, ORDER DATED 13/04/2017 AS POINT ED OUT IN THE COURSE OF HEARING. IT WILL BE APT TO REPRODUCE TH E RELEVANT PARA DEALING WITH CONTENTIONS RAISED ON BEHALF OF THE AS SESSEE: 9. NOTWITHSTANDING THAT THE ISSUE IS AFFIRMED IN FAVOUR OF THE ASSESSEE IN THE GIVEN FACTS OF THE CASE, WE ARE EQUALLY INCLINED TO DWELL UPON THE CARDINAL PLEA RAISED ON BEHALF OF THE ASSESSEE FOR THE PROPOSITIO N THAT AS SOON AS RETURN IS FILED UNDER S.153A, THE IMPOSITION OF PENALTY OR OTHERWIS E HAS TO BE SEEN ONLY WITH REFERENCE TO THE RETURN FILED UNDER S.153A AND RETU RN FILED EARLIER UNDER S.139 PRIOR TO SEARCH SHOWING LESSER QUANTUM OF INCOME FADES IN TO INSIGNIFICANCE IN ALL CIRCUMSTANCES. FOR THIS PROPOSITION, THE DECISION O F THE HONBLE GUJARAT HIGH COURT IN KIRIT DAHYABHAI PATEL VS. ACIT (2015) 280 CTR 216 (GUJ.) WAS HEAVILY RELIED UPON IN THE COURSE OF HEARING. IN ESSENCE T HUS, IT IS THE CASE OF THE ASSESSEE THAT INCOME DISCOVERED AS A RESULT OF SEARCH AND IN CLUDED IN THE RETURN FILED UNDER S.153A IN POST SEARCH PROCEEDINGS ARE NOT SUSCEPTIB LE TO PENALTY UNDER S.271(1)(C) OF THE ACT AT ALL NOTWITHSTANDING EXPLANATION-5 SUB SISTING IN STATUTE AT THE RELEVANT TIME. 9.1. WE STRAIGHT AWAY RECKON THAT SUCH SWEEPING PROPOSITION DOES NOT FIND ANY SEMBLANCE OF ACCEPTABILITY. AS NOTED EARLIER, EXP LANATION-5 TO SECTION 271(1)(C) SPECIFICALLY ADDRESSES THE AFORESAID SITUATION WHER E IT IS SPECIFICALLY PROVIDED THAT NOTWITHSTANDING THE FACT THAT UNDISCLOSED INCOME FO UND AS A RESULT OF SEARCH WAS DECLARED IN THE RETURN OF INCOME FURNISHED AFTER TH E DATE OF SEARCH, THE ASSESSEE SHALL BE DEEMED TO FALL WITHIN THE SWEEP OF SECTION 271(1)(C) UNLESS THE ASSESSEE IS COVERED BY EXIT ROUTE PROVIDED IN THE EXPLANATIO N-5 ITSELF. THUS, THE AFORESAID ITA NOS. 159 TO 163/AHD/17 [ MAHESH ALAMCHANDANI VS. ACIT] - 6 PROPOSITION CANVASSED BY THE ASSESSEE THAT ONCE THE RETURN IS FILED BY THE ASSESSEE AFTER THE SEARCH IN RESPONSE TO NOTICE ISSUED UNDER S.153A INCLUDING UNDISCLOSED INCOME DISCOVERED IN THE COURSE OF SEARCH, THE ASSE SSEE GETS INDEFEASIBLE RIGHT TO SHUN AWAY PENALTY PROCEEDINGS ON SUCH UNDISCLOSED I NCOME IS SQUARELY AT LOGGERHEADS WITH DEEMING FICTION CREATED UNDER EXPL ANATION-5 FOR THIS PURPOSE. NEEDLESS TO SAY, THIS GENERIC PROPOSITION TOWARDS N ON-APPLICABILITY OF PENALTY ON UNDISCLOSED INCOME, IF SEEN IN AFFIRMATIVE, WILL RE NDER THE LEGISLATIVE FIAT UNDER EXPLANATION-5 