DCIT, CC-XVI, Kolkata, Kolkata V. Shri Satyam Roy Chowdhury, Kolkata

ITA 639/KOL/2009

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5052 (ITAT-KOLKATA)
• Duration Of Justice: 6 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2000-2001
• Appeal Filed On: 23-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT SUBHRA BISWAS
• Assessee Lawyers: A K TIBREWAL; AMIT AGARWA
• Keywords: Search and seizure; Document seized; Question of law; Initiation of penalty proceedings; Tax effect; Documents seized
• Section: 143(3); 153A; 147; 139

Judgement Text

I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 1 OF 14 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NOS. 639, 640, 641, 642, 643 & 644/KOL/2009 ASSESSMENT YEARS:2000-01, 2001-02, 2002-03, 2003-04 , 2004-05& 2005-06 DEPUTY COMMISSIONER OF INCOME TAX,................. ...................APPELLANT CENTRAL CIRCLE-XVI, KOLKATA, PODDAR COURT, 18, RABINDRA SARANI, KOLKATA-700 001 -VS.- SHRI SATYAM ROY CHOWDHURY,......................... ........................RESPONDENT FE-401, SECTOR-III, SALT LAKE CITY, KOLKATA-700 064 [PAN : ACWPR 5806 K] APPEARANCES BY: SHRI RAJAT SUBHRA BISWAS, CIT, D.R., FOR THE DEPARTMENT SHRI A.K. TIBREWAL, FCA AND SHRI AMIT AGARWAL, ADVO CATE, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : JANUARY 12, 2016 DATE OF PRONOUNCING THE ORDER : FEBRUARY 24, 2016 O R D E R PER SHRI P.M. JAGTAP :- THESE SIX APPEALS ARE PREFERRED BY THE REVENUE AGAI NST SIX SEPARATE ORDERS PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL- II, KOLKATA DATED 12.01.2009, WHEREBY HE CANCELLED THE PENALTIES IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE ACT FOR THE YEARS UNDER CONSIDERATION AS UNDER:- ASSESSMENT Y EAR AMOUNT OF PENALTY 2000 - 2001 RS. 4,99,620/ - 2001 - 20 02 RS. 7,02,000/ - 2002 - 2003 RS. 6,12,000/ - 2003 - 2004 RS.11,25,000/ - 2004 - 2005 RS.24,25,000/ - 2005 - 2006 RS.68,25,882/ - I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 2 OF 14 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO BELONGS TO THE TECHNO GROUP, WHICH IS INVOLVED IN EDUCATIONAL ACTIVITIES. THE SAID ACTIVITIES ARE CARRIED ON IN THE NAME OF SOME SOCIE TIES/TRUSTS INCLUDING MAINLY THE INSTITUTE OF COMPUTER ENGINEERS (INDIA), THE ACADEMY OF ENGINEERS (INDIA), TECHNO INDIA, THE ACADEMY OF ENG INEERING & MANAGEMENT TRUST, THE ACADEMY OF HIGHER EDUCATION A ND TECHNICAL TRUST. THE TECHNO GROUP IS CLOSELY HELD AND FAMILY MANAGED WITH KEY PERSONS BEING ASSESSEE AND SHRI GOUTAM ROYCHOWDHURY . A SEARCH AND SEIZURE ACTION WAS CONDUCTED IN THE CASES BELONGING TO TECHNO GROUP ON 09.08.2005 INCLUDING THE CASE OF THE ASSESSEE. DURI NG THE COURSE OF THE SAID ACTION, CASH, JEWELLERY AND BANK DEPOSITS WERE FOUND BESIDE SOME UNDISCLOSED BANK ACCOUNTS AND SOME INCRIMINATING MA TERIAL SHOWING UNRECORDED TRANSACTIONS. THE UNACCOUNTED BANK ACCOU NTS AND UNRECORDED TRANSACTIONS FOUND DURING THE COURSE OF SEARCH WERE OWNED BY THE ASSESSEE AND IN HIS STATEMENT RECORDED UNDER SECTIO N 132(4), THE ASSESSEE OFFERED TO TAX ADDITIONAL INCOME OF RS.5,0 0,00,000/-. SUBSEQUENTLY IN THE RETURNS OF INCOME FILED IN RESP ONSE TO THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 153A, THE ADDITIONAL INCOME SURRENDERED DURING THE COURSE OF SEARCH WAS OFFERED TO TAX BY THE ASSESSEE AS UNDER:- ASSESSMENT YEAR AMOUNT 200 1 - 200 2 RS. 20,00,000 / - 200 2 - 200 3 RS. 20,00,000 / - 200 3 - 200 4 RS. 35, 00 ,000/ - 200 4 - 200 5 RS. 75,00 ,000/ - 200 5 - 200 6 RS. 1,50 , 00, 000/ - 200 6 - 200 7 RS. 2,00,00,000 / - TOTAL RS.5,00,00,000/ - 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE SUO MOTU PREPARED A CASH FLOW STATEMENT TAKING INTO CONSIDER ATION THE I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 3 OF 14 UNACCOUNTED INFLOW AND OUTFLOW AS EVIDENT FROM THE VARIOUS DOCUMENTS, BANK ACCOUNTS AND OTHER ASSETS FOUND DURING THE COU RSE OF SEARCH AND OFFERED HIGHER ADDITIONAL INCOME OF RS.5,67,92,912/ - ON THE BASIS OF SUCH CASH FLOW STATEMENT INSTEAD OF RS.5,00,00,000/- FOR THE VARIOUS ASSESSMENT YEARS AS UNDER:- ASSESSMENT YEAR AMOUNT 2000 - 2001 RS. 15,14,00 0/ - 2001 - 2002 RS. 20,00 ,000/ - 2002 - 2003 RS 20,00 ,000/ - 2003 - 2004 RS. 35,00, ,000/ - 2004 - 2005 RS. 75,00 ,000/ - 2005 - 2006 RS. 2,,02,78,912/ - 2006 - 07 RS.2,00,00,000/ - TO TAL RS.5,67,92,912/ - IN THE ASSESSMENTS COMPLETED UNDER SECTION 143(3)/1 53A VIDE ORDERS DATED 31.12.2007, THE INCOME AS FINALLY OFFERED BY THE ASSESSEE WAS ACCEPTED AND BROUGHT TO TAX BY THE ASSESSING OFFICE R IN THE HANDS OF THE ASSESSEE. 