D.C.I.T. Cir-I, Asansol, Kolkata V. Avinash Ch. Gupta, Kolkata

ITA 414/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2517 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2010
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 17-03-2009
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Assessee Lawyers: N K PODDA R; A K TIBREWAL
• Keywords: Unexplained investment; Search and seizure; Question of law
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI, JM & HONBLE SRI B. C. MEENA, AM] I.T.A. NOS.414 & 415/KOL/2009 ASSESSMENT YEARS: 2005-06 TO 2006-07 DEPUTY COMMISSIONER OF INCOME-TAX -VS- AVINASH CH. GUPTA, KOLKATA. CENTRAL CIRCLE-1, KOLKATA. (PA NO. ADWPG 5103 F ) (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. JYOTI KUMARI RESPONDENT BY : S/SRI N. K. PODDAR & A. K. TIBRE WAL O R D E R PER D. K. TYAGI, JM : BOTH THESE APPEALS PREFERRED BY THE REVENUE ARE DI RECTED AGAINST THE SEPARATE ORDERS OF THE LD. CIT(A), KOLKATA DATED 31.12.2008 FOR ASSESSMENT YEARS 2005-06 TO 2006-07 ON THE COMMON GROUND IN DELETING THE PENALT Y LEVIED U/S. 271(1)(C) OF THE ACT.. SINCE GROUNDS ARE COMMON AND THE APPEALS HAVE BEEN HEARD TOGETHER, FOR THE SAKE OF CONVENIENCE, WE DISPOSE OF BOTH THE APPEALS BY THIS CONSOLIDATED ORDER. 2. BRIEFLY STATED FACTS OF THE CASE FOR AY 2005-06 ARE THAT A SEARCH AND SEIZURE OPERATION U/S. 132 OF THE ACT WAS CONDUCTED IN SHRI CON GROUP OF CASES ON 16.11.2005 AT THE RESIDENTIAL AND ALSO BUSINESS PREMISES OF THE A SSESSEE. SHRI AVINASH GUPTA IS ONE OF THE ASSESSEE IN THIS GROUP. IN THE ORDER PASSED U/ S. 271(1)(C) OF THE ACT, THE AO CONTENDED THAT THE ORIGINAL RETURN WAS FILED ON 30. 7.2005 DECLARING A TOTAL INCOME OF RS.9,52,738/-. IN RESPONSE TO NOTICE U/S. 153A, TH E ASSESSEE FILED HIS RETURN OF INCOME ON 13.3.2007 DECLARING A TOTAL INCOME OF RS.17,98,3 60/- WHICH INCLUDES AN UNDISCLOSED INCOME OF RS.8,45,625/-. THE ASSESSMENT IN THIS CA SE WAS COMPLETED U/S. 153A ON 10.12.2007 ON A TOTAL INCOME OF RS.18,05,390/-. THE AO, THEREFORE, OBSERVED THAT THE ASSESSEE CONCEALED AN INCOME OF RS.8,45,625/- WHICH WAS DETECTED DUE TO SEARCH AND SEIZURE OPERATION. HENCE, PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT WAS INITIATED AND ISSUED NOTICE U/S. 274 ON 10.12.2007. IN REPLY , THE ASSESSEE SUBMITTED AS UNDER : THE FACTS OF THE CASE ARE THAT DURING THE COURSE O F SEARCH, A DISCLOSURE U/S. 132(4) WAS MADE. SUBSEQUENTLY, RETURNS OF INCOME WERE FILED O FFERING THE ADDITIONAL INCOME AS PER THE DISCLOSURE MADE. THE RETURN OF INCOME FOR A.Y. 2005-06 WAS FILED BY ME U/S. 153A DECLARING A TAXABLE INCOME OF RS.17,98,360/-. THIS FIGURE CONTAINED AN AMOUNT OF RS.8,45,624/- WHICH WAS DECLARED BY ME U/S. 132(4). YOUR GOODSEIF HAS COMPUTED ASSESSMENT AFTER CONSIDERING THE ABOVE AND INITIATE D PENALTY PROCEEDINGS U/S. 271(1)(C) ON THE FIGURE OF RS.8,45,625/- THERE HAS NOT BEEN A NY CONCEALMENT OF FACTS FROM MY SIDE. HENCE, PENALTY CANNOT AND SHOULD NOT BE IMPOS ED ON SUCH FIGURE. 