RELATABLE TO SEARCH CASES AS OTIOSE A ND INFRUCTUOUS. AS CAN BE SEEN, THE BENEFIT OF IMMUNITY PROVIDED UNDER EXPLANATION- 5 IS WELL DEFINED AND STRUCTURED. AS PROVIDED, IT IS AVAILABLE ONLY IN R ESPECT OF SUCH YEAR WHERE THE DUE DATE OF FILING OF THE RETURN HAS NOT EXPIRED BEFORE THE DATE OF SEARCH SUBJECT TO FULFILLMENT OF CONDITIONS AS CONTEMPLATED IN THE SA ID EXPLANATION. 9.2. WE SHALL NOW ADVERT TO THE DECISION IN THE CASE OF KIRIT DAHYABHAI PATEL (SUPRA) REFERRED TO AND EXTENSIVELY RELIED UPON ON BEHALF OF THE ASSESSEE. WE NOTICE THAT IN THAT CASE, THE SUBSTANTIAL QUESTION OF LAW FRAMED FOR DECISION BEFORE THE HONBLE GUJARAT HIGH COURT WAS CONFINED TO AVAILABI LITY OF IMMUNITY UNDER CLAUSE(2) TO EXPLANATION-5 OF SECTION 271(1)(C) IN THE FACTS OF THE CASE. FOR READY REFERENCE, IT IS REPRODUCED HEREUNDER:- WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE INCOME TAX APPELLATE TRIBUNAL WAS RIGHT IN LAW IN RESTORING TH E PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT HOLDING THAT BENEFIT U NDER EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT WOULD BE AVAILABLE ONL Y FOR PERIOD WHERE DUE DATE FOR FILING THE RETURN UNDER SECTION 139(1) OF THE ACT HAD NOT EXPIRED? IN THE CONTEXT OF ABOVE QUESTION POSED, THE HONBLE GUJARAT HIGH COURT AFTER REFERRING TO SERIES OF DECISIONS OF VARIOUS COURTS FOUND THAT THE ASSESSEE HAS BROADLY SATISFIED ALL THE CONDITIONS REQUIRED FOR CLAIMING IMMUNITY FROM PAYMENT OF PENALTY UNDER S.271(1)(C) OF THE ACT. 9.3. SIGNIFICANTLY, THE ASSESSEE HIMSELF AFTER HAVI NG RAISED THE GENERAL PROPOSITION TOWARDS CLAIMING IMMUNITY TOWARDS UNDISCLOSED INCOM E INCLUDED IN S.153A RETURN, IN EXERCISE OF ITS WISDOM, PAUSED AND WENT ON TO WI THDRAW THE SAME AT A LATER STAGE BEFORE THE LD.THIRD MEMBER IN THE ITAT PROCEEDINGS IN KIRIT DAHYABHAI PATEL VS. ACIT REPORTED IN (2009) 121 ITD 159 (TM) WHICH DE CISION WAS SUBJECT MATTER OF APPEAL BEFORE THE HONBLE GUJARAT HIGH COURT. THUS , APPARENTLY, THE ASSESSEE HIMSELF WHILE IN APPEAL BEFORE HONBLE HIGH COURT, WAS NO LONGER AGGRIEVED BY THE PROPOSITION THAT RETURN UNDER S.153A IS AMENABLE TO PENALTY PROVISIONS UNDER S.271(1)(C) OF THE ACT. TO ELABORATE, THE LD.THIRD MEMBER CLEARLY RECORDED A FINDING THAT THE ASSESSEE HAS NOT DISPUTED THE POSI TION THAT SECTION 271(1)(C) IS APPLICABLE TO AN ASSESSMENT MADE UNDER S.153A. THE SUBSTANTIVE QUESTION THAT EMERGED BEFORE