4. THEREAFTER PENALTY PROCEEDINGS UNDER SECTION 271 (1)(C) WERE INITIATED BY THE ASSESSING OFFICER IN RESPECT OF TH E ADDITIONAL INCOME OFFERED BY THE ASSESESE IN THE RETURNS OF INCOME FI LED IN RESPONSE TO THE NOTICES UNDER SECTION 153A AS WELL AS DURING THE CO URSE OF ASSESSMENT PROCEEDINGS ON THE BASIS OF CASH FLOW STATEMENT SUO MOTU PREPARED BY HIM FOR ALL THE YEARS UNDER CONSIDERATION. THE EXPL ANATION OFFERED BY THE ASSESSEE IN RESPONSE TO THE PENALTY NOTICES ISSUE B Y THE ASSESSING OFFICER MAINLY WAS THAT THE ADDITIONAL INCOME HAD BEEN OFFE RED VOLUNTARILY AND THE SAME HAVING BEEN ACCEPTED IN THE ASSESSMENTS, T HERE WAS NO CASE OF ANY CONCEALMENT OF PARTICULARS OF INCOME OR FURNISH ING OF INACCURATE PARTICULARS OF INCOME WARRANTING LEVY OF PENALTY UN DER SECTION 271(1)(C). I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 4 OF 14 THIS EXPLANATION OF THE ASSESSEE WAS NOT FOUND ACCE PTABLE BY THE ASSESSING OFFICER. ACCORDING TO HIM, THE ADDITIONAL INCOME WAS DISCLOSED BY THE ASSESSEE ONLY AS A RESULT OF SEARCH AND SO T HE DISCLOSURE MADE BY THE ASSESSEE COULD NOT BE CONSIDERED AS VOLUNTARY. HE, THEREFORE, PROCEEDED TO IMPOSE PENALTIES UNDER SECTION 271(1)( C) FOR ALL THE YEARS UNDER CONSIDERATION, AS MENTIONED IN PARA 1 OF THIS ORDER BEING 100% OF THE TAX SOUGHT TO BE EVADED BY THE ASSEESESE IN RES PECT OF ADDITIONAL INCOME OFFERED AS A RESULT OF SEARCH. 5. THE PENALTIES IMPOSED BY THE ASSESSING OFFICER U NDER SECTION 271(1)(C) FOR ALL THE YEARS UNDER CONSIDERATION WER E CHALLENGED BY THE ASSESSEE IN THE APPEALS FILED BEFORE THE LD. CIT(AP PEALS). DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT( APPEALS), THE ASSESSEE MAINLY CLAIMED THE IMMUNITY AVAILABLE UNDER CLAUSE 2 OF EXPLANATION 5 TO SECTION 271(1)(C) BY CONTENDING THAT THE INCOME OFF ERED DURING THE COURSE OF SEARCH HAVING BEEN DULY DECLARED IN THE R ETURNS OF INCOME AND TAX THEREON HAVING BEEN PAID, NO PENALTY UNDER SECT ION 271(1)(C) WAS LEVIABLE AS PER CLAUSE 2 OF EXPLANATION 5 TO SECTIO N 271(1)(C). THIS STAND OF THE ASSESSEE WAS FOUND ACCEPTABLE BY THE LD. CIT (APPEALS) AND HE CANCELLED THE PENALTIES IMPOSED BY THE ASSESSING OF FICER UNDER SECTION 271(1)(C) FOR ALL THE SIX YEARS UNDER CONSIDERATION FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 3.1 TO 3.3 OF HIS IM PUGNED ORDERS, WHICH ARE IDENTICAL:- 3.1. THE SUBMISSIONS ARE CAREFULLY CONSIDERED IN T HE LIGHT OF THE FACTS RECORDED IN THE ASSESSMENT ORDER AND THE PENALTY ORDER. FROM A READING OF PENALTY ORDER, IT IS SEEN THAT THE CASH FOUND AT DIFFERENT SEARCHED PREMISES AND CLAIMED BY THE APPELLANT WERE OFFERED AS PART OF THE CASH FLOW OF ADDITIONAL INCOME REFLECTED IN THE RETURN OF INCOME U/S. 153A. THERE WAS NO UNEXPLAINED JEWELLERY. SEVERAL BANK ACCOUNTS WER E FOUND AT THE TIME OF SEARCH SOURCE OF WHICH WERE NOT DISCLOS ED AND WERE OWNED UP BY THE APPELLANT OR BENEFICIALLY OPERATED BY HIM, THE APPELLANT WAS ALSO FOUND TO BE THE OWNER OF AN FIXE D DEPOSIT OF RS.78,272/-. THE TOTAL AMOUNT FROM ALL THESE SOURCE S IS RS.76,43,397/- FOR WHICH A CASH FLOW STATEMENT IS P REPARED. THE SEIZED DOCUMENTS AND PAPERS ARE STATED TO BE RECORD ING TRANSACTIONS GENERALLY REFLECTED IN THE DISCLOSED B OOKS OF ACCOUNT. SOME UNACCOUNTED TRANSACTIONS ARE ALSO ADM ITTED. I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 5 OF 14 CONSIDERING EVERY ASPECT OF THE SEARCH MATERIAL A C ASH-FLOW STATEMENT IS PREPARED IN THE COURSE OF ASSESSMENT P ROCEEDINGS AND THE APPELLANT OFFERED ADDITIONAL INCOME AS TABU LATED IN PARA 2.1.OF THIS ORDER. THE DIFFERENCE BETWEEN THE AMOUNT OF UNDISCLOSED INCOME IN THE STATEMENT U/S. 132(4) AND THE DISCLOSURE IN THE COURSE OF ASSESSMENT PROCEEDINGS IS RS.67,92,912/-ON ACCOUNT OF MORE ACCURATE WORKING O F THE DISCLOSED INCOME ON A SCRUTINY OF THE SEARCH MATERI AL, THE SAME HAD TO BE ENHANCED FROM THE ROUND FIGURE OF RS.5,00 ,00,000 TO THE ACCURATE FIGURE OF RS.5,67,92,912/-. NO NEW SOU RCE OF UNACCOUNTED AND UNDISCLOSED INCOME IS DETECTED. IN MY OPINION, IT IS TO THE CREDIT OF THE APPELLANT THAT THE CORRE CT AMOUNT OF UNDISCLOSED IS WORKED OUT ON THE BASIS OF THE SAME MATERIAL FOR THE PURPOSE OF ASSESSMENT U/S. 153A. THEREFORE THE DISCLOSURE OF THE ADDITIONAL AMOUNT OF RS.67,92,912/- IS A CON TINUATION OF THE DISCLOSURE OF RS.5,00,00,000/- IN THE STATEMENT U/S. 132(4). AS A CONSEQUENCE, THE YEAR WISE ALLOCATION OF UNDIS CLOSED INCOME IS REVISED AS SEEN FROM PARAGRAPH 2.1 OF THI S ORDER. PENALTY PROCEEDINGS ARE IN RESPECT THIS ADDITIONAL AMOUNT. 