2 THE AO ALSO OBSERVED THAT RS.8,45,625/- WAS PART OF THE DISCLOSURE MADE BY THE ASSESSEE U/S. 132(4). BUT AS THE RETURN FOR ASSESSM ENT YEAR 2005-06 WAS ALREADY FILED BEFORE THE DATE OF SEARCH AS PER EXPLANATION-5 OF S ECTION 271(1)(C) THE ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME AND FURNISH ED INACCURATE PARTICULARS OF SUCH INCOME. IT IS DUE TO SEARCH AND SEIZURE ACTION THE ASSESSEE HAS MADE A DISCLOSURE OF RS.8,45,625/- FOR THE ASSESSMENT YEAR 2005-06. OTHE RWISE THE ASSESSEE WOULD NOT DISCLOSE HIS UNDISCLOSED INCOME, HENCE THE ASSESSEE S SUBMISSION CANNOT BE ACCEPTED. AFTER PERUSAL OF THE ASSESSEES SUBMISSION AND CONS IDERING THE ABOVE DISCUSSION A MINIMUM PENALTY OF EQUAL AMOUNT OF THE AMOUNT OF TA X SOUGHT TO BE EVADED WAS IMPOSED. ON APPEAL, THE LD. CIT(A) HAS HELD AS UND ER : IN MY OPINION, THE SECOND EXCEPTION TO EXPLANATION 5 CLEARLY HELP THE APPELLANT AGAINST THE LEVY OF PENALTY. EXPLANATION 5 IS A DE EMING PROVISION ACCORDING TO WHICH UNEXPLAINED INVESTMENT, EXPENSES, MONEY, ETC. WOULD BE DEEMED TO BE CONCEALED UNLESS ADMITTED WITH PROPER EXPLANATION ABOUT THE MANNER OF ACQUISITION IN A STATEMENT U/S. 132(4). IN THE PRESENT CASE SUCH ADMISSION U/S. 13 2(4) IS NOT DISPUTED. IN THAT CASE THE DELHI HIGH COURT JUDGMENT IN THE CASE OF CIT VS. CH HABRA EMPORIUM (264 ITR 249), MADRAS HIGH COURT JUDGMENT IN THE CASE OF CIT V. CH ANDRU SDV (266 ITR 175), RAJASTHAN HIGH COURT JUDGMENT IN THE CASE OF DEBILA L KANHAILAL V. ACIT (270 ITR 523), CIT V. KANHAILAL (299 ITR 19) AND G HIGH COUR T JUDGMENT IN THE CASE OF CIT V. MAHENDRA C. SHAH SUPPORTS THE CASE OF THE APPELLANT . RESPECTFULLY FOLLOWING THESE JUDICIAL AUTHORITIES THE ORDER OF PENALTY IS CANCEL LED AND THE APPEAL IS ALLOWED. FACTS OF THE CASE IN RESPECT OF AY 2006-07 AS OBSER VED BY THE AO ARE THAT A SEARCH AND SEIZURE OPERATION U/S. 132 OF THE ACT WAS CONDUCTED IN SHRICON GROUP OF CASES ON 16.11.2005 AT THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASSESSEE. SHRI AVINASH CH. GUPTA IS ONE OF THE ASSESSEE OF THIS GROUP. THE AS SESSEE FILED HIS RETURN OF INCOME ON 13.3.2007 U/S. 139 OF THE ACT ON A TOTAL INCOME OF RS.4,41,22,830/-. THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S. 143(3) ON 10.12.2007 O N A TOTAL INCOME OF RS.4,51,30,890/- DURING THE COURSE OF SEARCH AT VARIOUS PREMISES OF THE GROUP JEWELLERY WAS FOUND FOR A SUM OF RS.2,60,75,498/- AND JEWELLERY SEIZED OF RS .1,41,61,371/-, A CHART OF WHICH WAS GIVEN BY THE AO IN THE ORDER PASSED U/S. 271(1)(C) OF THE ACT. OUT OF THE JEWELLERY OF RS.2,60,75,498/- THE ASSESSEE HAS