THE LD.THIRD MEMBER OF ITAT ON ACCOU NT OF DIFFERENCE OF OPINION WAS WHETHER IMMUNITY GRANTED UNDER EXPLANATION-5(2) TO SECTION 271(1)(C) IS AVAILABLE TO THE ASSESSEE. THUS, ON NUANCED AND CO NTEXTUAL ANALYSIS OF THE JUDGEMENT RENDERED BY THE HONBLE GUJARAT HIGH COUR T IN APPEAL UNDER S.260A OF THE ACT, IT IS DIFFICULT TO RECKON THE CASE MADE OU T BY THE ASSESSEE THAT ADDITIONAL INCOME DECLARED IN THE POST SEARCH RETURNS WOULD BE ENTITLED TO IMMUNITY FROM ITA NOS. 159 TO 163/AHD/17 [ MAHESH ALAMCHANDANI VS. ACIT] - 7 PENALTY IN A SWEEPING MANNER REGARDLESS OF THE SATI SFACTION OF CONDITIONS AS PROVIDED FOR ITS NON-APPLICABILITY AS ENUMERATED UN DER CLAUSE(2) OF EXPLANATION-5. 9.4. NEEDLESS TO SAY, SENTENCES USED WHILE RENDE RING A JUDGMENT CANNOT BE READ IN ISOLATION AND THEIR PURPORT AND CONTENTS ARE DER IVED FROM THEIR CONTEXT. AS NOTED, THE LAW IS CODIFIED FOR APPLICABILITY OF PEN ALTY IN SEARCH CASES. THE LEGISLATURE HAS MADE CONSCIOUS DISTINCTION BETWEEN THE CASES WHERE THE RETURN OF INCOME HAS ALREADY BEEN FILED PRIOR TO SEARCH QUA T HE CASES WHERE THE RETURN IS YET TO BE FILED AND HAS PUT THEM ON A DIFFERENT PEDESTA L. IT IS TRITE LAW THAT A JUDGEMENT CANNOT BE READ OUT OF CONTEXT IN WHICH THE QUESTIO N AROSE FOR DECISION IN THAT CASE. IT IS NEITHER DESIRABLE NOR PERMISSIBLE TO PICK OUT A WORD OR A SENTENCE FROM THE JUDGMENT OF A COURT DIVORCED FROM THE CONTEXT OF TH E QUESTION IN CONSIDERATION AND TO TREAT IT TO BE THE COMPLETE LAW DECLARED BY THE COURT. A JUDGMENT MUST BE READ AS A WHOLE AND THE OBSERVATIONS FROM THE JUDGMENT H AVE TO BE CONSIDERED IN THE LIGHT OF QUESTIONS WHICH WERE PRESENTED BEFORE THE COURT. A DECISION OF THE COURT TAKES ITS COLOUR FROM ITS QUESTION IN WHICH IT IS R ENDERED AS ENUMERATED IN CIT VS. SUN ENGINEERING WORKS PVT. LTD. (1992) 198 ITR 297 (SC). THUS, CONTEXT HOLDS THE KEY AND THE DECISION OF THE COURT HAS TO BE READ IN THE CONTEXT OF THE FACTS INVOLVED THEREIN AND NOT ON THE BASIS OF WHAT LOGICALLY FLOW S THERE FROM. A STRAY SENTENCE CANNOT BE ALLOWED TO BE PUT INTO SERVICE TO DRAW A MEANING WHICH WAS NEVER PROBABLY MEANT BY THE AUTHOR HIMSELF. A JUDGMENT I S NOT TO BE READ AS STATUTE. THUS, IN THE LIGHT OF QUESTION FRAMED FOR DECISION BY HONBLE GUJARAT HIGH COURT, WE ARE INCLINED TO HOLD THAT THE ABSTRACT PROPOSIT ION OF NON-APPLICABILITY OF PENALTY PROCEEDINGS IN ALL CIRCUMSTANCES (WHEREVER UNDISCLO SED INCOME HAS BEEN INCLUDED IN THE RETURN FILED POST-SEARCH) IS SINGULARLY MISP LACED AND IS NOT SUPPORTED BY THE FACTUAL CONTEXT IN WHICH THE DECISION IN KIRIT DAHY ABHAI PATEL(SUPRA) WAS RENDERED. 