3.2. IN MY OPINION, THE APPELLANT SHOULD GET THE PR OTECTION OF SECOND EXCEPTION OF EXPLANATION 5 TO SECTION 271(1) (C). THE RELEVANT JUDICIAL AUTHORITIES ARE DELHI HIGH COURT JUDGMENT IN THE CASE OF C.I.T VS. CHHABRA EMPORIUM (264 ITR 299 ), RAJASTHAN HIGH COURT JUDGEMENT IN CASE OF C.I.T VS~ C. KANHAIYALAL ( 299 ITR 19), GUJARAT HIGH COURT JUDGE MENT IN THE CASE OF C.IT VS. MAHENDRA C. SHAH (299 ITR 305). IT IS TRUE THAT THE ADMISSION IN THE ASSESSMENT PROCEEDINGS IS FOR AN AMOUNT AS INCOME IN THIS ASSESSMENT YEAR WHEN THE STATEMEN T U/S 132(4) DID NOT OFFER ANY INCOME FOR THIS ASSESSMENT YEAR. BUT THE DISCLOSURE U/S 132(4) WAS FOR A LUMP SUM AMOUNT OF RS.5,00,000/-, WHICH IS ALLOCATED TO DIFFERENT YEAR S BASED ON SEARCH MATERIAL AND FOR CONVENIENCE OF ASSESSMENT. THE STATEMENT U/S 132(4) OR THE ASSESSMENT ORDERS BASED ON THE STATEMENT DO NOT CORRELATE THE ADDITIONAL INCOME OF FERED FOR TAX WITH SPECIFIC DOCUMENTS OR UNEXPLAINED ASSET DE TECTED DURING THE SEARCH. IT THE ASSESSEE, WHO, ON HIS OWN , ARRIVED AT A HIGHER AMOUNT OF TOTAL UNDISCLOSED INCOME. AS A CON SEQUENCE OF THIS A CERTAIN INCOME WAS ALLOCATED TO AY 2000-01 A LSO, WHICH WAS NOT DONE EARLIER. BUT THIS IS A PART OF AND IN CONSEQUENCE OF MORE ACCURATE WORKING CARRIED OUT VOLUNTARILY BY TH E APPELLANT ON A CLOSER SCRUTINY OF THE SEIZED MATERIAL. 3.3. IN THE EXERCISE OF DISCRETION FOR LEVY OF PENA LTY U/S 271(1)(C), THESE FACTS BECAME RELEVANT. THE APPELLA NT WANTED AN END TO ALL DISPUTES. AS A DEMONSTRATION OF THIS DESIRE, THE ASSESSMENT IS NOT DISPUTED. THE ENHANCEMENT OF ADDI TIONAL INCOME IS ANOTHER DEMONSTRATION OF THIS DESIRE. IN THE ABSENCE OF ANY SPECIFIC MATERIAL LEADING TO THE DETECTION O F ADDITIONAL INCOME FOR A.Y. 2000-01 BY THE ASSESSMENT ORDER, IT SHOULD BE TREATED AS A PART OF THE DESIRE OF THE APPELLANT T O BUY PEACE WITH THE DEPARTMENT WITH THIS ACCURATE WORKING ON T HE BASIS OF I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 6 OF 14 THE IDENTICAL SEARCH MATERIAL IN RESPECT OF WHICH T HE EARLIER ADMISSION OF ADDITIONAL INCOME OF RS.500,00,000/- F OR THE ENTIRE SEARCH PERIOD WAS MADE. IT IS THUS THAT THE AUTHORITIES RELIED UPON BY THE APPELLANT BEFORE THE ASSESSING O FFICER IN THE COURSE OF PENALTY PROCEEDINGS BECAME RELEVANT. CONS IDERING THE TOTALITY OF CIRCUMSTANCES, THIS IS NOT A FIT CASE F OR THE LEVY OF PENALTY. THE ORDER OF PENALTY IS CANCELLED AND THE APPEAL IS ALLOWED. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE REVENUE HAS PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE, AT THE OUTSET, HAS POINTED OUT THAT THE TAX EFFECT INV OLVED IN THREE OF THE APPEALS OF THE REVENUE FOR A.Y. 2000-01, 2001-02 & 2002-03 IS LESS THAN THE REVISED MONETARY LIMIT RECENTLY FIXED BY THE CB DT VIDE CIRCULAR NO. 21/2015 DATED 10 TH DECEMBER, 2015 AT RS.10,00,000/- FOR FILING THE APPEAL BY THE REVENUE BEFORE THE TRIBUNAL AND THIS POSITION CLEARLY EVIDENT FROM THE GROUNDS RAISED BY THE REVENUE IN T HIS APPEAL IS NOT DISPUTED EVEN BY THE LD. D.R. IN CIRCULAR NO. 21/20 15 (SUPRA) RECENTLY ISSUED BY THE CBDT, THE MONETARY LIMIT FOR FILING T HE APPEALS BY THE REVENUE BEFORE THE TRIBUNAL HAS BEEN INCREASED TO R S.10,00,000/- AND AS CLARIFIED IN THE SAID CIRCULAR, THE SAID MONETARY L IMIT IS APPLICABLE RETROSPECTIVELY EVEN TO THE APPEALS PENDING BEFORE THE TRIBUNAL. THE CBDT HAS ALSO INSTRUCTED THAT SUCH PENDING APPEALS BELOW THIS SPECIFIED TAX LIMIT OF RS.10,00,000/- MAY BE WITHDRAWN/ NOT P RESSED. KEEPING IN VIEW THE INSTRUCTION GIVEN BY THE CBDT VIDE CIRCULA R NO. 21/2015 DATED 10.12.2015, WHICH IS SQUARELY APPLICABLE IN THE PRE SENT CASE, THE APPEALS FILED BY THE REVENUE FOR A.YS. 2000-01, 2001-02 & 2 002-03 ARE TREATED AS WITHDRAWN/NOT PRESSED AND DISMISSED ACCORDINGLY. 7. AS REGARDS THE OTHER THREE APPEALS OF THE REVENU E FOR A.Y. 2003-04, 2004-05 & 2005-06 INVOLVING A COMMON ISSUE RELATING TO THE CANCELLATION BY THE LD. CIT(APPEALS) OF THE PENALTIES IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C), WE HAVE HEARD THE ARGUMENT S OF BOTH THE SIDES ON MERIT AND ALSO PERUSED THE RELEVANT MATERIAL AVA ILABLE ON RECORD. IT IS I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 7 OF 14 OBSERVED THAT THE UNDISCLOSED INCOME OFFERED BY THE ASSESSEE IN THE STATEMENT RECORDED UNDER SECTION 132(4) IN THE COUR SE OF SEARCH HAVING BEEN DECLARED BY THE ASSESSEE IN THE RETURNS OF INC OME FILED FOR A.YS. 2003-04, 2004-05 & 2005-06 AND TAX IN RESPECT OF SU CH INCOME HAVING BEEN PAID BY HIM TOGETHER WITH INTEREST, THE IMMUNI TY AS PROVIDED UNDER CLAUSE 2 OF EXPLANATION 5 TO SECTION 271(1)(C) WAS AVAILABLE TO THE ASSESSEE AS HELD BY THE LD. CIT(APPEALS) IN HIS IMP UGNED ORDER AND THIS POSITION IS NOT DISPUTED EVEN BY THE LD. D.R. HE, H OWEVER, HAS CONTENDED THAT THE ADDITIONAL INCOME OF RS.52,78,912/- WAS OF FERED BY THE ASSESSEE FOR AY 2005-06 OVER AND ABOVE THE UNDISCLOSED INCOM E OFFERED IN THE STATEMENT RECORDED UNDER SECTION 132(4) AND DECLARE D IN THE RETURN OF INCOME FILED IN RESPONSE TO THE NOTICES UNDER SECTI ON 153A AND THE IMMUNITY AS PER CLAUSE 2 OF EXPLANATION 5 TO SECTIO N 271(1)(C) IS NOT AVAILABLE IN RESPECT OF THIS INCOME. IN THIS REGARD , THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED ON THE DECISION OF THE COORDINA TE BENCH OF THIS TRIBUNAL IN THE CASE OF DCIT VS.