EXPLAINED JEWELLE RY ITEMS AMOUNTING TO RS.1,14,37,416/- TO BE BELONGING TO VARIOUS FAMILY MEMBERS. THE ASSESSEE FILED A RECONCILIATION CHART MATCHING THE JEWELLERY FOUND W ITH THE WEALTH TAX / VDIS RECORDS/ BALANCE SHEETS OF VARIOUS ASSESSES IN THE FAMILY. T HE ASSESSEE FILED A RECONCILIATION CHART OF JEWELLERY WHEREIN HE HAS CLAIMED THAT JEWELLERY VALUED AT RS.1,14,36,416/- WERE TALLYING WITH THE DECLARED RECORDS. BUT IT WAS SEEN THAT CERTAIN ITEMS OF INVENTORISED JEWELFERY HAVING ID MARK RG/12 AND NHG/28 VALUING A T RS.10,08,057/- COULD NOT BE 3 ACCEPTED TO BE TALLYING ON ACCOUNT OF EXCESSIVE VAR IATION IN WEIGHT OR NON-MATCHING OF DESCRIPTION OF ITEMS. ACCORDINGLY AN ADDITION OF RS .10,08,057/- WAS MADE IN THE HANDS OF THE ASSESSEE IN THE FIN. YR. 2005-06 AS UNEXPLAI NED EXPENDITURE. HENCE, PENALTY PROCEEDINGS U/S. 271(1)(C) WAS INITIATED AND NOTICE U/S. 274 WAS ISSUED ON 10.12.2007. IN REPLY, THE ASSESSEE SUBMITTED AS UNDER : THE FACTS OF THE CASE ARE THAT DURING THE COURSE O F SEARCH, A DISCLOSURE U/S. 132(4). WAS MADE. SUBSEQUENTLY, RETURNS OF INCOME WERE FILED OF FERING THE ADDITIONAL INCOME AS PER THE DISCLOSURE MADE. THE RETURN OF INCOME FOR A.Y. 2006 -07 WAS FILED BY ME U/S. 153A DECLARING A TAXABLE INCOME OF RS.4,41,22,834/-. I H AVE FURNISHED AN EXPLANATION REGARDING THE INVENTORY OF JEWELLERY MADE IN THE COURSE OF SE ARCH. THE SAID EXPLANATION WAS DULY EXAMINED BY YOUR GOODSEIF IN THE COURSE OF HEARING PROCEEDINGS. HOWEVER, YOUR GOODSEIF MADE AN ADDITION OF RS.10,08,057/- ON ACCOUNT OF EX CESSIVE VARIATION OF WEIGHT OR NON- MATCHING OF DESCRIPTION OF CERTAIN JEWELLERY ITEM. IN ORDER TO BUY PEACE AND AVOID LONG DRAWN LITIGATION, I HAD NOT DISPUTED TAX ON SUCH AD DITION MADE BY YOU. HOWEVER, THE FACT REMAINS THAT WHILE EXPLAINING JEWELLERY, I HAD OBJE CTED TO THE MANNER OF WEIGHMENT AND VALUATION OF JEWELLERY ITEMS. THERE HAS NOT BEEN AN Y CONCEALMENT FACTS FROM MY SIDE. HENCE, PENALTY CANNOT AND SHOULD NOT BE IMPOSED ON SUCH FIGURE. AFTER GOING THROUGH THE SUBMISSIONS OF THE ASSESSEE THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AS THE JEWELLERY HAVING ID MARK RG/12 AND NHG/28 VALUING AT RS.10,08,057/- DID NOT MATCH WITH THE RECONCILIA TION CHART IN RESPECT OF WEIGHT AND DESCRIPTION OF ITEMS. HE, THEREFORE, IMPOSED A MINI MUM PENALTY OF EQUAL AMOUNT OF THE AMOUNT OF TAX SOUGHT TO BE EVADED ON APPEAL, THE L D. CIT(A) HAS HELD AS UNDER : 5 THE SUBMISSIONS ARE CAREFULLY CONSIDERED. THE RE ASONS RECORDED IN SUPPORT OF THE ADDITION OF RS.10,08,057/- IN THE ASSESSMENT ORDER AS WELL AS IN THE ORDER OF PENALTY IS THAT THE TWO ITEMS CANNOT BE ACCEPTED TO BE TALLYI NG ON ACCOUNT OF EXCESSIVE VARIATION IN WEIGHT AND NON-MATCHING OF DESCRIPTION OF ITEMS . IT IS RELEVANT TO NOTE THAT THE DISCREPANCIES IN