11. IN VIEW OF THE AFORESAID FINDINGS, WE DO NOT FI ND ANY MERIT IN THE PLEA OF THE ASSESSEE FOR IMPOSITION OF PENALTY WITH REFERENCE TO REVISED RETURN (POST SEARCH) ALONE. WHILE THE ISSUE ALREAD Y HAS BEEN DEALT WITH IN GREAT LENGTH IN THE CASE OF VIJAY K. SHAH (SUPRA ), WE MUST OBSERVE THAT AS PER THE SCHEME OF THE SECTION 271(1)(C) OF THE ACT GOVERNS IMPOSITION OF PENALTY IN THE EVENT OF CONCEALMENT O F PARTICULARS OF INCOME ETC. BY THE ASSESSEE. ERSTWHILE EXPLANATION 5/ EXPLANATION 5A HAS BEEN SPECIFICALLY ANNEXED TO SECTION 271(1)(C) OF THE ACT FOR IMPOSITION OF PENALTY IN SEARCH CASES. SECTION 271 AAA OF THE ACT WAS INSERTED FOR PENALTY IN SEARCH CASES IN RESPECT OF SPECIFIES PREVIOUS YEAR WHICH WAS LATER REPLACED BY SECTION 271AAB OF THE ACT. WE PRESENTLY CONCERNED WITH SECTION 271AAA (SPECIFIED YEAR) AND EXPLANATION 5A TO SECTION 271(1)(C) (NON SPECIFIED YEAR) OF THE ACT ITA NOS. 159 TO 163/AHD/17 [ MAHESH ALAMCHANDANI VS. ACIT] - 8 OWING TO THE FACT THAT SEARCH HAS BEEN INITIATED IN THE INSTANT CASE ON OR AFTER 01.06.2007. A BARE READING OF THE EXPLANA TION 5A WOULD SHOW THAT IT PROVIDES FOR EXCEPTION TO THE GENERAL RULE THAT CONCEALMENT IS COMMITTED VIS--VIS RETURN OF INCOME FILED. THE EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT DEEM S ACT OF CONCEALMENT EVEN BEFORE THE RETURN IS FILED. THUS, HAVING REGARD TO THE STATUTORY PRESUMPTION OF CONCEALMENT IN SEARCH CASES UNDER EXPLANATION 5A, WE DO NOT SUBSCRIBE TO THE FUNDAMEN TAL PLEA ON BEHALF OF THE ASSESSEE THAT PENALTY UNDER S. 271(1)(C) OF THE ACT CAN BE INVOKED ONLY WITH REFERENCE TO RETURN OF INCOME FIL ED AFTER SEARCH AND WHERE THERE WAS NO ADDITION OVER AND ABOVE THE INCO ME DECLARED BY THE ASSESSEE IN THE RETURN FILED UNDER S.153A OF TH E ACT (NOTWITHSTANDING THE FACT THAT SUCH RETURN FILED AF TER SEARCH INCLUDES ADDITIONAL NATURE BASED ON INCRIMINATING MATERIAL A ND ORAL EVIDENCE UNDER S.132(4) OF THE ACT). 12. PERTINENTLY, THE PLEA RAISED ON BEHALF OF THE A SSESSEE, IF ADMITTED, WOULD RENDER PROVISIONS OF SECTION 271AAA /271AAB OF THE ACT OTIOSE AND INFRUCTUOUS AS NOTED IN THE CASE OF VIJAY K. SHAH (SUPRA). 