- DEEPAK CHOUDHURY RENDERED VIDE ITS ORDER DATED 30.11.2015 IN ITA NOS. 1875 TO 1878/KOL /2009, WHEREIN THE ASSESSEE WAS HELD TO BE ENTITLED FOR SUCH IMMUNITY EVEN IN RESPECT OF ADDITIONAL INCOME OFFERED DURING THE COURSE OF ASSE SSMENT PROCEEDINGS AFTER DISCUSSING THE VARIOUS CASE LAWS IN PARAGRAPH NO. 6.2 TO 6.6 OF THE ORDER AS UNDER:- 6.2. WE FIND LOT OF FORCE IN THE ARGUMENTS OF THE LEARNED AR THAT THE ADDITIONAL DISCLOSURE OF RS. 25,00,000/- FOR THE ASST YEAR 200 5-06 WAS MADE BEFORE ANY DETECTION BY THE DEPARTMENT AND WAS MADE VOLUNTARIL Y AND HENCE THE SAME HAS TO BE CONSTRUED ONLY AS A REVISION OF THE DISCLOSURE S TATEMENT U/S 132(4) OF THE ACT AS THERE WAS NOTHING CONTRARY THAT WAS SUGGESTED IN TH E PENALTY ORDER U/S 271(1)(C ) OF THE ACT WITH REGARD TO THE SAME. IN THIS REGARD , IT IS RELEVANT TO PLACE RELIANCE ON THE DECISION OF COORDINATE BENCH DECISION OF THIS T RIBUNAL IN THE CASE OF DCIT VS SHAYAM SUNDER BERIWAL (KOLKATA TRIBUNAL) IN ITA NOS . 1061 , 1062 & 1063 / KOL / 2008 DATED 31.10.2008 FOR THE ASST YEARS 2003-04 , 2004-05 & 2005-06 , WHEREIN IT WAS HELD THAT :- IN THE PRESENT CASE, THIS IS ALSO NOT A CASE OF R EVENUE THAT THE HIGHER INCOME DECLARED BY THE ASSESSEE DURING THE COURSE OF RE-AS SESSMENT PROCEEDINGS ONLY AFTER BEING APPRAISED BY THE DEPARTMENT SINCE THE ASSESSE E PAID TAX OF SUCH HIGHER INCOME WHICH WAS DISCLOSED VIDE FILING THE RETURN IN RESPO NSE TO NOTICE UNDER SECTION 153C AND SUCH HIGHER INCOME HAS BEEN FILED BY THE ASSESS EE SUO MOTU AND BEFORE ANY SPECIFIC FINDING BY THE DEPARTMENT THE SAME CANNOT TANTAMOUNT TO CONCEALMENT. WE ALSO FIND THAT SUCH HIGHER INCOME SHOWN BY THE ASSE SSEE HAS ALSO BEEN FOUND TO BE I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 8 OF 14 CORRECT BY THE DEPARTMENT, THEREFORE, IN OUR CONSID ERED OPINION AND FOLLOWING THE RATIO LAID DOWN BY THE VARIOUS LEGAL PRONOUNCEMENT THE SAME CANNOT BE TERMED TO BE CONCEALMENT AND IS BEYOND THE SCOPE OF PENALTY U NDER SECTION 271(1)(C ) AND , THEREFORE, IN THESE CIRCUMSTANCES, IN OUR CONSIDERE D OPINION, THE LEARNED CITA WSA JUSTIFIED IN DELETING THE ADDITION IN CASE OF ALL T HE ABOVE FOUR YEARS AND WE, THEREFORE, DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND UPHOLD THE SAME AND REJECT THE GROUNDS RAISED BY THE REVENUE IN CAS E OF ALL THE FOUR YEARS. 6.2.1. IT WILL BE RELEVANT TO DISCUSS THE FOLLOWIN G CASE LAW AT THIS JUNCTURE I.E THE DECISION OF ITAT DELHI BENCH IN THE CASE OF PREM ARORA VS DCIT REPORTED IN (2012) 24 TAXMANN.COM 260 (DELHI) WHEREIN THE HEAD NOTES ARE REPRODUCED HEREIN BELOW: - SECTION 271(1)(C ), READ WITH SECTION 153A, OF THE INCOME TAX ACT, 1961 PENALTY FOR CONCEALMENTOF INCOME ASSESSMENT YEAR 2004-05 WH ETHER FOR PURPOSE OF IMPOSITION OF PENALTY UNDER SECTION 271(1)(C ) RESULTING AS A RES ULT OF SEARCH ASSESSMENTS MADE UNDER SECTION 153A, ORIGINAL RETURN OF INCOME FILED UNDER SECTION 139 CANNOT BE CONSIDERED HELD, YES WHETHER CONCEALMENT OF INCOME HAS TO BE SEEN WITH REFERENCE TO ADDITIONAL INCOME BROUGHT TO TAX OVER AND ABOVE INCOME RETURNED BY AS SESSEE IN RESPONSE TO NOTICE ISSUED UNDER SECTION 153A AND, THEREFORE, ONCE RETURNED IN COME UNDER SECTION 153A IS ACCEPTED BY ASSESSING OFFICER, IT CAN NEITHER BE A CASE OF CONC EALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME HELD, YES SEARCH WAS CONDUCTED ON 22-11-2006 AND CASH WAS FOUND FROM POSSESSION OF ASSESSEE ASSESS EE HAD DRAWN CASH FLOW STATEMENT FOR ENTIRE PERIOD OF SIX YEARS IN ORDER TO DETERMINE UN DISCLOSED INCOME BASED ON SEIZED MATERIAL FOR EACH OF SIX ASSESSMENT YEARS WHETHER PENALTY UNDER SECTION 271(1)(C ) CANNOT BE IMPOSED BY INVOKING EXPLANATION 5 IN ASSESSMENT YEA R 2004-05 IN RESPECT OF CASH FOUND IN PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2007-08 , MERELY ON PRESUMPTION THAT ASSESSEE MIGHT HAVE BEEN IN POSSESSION OF CASH THROUGHOUT PE RIOD COVERED BY SEARCH ASSESSMENTS HELD, YES [ IN FAVOUR OF ASSESSEE] 6.2.2. WE FIND THAT THIS