WEIGHT OR DESCRIPTION ARE NOT DISC USSED. NOTHING IS STATED ABOUT THE EXTENT OF VARIATION. THE ITEMS EXISTED BUT THE WEIG HT OR DESCRIPTION VARIED. THIS ASPECT ALSO DOES NOT INDICATE CONCEALMENT OF ANY ITEM OF J EWELLERY. THERE MIGHT BE MANY REASONS FOR VARIATION IN THE DESCRIPTION. EACH VALU ER MAY DESCRIBE AN ITEM OF JEWELLERY DIFFERENTLY. REGARDING THE VARIATION IN WEIGHT, WIT HOUT REFERRING TO THE EXTENT OF VARIATION, ALLOWANCE MUST BE MADE FOR VARIATION ON ACCOUNT OF DIFFERENT SCALE AND DIFFERENT WEIGHING CONDITION. IT IS RIGHTLY ARGUED THAT THESE ARE DEBATABLE MATTERS. IF THE APPELLANT DID NOT CHALLENGE IT, IT WAS RIGHTLY ATTR IBUTED THE DESIRE TO PUT AN END TO DISPUTE AND LITIGATION. IN MY OPINION, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEVY OF PENALTY IS NOT JUSTIFIED. THE ORDER OF PENALTY IS PASSED ONLY BECAUSE THE ASSESSED INCOME IS HIGHER THAN THE RETURNED INCOME. HOWEVER, PENALTY CANNOT BE TREATED AS A MANDATORY ACT IN CONSEQUENCE OF SUCH DIFFERENCE. AN OTHER WAY OF LOOKING AT IT IS THAT THE STATEMENT U/S 132(4) MADE THE DISCLOSURE WITH R EFERENCE TO ALL THE ITEMS OF JEWELLERY. ANY VARIATION IN THE VALUE ETC. CAN BE ACCEPTED AS A CONTINUATION OF THE STATEMENT U/S 132(4). IN THE LIGHT OF THE ABOVE, THE ORDER OF PEN ALTY IS CANCELLED AND THE APPEAL IS ALLOWED. AGGRIEVED BY THESE ORDERS, THE REVENUE ARE IN APPEA L BEFORE US. 4 3. AT THE TIME OF HEARING BEFORE US, THE LD. DR REL IED ON THE ORDERS OF THE AO AND ADVANCED THE SUBMISSIONS AS OBSERVED BY THE AO IN T HE PENALTY ORDER PASSED U/S. 271(1)(C) OF THE ACT. SHE FURTHER PLACED RELIANCE ON THE THIRD MEMBER CASE IN THE CASE OF ACIT V. KIRIT DAHYABHAI PATEL REPORTED IN 121 IT D 159 (AHM) AND BOMBAY HIGH COURT DECISION IN THE CASE OF SHERATON APPARELS VS. ACIT (2002) 256 ITR 20. CONCLUDING HER ARGUMENT, SHE PRAYED THAT THE PENALT Y IMPOSED BY THE AO MAY KINDLY BE SUSTAINED. 4. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE PLACED RELIANCE ON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE CASE LAWS RELIED ON BY THE DR ARE DISTINGUISHABLE ON FACTS AND, THEREFORE, THE ORDER PASSED BY THE LD. CIT(A) MAY KINDLY BE UPHELD AS THE SAME HAS BEEN PASSED AFTER FOLLOW ING THE DECISIONS IN THE CASES OF CIT VS. CHHABRA EMPORIUM 264 ITR 249 (MAD) AND CIT VS. CHANDRU SDV 266 ITR 175. HE FURTHER PLACED RELIANCE ON THE HONBLE APEX COUR TS DECISION IN THE CASE OF PRADIP J. MEHTA VS. CIT (2008) 300 ITR 231 (SC) WHEREIN IT WA S HELD THAT WHEN TWO INTERPRETATIONS ARE POSSIBLE, THEN INVARIABLY THE C OURT WOULD ADOPT THAT INTERPRETATION WHICH IS IN FAVOUR OF THE TAX PAYER AND AGAINST THE REVENUE. 