13. WE ALSO TAKE NOTE OF THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT SECTION 153A OF THE ACT OPENS WITH A NON OBSTANTE CLAUSE WHICH SEEKS TO EXCLUDE THE APPLICATION OF, INTER ALIA, SE CTION 139 OF THE ACT AND THUS, IN EFFECT, THE REVISED RETURN FILED UNDER S.153A OF THE ACT TAKES PLACE OF THE ORIGINAL RETURN UNDER S.139 OF T HE ACT FOR THE PURPOSES OF ALL OTHER PROVISIONS OF THE ACT. IT IS CONSEQUENTLY THE CLAIM OF THE ASSESSEE THAT ONCE THE ASSESSEE FILES A REVISED RETURN UNDER S.153A OF THE ACT, THE REVISED RETURN WILL BE TREATED AS THE ORIGINAL RETURN FILED UNDER S.139 OF THE ACT IN SO FAR ALL OTHER PROVISIONS OF THE ACT ARE CONCERNED. AS NOTED EARL IER, SECTION ITA NOS. 159 TO 163/AHD/17 [ MAHESH ALAMCHANDANI VS. ACIT] - 9 271AAA AND EXPLANATION 5A TO SECTION 271(1)(C) OF T HE ACT DEEMS CULPABILITY IN APPROPRIATE CASES EVEN BEFORE THE RE TURN IS FILED IN SEARCH CASES. THEREFORE, SUBSTITUTION OF RETURN OR IGINALLY FILED UNDER S.139 OF THE ACT BY SUBSEQUENT RETURN UNDER S.153A OF THE ACT HAS NO IMPACT ON THE LEGAL FICTION TOWARDS CONCEALMENT ENJ OINED BY EXPLANATION 5A OF THE ACT. THEREFORE, THE NON OBSTANTE PROVISION IN SECTION 153A OF THE ACT DOES NOT COME IN THE WAY OF PENALTY PROCEEDINGS IN SEARCH CASES AT ALL. THUS, THE PLEA OF THE ASSESSEE FOR APPLICABILITY OF PENALTY PROVISIONS QUA THE RETURN OF INCOME WHICH MAY HOLD GOOD UNDER THE NORMAL PROVISIONS WILL NOT APPLY TO SPECIAL PROVISIONS ENACTED IN SEARCH CASES. 14. OSTENSIBLY, EXPLANATION 5A OF THE ACT HAS BEEN INSERTED TO SPECIFICALLY ADDRESS THE SITUATION WERE CONSEQUENT TO A SEARCH, ASSETS AND VALUABLES OR UNDISCLOSED INCOME IN THE FORM OF ENTRY IN BOOKS, DOCUMENTS ETC. IS FOUND AND THEREAFTER THE ASSESSEE FILES RETURN OF INCOME IN CONSEQUENCE OF SEARCH. IN SUCH CASES, OW ING TO DEEMING FICTION, THE ADDITIONAL INCOME DECLARED IN THE RETU RN WOULD BE DEEMED TO BE CONCEALED INCOME. THUS, BY VIRTUE OF EXPLANA TION SECTION 271AAA OF THE ACT AND EXPLANATION 5A TO SECTION 271 (1)(C) OF THE ACT, IT IS PRESUMED BY THE STATUTE THAT THE ASSESSE E WOULD NOT HAVE DISCLOSED SUCH UNRECORDED IN COME IN THE RETURN FIL ED SUBSEQUENTLY IN THE ABSENCE OF SEARCH. THUS, WHILE AS A MATTER OF GENERAL PROPOSITION, THERE CAN PRESUMABLY BE NO CONCEALMENT OF INCOME TI LL FILING OF RETURN AS PER THE NORMAL PROVISIONS OF SECTION 271(1)(C) O F THE ACT, A PRESUMPTION OF CONCEALMENT OF INCOME CAN BE ATTRIBU TED UNDER EXPLANATION 5A /271AAA/271AAB OF THE ACT MUCH