DECISION OF DELHI TRIBUNA L HAS BEEN FOLLOWED BY THIS TRIBUNAL IN THE CASE OF DCWT VS VIVEK KR. KATHOTIA IN WTA NOS. 02 TO 08 / KOL / 2013 DATED 15.5.2015, WHEREIN IT WAS HELD THAT :- THAT THE CONCEPT OF A VOLUNTARY RETURN OF INCOME M AY BE IMPORTANT IN PENALTY PROCEEDINGS INITIATED IN THE NORMAL ASSESSMENT PROCEEDINGS U/S 143(3) OR 147 OF THE ACT BUT NOT U/S 153A OF THE ACT. WHEN ACCEPTED BY THE AO THEN THERE IS NO CONCEALMENT OF INCOME AND CONSEQUENTLY PENALTY U/S 271(1)(C ) OF THE ACT CANN OT BE IMPOSED. THE CONCEALMENT OF INCOME IS TO BE DETERMINED WITH REGARD TO THE RETUR N OF INCOME IN RESPONSE TO NOTICE U/S 153A OF THE ACT. THEREFORE, IN THE PRESENT CIRCUMSTANCES AND FACT S OF THE CASE ONCE THE RETURNED WEALTH IS ACCEPTED BY THE AO U/S 153A OF T HE ACT THEN THERE CANNOT BE A CASE OF CONCEALMENT OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME. IN THE CIRCUMSTANCES AND FACTS OF THE CASE THE DECISION IN THE CASE OF P REM ARORA VS DCIT (24 TAXMANN.COM 260) (DELHI TRIBUNAL) IS SQUARELY APPLICABLE IN THE PRES ENT CASE, SINCE IN THE PRESENT CASE THE ASSESSEE HAS DISCLOSED GOLD AND DIAMOND IN THE STAT EMENT RECORDED U/S 132(4) OF THE ACT DURING THE SEARCH OPERATION ITSELF, IN THE WEALTH T AX RETURN THE TRIBUNAL HAS APPROVED THE FINDINGS IN QUANTUM WITH REGARD TO THE GENUINENESS OF THE DECLARATION OF GOLD AND DIAMONDS. ACCORDINGLY THE ASSESSEE IS NOT LIABLE TO HAVE PENA LTY U/S 271(1)(C ) OF THE ACT. 6.3. WE FIND THAT THE ASSESSEE HAD MADE A DISCLOSU RE STATEMENT U/S 132(4) OF THE ACT AFTER THE SEARCH OFFERING UNDISCLOSED INCOME, EXPLAINING THE MANNER IN WHICH SUCH INCOME WAS DERIVED I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 9 OF 14 AND PAID TAXES THEREON TOGETHER WITH INTEREST. TH E ASSESSEE ALSO DULY OFFERED THE SAID UNDISCLOSED INCOME IN THE RETURNS FILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT AND ASSESSMENTS COMPLETED ACCORDINGLY. WE HOLD THAT T HE EXPRESSION TO BE FURNISHED IN CLAUSE 2 OF EXPLANATION 5 TO SECTION 271(1)(C ) OF THE ACT HAS TO BE UNDERSTOOD AS REQUIRED TO BE FURNISHED WHICH IN TURN HAS TO BE UNDERSTOOD AS A RETURN REQUIRED TO BE FURNISHED IN RESPONSE TO NOTICE U/S 153A OF THE ACT. IN THIS REGARD, WE PLA CE RELIANCE ON THE DECISION OF THE JURISDICTIONAL CALCUTTA HIGH COURT IN THE CASE OF CIT VS BRIJENDRA GUPTA IN ITA NO. 330 OF 2009 DATED 8.6.2015 , WHEREIN THE QUESTION RAISED BEFORE THEIR LORDSHIPS AND THEIR DECISION RENDERED THEREON IS AS UNDER:- THE FOLLOWING QUESTION OF LAW WAS SUGGESTED BY THE REVENUE:- WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LEARNED TRIBUNAL WAS JUSTIFIED IN LAW IN CONFIRMING THE ORDER OF THE CIT (A) IN DELETING THE PENALTY LEVIED UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT, 196 1 ON THE GROUND THAT THE ASSESSEE IS ENTITLED TO IMMUNITY FROM PENALTY ON ACCOUNT OF EXPLANATION 5 TO SECTION 271(1)(C ) WHEN THE ASSESSEES CASE DOES NOT COME UNDER THE PU RVIEW OF THE EXCEPTIONS PROVIDED THEREIN. HELD THAT : CLAUSE (A) OF EXPLANATION 5 TO SECTION 271(1)(C ) C ONTEMPLATES INCOME FOR ANY PREVIOUS YEAR FOR WHICH RETURNS HAS BEEN FURNISHED BUT THE INCOME SINCE DISCLOSED HAD NOT BEEN SHOWN. IT IS AXIOMATIC THAT IF SUCH INCOME HAD BEEN DISCLOSED IN THE RETURNS FILED UNDER SECTION 139, THE QUESTION OF UNDISCLOSED INCOME WOULD NOT HAVE ARISE N. WHEN THE RETURN HAD BEEN FILED BUT THE INCOME SINCE DISCOVERED WAS NOT DISCLOSED, THE QUESTION OF CONCEALMENT NATURALLY ARISES. THE LEGISLATURE, HOWEVER, MADE A CONSCIOUS DEPARTUR E BY CARVING OUT AN EXCEPTION PROVIDED THE CONDITIONS LAID DOWN IN CLAUSE (I) OR CLAUSE (I I) THEREOF HAVE BEEN COMPLIED WITH. WE ARE, IN THIS CASE, CONCERNED WITH CLAUSE (II). ONE OF THE CONDITIONS IS THAT THE ASSESSEE MAKES A STATEMENT UNDER SECTION 132(4) THAT THE ASS ETS UNEARTHED HAVE BEEN ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISLOSED SO FAR IN HI S RETURNS OF INCOME ALREADY FILED. THE DIFFICULTY ARISES BY THE USE OF THE EXPRESSION TO BE FURNISHED BEFORE THE EXPIRY OF TIME SPECIFIED IN SUB-SECTION (1) OF SECTION 139. A CO NFUSION IS LIKELY TO ARISE AS TO WHETHER THE DEPARTURE HAS BEEN SOUGHT TO BE MADE BY THE LEGISLA TURE ONLY FOR THOSE CASES WHERE THE STATEMENT AS REGARDS UNDISCLOSED INCOME WAS MADE PE RTAINING TO A PREVIOUS YEAR FOR WHICH TIME TO FILE RETURN UNDER SECTION 139 HAD NOT EXPIR ED. BUT THAT WAS NOT THE INTENTION BECAUSE THE EXPRESSION UNLESS APPEARS AFTER CLAUSES (A) A ND (B) OF EXPLANATION WHICH PROVIDES FOR IMPOSITION OF PENALTY. THEREFORE, UNLESS HAS TO APPLY TO THE PROVISION FOR IMPOSITION OF PENALTY. THEREFORE, THE AFORESAID EXPRESSION