5. AFTER HEARING THE RIVAL SUBMISSIONS, PERUSING T HE MATERIAL AVAILABLE ON RECORD AND THE CASE LAWS CITED BY BOTH THE PARTIES, WE FIND TH AT THE ORIGINAL RETURN WAS FILED BY THE ASSESSEE DECLARING A TOTAL INCOME OF RS.9,52,738/-. SUBSEQUENTLY, A SEARCH AND SEIZURE OPERATION WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE AND DURING THIS ACTION A DISCLOSURE U/S. 132(4) OF THE ACT WAS MADE AND IN RESPONSE TO NOTICE U/S. 153A, THE ASSESSEE FILED A RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.17,98,360/-. THIS FIGURE CONTAINED AN AMOUNT OF RS.8,45,624/- WHICH WAS DECL ARED BY THE ASSESSEE U./S. 132(4) OF THE ACT. THE AO WAS, THEREFORE, OF THE VIEW THAT AS THE RETURN FOR AY 2005-06 WAS ALREADY FILED BEFORE THE DATE OF SEARCH AS PER EXPL ANATION 5 TO SECTION 271(1)(C) OF THE ACT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF I NCOME AND FURNISHED INACCURATE PARTICULARS OF SUCH INCOME AND IT WAS DUE TO SEARCH AND SEIZURE ACTION THAT THE ASSESEE HAD MADE A DISCLOSURE OF RS.8,45,625/- AND OTHERWIS E THE ASSESSEE WOULD NOT HAVE DISCLOSED THIS UNDISCLOSED INCOME. HE, THEREFORE, IMPOSED A MINIMUM PENALTY EQUAL TO THE AMOUNT OF TAX SOUGHT TO BE EVADED U/S. 271(1)(C ) OF THE I. T. ACT. THE LD. CIT(A), HOWEVER, WAS OF THE OPINION THAT SECOND EXCEPTION TO EXPLANATION 5 OF SECTION 271(1)(C) CLEARLY HELP THE ASSESSEE AGAINST THE LEV Y OF PENALTY. EXPLANATION 5 IS A DEEMING PROVISION ACCORDING TO WHICH UNEXPLAINED IN VESTMENT, EXPENSES, MONEY ETC. 5 WOULD BE DEEMED TO BE CONCEALED UNLESS ADMITTED WIT H PROPER EXPLANATION ABOUT THE MANNER OF ACQUISITION IN A STATEMENT U/S. 132(4). SINCE IN THE PRESENT CASE ADMISSION U/S. 132(4) WAS NOT IN DISPUTE THE LD. CIT(A) PLACI NG RELIANCE ON THE CASE OF CIT VS. CHHABRA EMPORIUM (264 ITR 249), MADRAS HIGH COURT JUDGMENT IN THE CASE OF CIT V. CHANDRU SDV (266 ITR 175), RAJASTHAN HIGH COURT JUD GMENT IN THE CASE OF DEBILAL KANHAILAL V. ACIT (270 ITR 523), CIT V. KANHAILAL ( 299 ITR 19) AND G HIGH COURT JUDGMENT IN THE CASE OF CIT V. MAHENDRA C. SHAH CAN CELLED THE PENALTY. THE REVENUE HAS PLACED RELIANCE ON THE BOMBAY HIGH COURT DECISI ON IN THE CASE OF SHERATON APPARELS VS. ACIT (2002) 256 ITR 20 (BOM) AND ON TH E THIRD MEMBER CASE IN THE CASE OF ACIT VS. KIRIT DAHYABHAI PATEL REPORTED IN 121 I TD 159 (AHD) . WE FIND THAT IN THE CASE OF SHERATON APPARELS VS. ACIT (SUPRA) THE FOLLOWING SUBSTANTIAL QUESTION OF LAW AROSE : WHETHER, ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND LAW, THE DIARIES, ON THE BASIS OF WHICH THE ADDITIONS WERE MADE COULD BE REG ARDED AS BOOKS OF ACCOUNT FOR THE PURPOSES OF CLAUSE (1) OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT, SO AS TO PROVIDE IMMUNITY TO THE APPELLANTS? THUS, THE ISSUE BEFORE THE HONBLE BOMBAY HIGH COUR T WAS WHETHER DIARIES CAN BE REGARDED AS BOOKS OF ACCOUNT AND THE COURT HELD THA T THE DIARIES CANNOT BE CONSIDERED AS BOOKS OF ACCOUNTS FOR THE PURPOSE OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT AND IN THAT VIEW OF THE MATTER PENALTY FOR CONCEALMENT WAS CONFIRMED. ADMITTEDLY, THE FACTS OF THE INSTANT CASE ARE ENTIRELY DIFFERENT AND, THEREF ORE, THE RATIO AS LAID DOWN IN THAT CASE IS NOT APPLICABLE TO THE FACTS OF THIS CASE. SIMILARL Y, WE FIND THAT THE DECISION OF THE LD. 3 RD MEMBER IN ACIT VS. KIRIT DAHYABHAI PATEL REPORTED IN 121 ITD 159 (AHD) , THE LD. THIRD MEMBER FOLLOWING THE VIEW ALREADY TAKEN B Y THE TRIBUNAL IN THE GROUP CASE OF RUPESH BHOLIDAS PATEL UPHELD THE VIEW THAT IMMUNITY FROM PENALTY UNDER EXPLANATION 5 TO SECTION 271(1)(C) IS NOT AVAILABLE FOR THE EARL IER YEARS. THE LD. THIRD MEMBER CLEARLY OBSERVED IN HIS ORDER THAT HE IS NOT DEVIAT ING FROM THE EARLIER VIEW ON ACCOUNT OF JUDICIAL DISCIPLINE AND MORE PARTICULARLY BECAUSE T HAT VIEW HAD ALREADY BEEN TAKEN BY AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASES OF THE SAME GROUP ON IDENTICAL FACTS AND CIRCUMSTANCES. WE FURTHER FIND THAT IN THE CASE OF RUPESH BHOLIDAS PATEL, REPORTED IN (2009) 309 ITR (AT) 217 (AHD.), THE AHMEDABD BENCH OF THE TRIBUNAL PREFERRED TO FOLLOW THE DECISION OF THE HONBLE BOMBAY HIGH COUR T IN SHERATON APPARELS REPORTED IN (2002) 256 ITR 20 (BOM.). WE HAVE ALREADY OBSER VED THAT THE RATIOS LAID DOWN IN THIS CASE IS NOT APPLICABLE TO THE FACTS OF THE PRE SENT CASE. WE FURTHER FIND THAT THE HONBLE MADRAS HIGH COURT IN SDV CHANDRUS CASE, CI TED SUPRA, AS WELL AS HONBLE 6 RAJASTHAN HIGH COURT IN KANHAIYALALS CASE AFTER CO NSIDERING THE PROVISIONS CONTAINED IN EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT HE LD IN FAVOUR OF THE ASSESSEE TO THE EFFECT THAT THE IMMUNITY UNDER EXPLANATION 5 TO SEC TION 271(1)(C) OF THE ACT IS AVAILABLE EVEN IN RESPECT OF INCOME DISCLOSED FOR THE YEARS EARLIER TO THE DATE OF SEARCH. WE FURTHER FIND THAT THERE IS NO DECISION ON THIS ISSU E BY THE JURISDICTIONAL HIGH COURT. SINCE TWO DEISIONS OF THE HONBLE MADRAS HIGH COURT AS WELL AS THE HONBLE RAJASTHAN HIGH COURT ARE IN FAVOUR OF THE ASSESSEE, WE FIND N O INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A) AND THE SAME IS HEREBY UPHELD AS THE LAW IS WELL SETTLED THAT EVEN WHEN TWO VIEW ARE POSSIBLE, THE VIEW WHICH IS FAVOURABLE TO THE ASSESSEE BE TAKEN. THE REVENUE APPEALS ARE DISMISSED. 6. IN THE RESULT, THE APPEALS OF THE REVENUE ARE D ISMISSED. 7. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30. 6.2010 SD/- SD/- (B. C. MEENA) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH JUNE, 2010 PRONOUNCED BY SD/- (CDR) SD/- (DKT) AM JM COPY TO : 1. DCITL, CENTRAL CIRCLE-1, KOLKATA. 2. SRI AVINASH CH. GUPTA, 4, B.B.D. BAG (EAST), KOLKAT A-1. 3. CIT(A), KOLKATA 4. CIT, KOLKATA. 5. D.R., ITAT, KOLKATA. TRUE COPY BY ORDER DEPUTY REGISTRAR JD.(SR.P.S.) I.T.AT., KOLKATA