BEFOR E RETURN OF INCOME IS FILED UNLIKE THE NORMAL SITUATION WHERE C ONCEALMENT OF INCOME CAN BE ATTRIBUTED ONLY WITH REFERENCE TO THE RETURN FILED. IN VIEW OF THE SPECIAL PROVISIONS ENACTED FOR IMPOSITI ON OF PENALTY IN SEARCH CASES, THE DEFAULT UNDER S.271(1)(C) OF THE ACT GETS TRIGGERED ITA NOS. 159 TO 163/AHD/17 [ MAHESH ALAMCHANDANI VS. ACIT] - 10 TOWARDS UNDISCLOSED INCOME IMMEDIATELY ON SEARCH AC TION PENDING FILING OF RETURN UNDER S.139/S.153A OF THE ACT ALBE IT SUBJECT TO ESCAPE ROOTS AS PROVIDED IN SECTION 271AAA/271AAB/EXPLANAT ION 5A TO SECTION 271(1)(C) OF THE ACT ETC. 15. THE DECISION CITED ON BEHALF OF THE REVENUE IN PRASANNA DUGAR (SUPRA) ALSO AFFIRMS THE AFORESAID VIEW. 16. WE SHALL NOW TURN TO THE DECISIONS OF THE CO-OR DINATE BENCH CITED ON BEHALF OF THE ASSESSEE. WE NOTE THAT IN ARVINDB HAI V. BHANUSALI, THE EMPHASIS WAS PLACED BY THE CO-ORDINATE BENCH ON PRESENCE OF INCRIMINATING MATERIALS TO SUPPORT THE DISCLOSURE O F ADDITIONAL INCOME. THUS, THE AFORESAID DECISION IS CLEARLY DISTINGUISH ABLE IN VIEW OF THE PRESENCE OF INCRIMINATING MATERIALS WHICH FACT HAS NOT BEEN REBUTTED IN THE COURSE OF HEARING. ALL OTHER DECISIONS OF C O-ORDINATE BENCH HAVE ALSO BEEN PURSUED BUT FOUND TO BE OF NO SIGNIF ICANCE FOR DEALING WITH LEGAL PROPOSITION IN HAND AND FACTS IN ISSUE. 17. IN VIEW OF THE AFORESAID FINDINGS, WE DO NOT FI ND ANY MERIT IN THE PLEA OF THE ASSESSEE. NO OTHER PLEA HAS BEEN RAISE D ON MERITS TO ABSOLVE THE ASSESSEE FROM IMPOSITION OF PENALTY. C ONSEQUENTLY, THE APPEAL OF THE ASSESSEE IN ITA NO.159/AHD/2017 FOR A Y 2010-11 IS DISMISSED. 18. ALL OTHER CAPTIONED APPEALS ALSO CONCERN IMPOSI TION OF PENALTY UNDER S.271(1)(C) OF THE ACT ON THE INCOME UNDERSTA TED IN THE ORIGINAL INCOME OF RETURN FILED UNDER S.139 OF THE ACT PRIOR TO SEARCH QUA THE RETURN OF INCOME FILED UNDER S.153A OF THE ACT CONS EQUENT TO SEARCH. THUS, IN PARITY WITH THE LEGAL ISSUE DISCUSSED IN I TA NO. 159/AHD/2017 (SUPRA), WE DO NOT SUBSCRIBE TO THE PL EA OF THE ASSESSEE FOR REVERSAL OF THE ACTION OF THE CIT(A). WE THUS DECLINE TO INTERFERE ITA NOS. 159 TO 163/AHD/17 [ MAHESH ALAMCHANDANI VS. ACIT] - 11 WITH THE ACTION OF THE REVENUE. CONSEQUENTLY, ALL THE APPEALS IN ITA NOS. 159 TO 163/AHD/2017 ARE DISMISSED. 19. IN THE COMBINED RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 28/02/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 28/02/20 19