TO B E FURNISHED HAS TO BE INTERPRETED AS REQUIRED TO BE FURNISHED. ONLY IN THAT CASE THE SECTION WILL MAKE A MEANING OTHERWISE THE SECTION DOES NOT MAKE ANY MEANING. WE ARE SUPPORTED IN OUR VIEW BY THE JUDGEMENT OF TH E MADRAS HIGH COURT IN THE CASE OF CIT VS S.D.CHANDRU REPORTED IN (2004) 266 ITR 175 (MAD) WHEREIN A DIVISION BENCH OPINED THAT THE ADDITIONAL WORDS WHICH REFER TO THE TIME SPECI FIED IN SECTION 139(1) ARE ONLY A I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 10 OF 14 REITERATION OF THE LEGAL REQUIREMENT REGARDING THE TIME WITHIN WHICH RETURNS SHOULD NORMALLY BE FILED. IN THAT VIEW OF THE MATTER, THE QUESTION PROPOSED B Y REVENUE IS ANSWERED IN THE AFFIRMATIVE AND IN FAVOUR OF THE ASSESSEE. THE APPEAL IS THUS DISPOSED OF. 6.4. WE HOLD THAT THE IMMUNITY PROVIDED IN CLAUSE 2 OF EXPLANATION 5 TO SECTION 271(1)(C ) OF THE ACT IS AVAILABLE TO ALL THE ASSESSMENT YEARS PR IOR TO THE YEAR OF SEARCH IF THE CONDITIONS STIPULATED THEREON ARE SATISFIED. RELIANCE IN THI S REGARD IS PLACED ON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS RAM ESH CHAND GOYAL IN G.A.NO. 2347 OF 2010 IN ITAT NO. 181 OF 2010 DATED 11.8.2010 , WHEREIN THE QUESTION RAISED BEFORE THEIR LORDSHI PS AND DECISION RENDERED THEREON IS AS BELOW:- (A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED TRIBUNAL WAS JUSTIFIED IN LAW IN CANCELLING THE ORDER OF PENALTI ES FOR RS. 3,99,476/- , RS. 5,24,169/-, RS. 5,96,020/-, RS. 4,86,030/- AND RS. 25,12,525/- FOR THE ASSESSMENT YEARS 2002-03 , 2003-04, 2004-05, 2005-06 AND 2006-07 RESPECTIVELY ON THE GR OUND THAT THE EXPLANATION 5 TO SECTION 271(1)( C) PROTECTS THE ASSESSEE FROM PENALTY ON AD MITTED UNDISCLOSED INCOME UNDER SECTION 132(4) OF THE ACT WITHOUT APPRECIATING THAT THE ASS ESSEE HAS MADE THE DISCLOSURE IN THE ASSESSMENT YEARS 2006-07 AND THE IMMUNITY UNDER EXP LANATION 5 TO SECTION 271(1)( C) IS AVAILABLE FOR THE YEARS FOR WHICH THE RETURN IS YET TO BE FURNISHED BEFORE THE EXPIRY OF TIME LIMIT UNDER SECTION 139(1) OF THE ACT WHEREAS THE D UE DATE FOR FILING OF RETURN UNDER SECTION 139(1) OF THE ACT FOR THE ASSESSMENT YEARS 2001-02 TO 2005-06 HAD ALREADY EXPIRED AND RETURNS FILED PRIOR TO THE DATE OF SEARCH AND FOR T HE ASSESSMENT YEARS 2006-07 ALSO THE RETURN WAS NOT FILED ON THE DUE DATE. WE HAVE HEARD MR.SINHA EXTENSIVELY AND GONE THROUGH THE IMPUGNED JUDGEMENT AND ORDER OF THE LEARNED TRIBUNAL. THE LEARNED TRIBUNAL HAS RECORDED THE FACT THAT THE RECORD DOES NOT SHOW THAT THE ASSESSING OFFICER HAD DETECTED THE AD DITIONAL INCOME IN THE ASSESSMENT PROCEEDINGS. IT FURTHER RECORDED UPON PERUSAL OF T HE RECORDS THAT SMALL VARIATION IN INCOME WAS DUE TO BONA FIDE MISTAKES AND DIFFICULTIES IN W ORKING OUT THE UNDISCLOSED INCOME. IT IS FURTHER RECORDED THAT THE VOLUNTARY ACTION ON THE P ART OF THE ASSESSEE TO SETTLE THE TAX ISSUES FOR PEACE OF MIND APPEARS FROM THE CONDUCT OF THE A SSESSEE. WHILE RECORDING THE AFORESAID FACT, THE LEARNED TRIBUNAL ULTIMATELY RELIED ON A D ECISION OF THE TRIBUNAL RENDERED IN THE CASE OF ADDITIONAL CIT VS PREM CHAND GARG. MR. SINHA, H OWEVER, IS UNABLE TO SAY WHETHER THE EARLIER DECISION OF THE TRIBUNAL IN THE CASE OF PRE M CHAND GARG HAS BEEN CHALLENGED OR NOT. MOREOVER, THE LEARNED TRIBUNAL HAS ALSO RELIED ON A LARGE NUMBER OF DECISIONS OF THE VARIOUS COURT ON THE SAME POINT. HENCE WHEN THE POINT IS C OVERED, WE DO NOT FIND ANY MERIT IN THIS APPEAL FOR ADMISSION. ACCORDINGLY, THE SAME IS DIS MISSED. 6.5. WE WOULD LIKE TO PLACE RELIANCE ON THE FOLLOW ING DECISIONS ON THE IMPUGNED ISSUE BEFORE US : - A) JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS SHRI SAMIT ROY IN ITA 354 OF 2009 DATED 3.9.2015, WHEREIN THE QUESTIONS RAISED BEFORE THEIR LORDSHIPS AND THEIR DECISION RENDERED THEREON IS AS BELOW:- I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 11 OF 14 (A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE INCOME TAX APPELLATE TRIBUNAL ERRED IN LAW IN UPHOLDING THE ORDER OF COM MISSIONER OF INCOME TAX (APPEAL) HOLDING THEIR AMOUNTS DISCLOSING AFTER SEARCH, WHICH WAS NO T PREVIOUSLY OFFERED TO TAX IS NOT A CONCEALMENT ON THE PART OF THE RESPONDENT / ASSESSE E ? (B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE INCOME TAX APPELLATE TRIBUNAL ERRED IN LAW IN UPHOLDING THE ORDER OF COM MISSIONER OF INCOME TAX (APPEAL) HOLDING THE ASSESSING OFFICER WAS NOT JUSTIFIED IN LEVYING PENALTY UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEARS 2003- 04 TO 2005-06 ? SINCE BOTH THE QUESTIONS ARE COVERED BY THE JUDGEME NTS PASSED BY THIS COURT IN ITA 39 OF 2010 (COMMISSIONER OF INCOME TAX , CENTRAL I, KOLK ATA VS AMARDEEP SINGH DHANJAL) AND IN ITA 330 OF 2009 (COMMISSIONER OF INCOME TAX, CENTRA L III, KOLKATA VS BRIJENDRA GUPTA), BOTH THE QUESTIONS ARE ANSWERED IN THE NEGATIVE, AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. THE APPEAL IS DISMISSED. B) JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS TAP AN KUMAR GHOSH IN ITA 6 OF 2010 DATED 3.9.2015, WHEREIN THE QUESTIONS RAISED BEFORE THEIR LORDSHIPS AND THEIR DECISION RENDERED THEREON IS AS BELOW:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED TRIBUNAL HAS COMMITTED ERROR IN APPLYING THE PROVISIONS OF THE E XPLANATION 5 OF SECTION 271(1)(C ) OF THE INCOME TAX ACT, 1961 AND THEREBY COMMITTED ERROR IN LAW IN MODIFYING THE ORDER OF PENALTY OF RS. 4,17,926/- IN RELATION TO THE ASSESSMENT YE ARS 2003-04 AND 2005-06 SINCE WE FIND THAT THE ISSUE STANDS COVERED BY THE JUDGEMENTS DELIVERED IN ITA 39 OF 2010 (COMMISSIONER OF INCOME TAX , CENTRAL I, KOLKATA V S AMARDEEP SINGH DHANJAL) AND IN ITA 330 OF 2009 (COMMISSIONER OF INCOME TAX, CENTRAL I II, KOLKATA VS BRIJENDRA GUPTA), IN FAVOUR OF THE ASSESSEE, THE QUESTION IS ANSWERED IN THE NE GATIVE, AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. THE APPEAL IS DISMISSED. C) GUJARAT HIGH COURT IN THE CASE OF KIRIT DAHYABHAI P ATEL VS ACIT IN TAX APPEAL NO. 1181 OF 2010 WITH TAX APPEAL NO. 1182 TO 1185 OF 2010 DATED 3.12.2014 , WHEREIN THE QUESTION RAISED BEFORE THEIR LORDSHIPS AND THEIR DECISION RE NDERED THEREON IS AS BELOW:- WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE INCOME TAX APPELLATE TRIBUNAL WAS RIGHT IN LAW IN RESTORING THE PENALTY IMPOSED UNDER SECTION 271(1)(C ) OF THE ACT HOLDING THAT BENEFIT UNDER EXPLANATION 5 TO SECTION 271(1)( C) O F THE ACT WOULD BE AVAILABLE ONLY FOR PERIOD WHERE DUE DATE FOR FILING THE RETURN UNDER SECTION 139(1) OF THE ACT HAD NOT EXPIRED ? 13. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO CONSIDERING THE DECISIONS RELIED UPON BY LEARNED SENIOR ADVOCATE FOR THE APPE LLANT, WE ARE OF THE CONSIDERED OPINION THAT THE VIEW TAKEN BY THE TRIBUNAL IS ERRONEOUS. THE CIT(A) RIGHTLY HELD THAT IT IS NOT RELEVANT WHETHER ANY RETURN OF INCOME WAS FILED BY THE ASSES SEE PRIOR TO THE DATE OF SEARCH AND WHETHER ANY INCOME WAS UNDISCLOSED IN THAT RETURN O F INCOME. IN VIEW OF SPECIFIC PROVISION OF SECTION 153A OF THE I.T.ACT, THE RETURN OF INCOME F ILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE I.T.A ACT IS TO BE CONSIDERED AS RETURN FILED UNDER SECTION 139 OF THE ACT, AS THE I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 12 OF 14 ASSESSING OFFICER HAS MADE ASSESSMENT ON THE SAID R ETURN AND THEREFORE, THE RETURN IS TO BE CONSIDERED FOR THE PURPOSE OF PENALTY UNDER SECTION 271(1)(C ) OF THE I.T.ACT AND THE PENALTY IS TO BE LEVIED ON THE INCOME ASSESSED OVER AND ABO VE THE INCOME RETURNED UNDER SECTION 153A, IF ANY. 14. FURTHER, IN THE PRESENT CASE, IT APPEARS FROM T HE RECORD THAT THE ASSESSES HAD SATISFIED ALL THE CONDITIONS WHICH ARE REQUIRED FOR CLAIMING IMMU NITY FROM PAYMENT OF PENALTY UNDER SECTION 271(1)(C )OF THE ACT. THE PROVISION DOES N OT SPECIFY ANY TIME LIMIT DURING WHICH THE AFORESAID AMOUNT I.E THE AMOUNT OF PENALTY WITH INT EREST HAS TO BE PAID. ADMITTEDLY WHEN THE ASSESSEE HEREIN HAVE PAID THE ENTIRE AMOUNT WIT H INTEREST, THE ASSESSING OFFICER OUGHT TO HAVE GRANTED THEM IMMUNITY AVAILABLE UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT. 18. FOR THE FOREGOING REAONS, THE PRESENT APPEALS S TAND ALLOWED. THE ORDER OF THE TRIBUNAL IS QUASHED AND SET ASIDE. CONSEQUENTLY, THE ORDER OF THE CIT(A) IS RESTORED. THE QUESTION OF LAW INVOLVED IN THIS APPEALS IS ANSWERED IN FAVOUR OF T HE ASSESEE AND AGAINST THE REVENUE. D. GUJARAT HIGH COURT IN THE CASE OF CIT VS MAHEND RA C SHAH REPORTED IN (2008) 299 ITR 305 (GUJ) , IT WAS HELD THAT :- THE ASSESSEE HAVING MADE A DECLARATION U/S 132(4) A ND PAID TAXES THEREON HAD FULFILLED ALL THE CONDITIONS FOR AVAILING OF THE BENEFIT OF IMMUN ITY FROM LEVY OF PENALTY AS PROVIDED UNDER EXPLANATION 5 TO SECTION 271(1)( C) OF THE ACT. E. RAJASTHAN HIGH COURT IN THE CASE OF CIT VS KANH AIALAL REPORTED IN (2008) 299 ITR 19 (RAJ) , IT WAS HELD THAT :- WHERE THE ASSESSING OFFICER HAD FOUND THE INCOME TO RELATE TO DIFFERENT ASSESSMENT YEARS, IN DIFFERENT VOLUMES, AS CONTRA DISTINGUISHED TO THE O NE SUBMITTED BY THE ASSESSEE, AND HAD ACCORDINGLY MADE THE ASSESSMENTS, WHICH ASSESSMENTS HAD BECOME FINAL AND WERE NOT THE SUBJECT MATTER OF CHALLENGE, PENALTY U/S 271(1)(C ) COULD NOT BE IMPOSED BY VIRTUE OF EXPLANATION 5. F. MADRAS HIGH COURT IN THE CASE OF CIT VS S.D.CHA NDRU REPORTED IN (2004) 266 ITR 175 (MAD) , IT WAS HELD THAT :- PENALTY U/S 271(1)( C) WAS NOT LEVIABLE BY OPERATIO N OF EXPLANATION 5 IN A CASE WHERE A STATEMENT U/S 132(4) WAS FILED IN COURSE OF A SEARC H AND SEIZURE AND THEREFORE, ADMITTED A LARGER INCOME FOR THE EARLIER YEARS ON WHICH TAX WI TH INTEREST HAD BEEN PAID. G. RAJASTHAN HIGH COURT IN THE CASE OF ACIT VS GEB ILAL KANHAIALAL REPORTED IN (2004) 270 ITR 523 (RAJ) , IT WAS HELD THAT:- PENALTY U/S 271(1)(C ) WAS NOT LEVIABLE BY OPERATIO N OF EXPLANATION 5 IN A CASE WHERE A STATEMENT U/S 132(4) WAS FILED IN COURSE OF A SEARC H AND SEIZURE AND THEREAFTER THE ASSESSEE HAS DISCLOSED A PARTICULAR CONCEALED INCOME AND SUR RENDERED IT FOR TAX AND TAX HAD BEEN TOGETHER WITH INTEREST. I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 13 OF 14 6.6. IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTAN CES OF THE CASE AND IN VIEW OF THE VARIOUS JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE INCLUDI NG THAT OF THE JURISDICTIONAL HIGH COURT AND OTHER HIGH COURTS, WE ARE OF THE CONSIDERED OPI NION THAT : - THE ASSESSEE HAS CUMULATIVELY SATISFIED ALL THE C ONDITIONS STIPULATED IN CLAUSE 2 OF EXPLANATION 5 TO SECTION 271(1)( C) OF THE ACT AND HENCE ENTITLED FOR IMMUNITY FROM LEVY OF PENALTY FOR ALL THE ASSESSMENT YEARS UNDER APPEAL; - THE ASSESSEE HAD MADE VOLUNTARY DISCLOSURE OF RS. 25,00,000/- FOR THE ASST YEAR 2005-06 DURING THE COURSE OF SEARCH ASSESSMENT PROC EEDINGS AFTER FILING THE RETURN U/S 153A OF THE ACT BUT BEFORE ANY DETECTION BY THE DEPARTMENT; - THE EXPRESSION TO BE FURNISHED MENTIONED IN CLA USE 2 OF EXPLANATION 5 TO SECTION 271(1)(C ) HAS TO BE CONSTRUED AS REQUIRED TO BE F URNISHED U/S 153A OF THE ACT ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE FOR ALL THE ASSESSMENT YEARS ARE DISMISSED. 8. AS THE ISSUE INVOLVED IN THE PRESENT CASE IS SIM ILAR TO THE ONE INVOLVED IN THE CASE OF DEEPAK CHOUDHURY (SUPRA), W E FOLLOW THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL RENDERED I N THE SAID CASE AND UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) A LLOWING IMMUNITY TO THE ASSESSEE AS PER CLAUSE 2 OF EXPLANATION 5 TO SE CTION 271(1)(C) EVEN IN RESPECT OF THE ADDITIONAL INCOME OF RS.52,78,912/- OFFERED FOR A.Y. 2005- 06 DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 9. DURING THE COURSE OF HEARING BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO RAISED A CONTENTION RELYING ON TH E DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SU VAPRASANNA BHATTACHARYA VS.- ACIT RENDERED VIDE ITS ORDER DAT ED 06.11.2015 IN ITA NO. 1303/KOL/2010 THAT THE SATISFACTION REQUIRED FO R INITIATING THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) HAVING NOT BEEN RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER NOR T HE SAME BEING DISCERNABLE FROM THE ASSESSMENT ORDERS PASSED BY HI M, INITIATION OF PENALTY PROCEEDINGS ITSELF WAS BAD IN LAW AND THE P ENALTIES IMPOSED IN PURSUANCE THEREOF ARE LIABLE TO BE CANCELLED. IN T HIS REGARD, THE LD. D.R. I.T.A. NO. 639, 640, 641, 642, 643 & 644/KOL./2009 ASSESSMENT YEARS: 2000-2001 TO 2005-2006 PAGE 14 OF 14 HAS NOT BEEN ABLE TO POINT OUT ANY OBSERVATION ON FINDING RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDERS FROM WHICH THE SATISFACTION AS REQUIRED TO BE ARRIVED AT BY THE AS SESSING OFFICER TO INITIATE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C ) IS DISCERNABLE. WE, THEREFORE, HOLD THAT THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SUVAPRASANNA BHATTACHARYA (SUPRA) IS SQUARELY APPLICABLE IN THE PRESENT CASE AND THE PENALTIES IMPOSED BY TH E ASSESSING OFFICER IN THE ABSENCE OF REQUISITE SATISFACTION RECORDED BY H IM IN THE ASSESSMENT ORDERS ARE LIABLE TO BE CANCELLED ON THIS GROUND AL SO. WE ACCORDINGLY UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) C ANCELLING THE PENALTIES IMPOSED BY THE ASSESSING OFFICER UNDER SE CTION 271(1)(C) FOR A.Y. 2003-04, 2004-05 & 2005-06 AND DISMISS THE APP EALS OF THE REVENUE FOR THE SAID YEARS. 10. IN THE RESULT, ALL THE SIX APPEALS OF THE REVEN UE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 24, 2016. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 24 TH DAY OF FEBRUARY, 2016 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-XVI, KOLKATA, PODDAR COURT, 18, RABINDRA SARANI, KOLKATA-700 001 (2) SHRI SATYAM ROY CHOWDHURY, FE-401, SECTOR-III, SALT LAKE CITY, KOLKATA-700 064 (3) COMMISSIONER OF INCOME-TAX (APPEALS), CENTRAL- II, KOLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.