M/s Shourya Tower Pvt Ltd, Delhi V. DCIT, New Delhi

ITA 701/DEL/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0072 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 11-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 26-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SRUJANI MOHANTY
• Assessee Lawyers: MANU K GIRI S
• Keywords: Bogus Share capital; Gift; Income from undisclosed sources; Search and seizure; Retraction; Revised return
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER I.T.A. NO.701/D/09 ASSESSMENT YEAR : 2005-06 M/S SHOURYA TOWERS (P) LTD., VS. D.C.I.T., (PRESENTLY KNOWN AS NITISHREE CENTRAL CIRCLE-21, INFRASTRUCTURE LTD.), 78-B, SECTOR NEW DELHI D-2, GROUP II, KONDLI GUHAROLI, MAYUR VIHAR, PHASE-III, DELHI PAN NO.AAHCS 9332 F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANOOP SHARMA & MANU K. GIRI , ADVOCATES RESPONDENT BY : SMT.SRUJANI MOHANTY, SR. DR ORDER PER K.G. BANSAL: AM: THE ONLY ISSUE INVOLVED IN THIS CASE IS-WHETHER, THE LEARNED CIT(A) WAS JUSTIFIED IN CONFIRMING THE PENALTY OF `44,27,692/-, L EVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 (THE ACT). TWO GROUNDS HAVE BEEN TAKEN IN THIS REGARD. GROUND NO.1 IS THAT THE CASE OF THE ASSESS EE IS COVERED UNDER THE PROVISIONS CONTAINED IN CLAUSE (A) READ WITH SUB-CLAUSE 1(I) OF THE EXPLANATION 5 TO SECTION 271(1)(C). GROUND NO.2 IS THAT THE PENALTY HAS BEEN CONFIRMED ON SUSPICION AND SURMISES COUPLED WITH IMAGINATIVE INTERPRETATION OF THE FACTS AGAINST THE LEGAL PROVISIONS IN SPITE OF THE FACTS THAT A SPECIFIC DECLA RATION WAS MADE U/S 132(4), WHICH WAS ACTED UPON IN A TRANSPARENT MANNER AND IT WA S MADE TO BUY PEACE UNDER THE IMPRESSION THAT PENALTY SHALL NOT BE LEVIED. 701/D/2009-ST 2 1.2 BEFORE PROCEEDING WITH THE APPEAL, IT MAY BE MENTIONED T HAT IT WAS DISMISSED ON 08.10.2009 BY THE TRIBUNAL FOR NON-PROSEC UTION. HOWEVER, THE ORDER WAS RECALLED ON 16.04.2010 ON AN APPLICATION MADE BY T HE ASSESSEE, WITH A VIEW TO DECIDE THE APPEAL ON MERITS. 2. THE FACTS OF THE CASE ARE THAT THE RETURN WAS FILED ON 31.10.2005 DECLARING TOTAL LOSS OF `19,08,840/-. SEARCH AND SEIZURE OPERATI ONS WERE CONDUCTED IN NITISHREE GROUP OF CASES AND SURVEY WAS ALSO CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE. IN THE COURSE OF SEARCH, STATEMENT OF SHRI ANIL JAIN WAS RECORDED ON OATH U/S 132(4) OF THE ACT ON 17.02.2006. IT WAS IN TER ALIA DEPOSED THAT UNACCOUNTED INCOME OF VARIOUS YEARS HAS BEEN INVESTED IN SHARE CAPITAL OF SOME COMPANIES IN BENAMI NAMES. CASH HAS ALSO BEEN INVESTED IN THE REAL ESTATE BUSINESS AND JEWELLERY. SHRI KASHINATH SHUKLA, DIRECTOR O F THE ASSESSEE COMPANY, HAS ALSO INTRODUCED UNACCOUNTED MONEY IN BENAMI NAME AS SHARE CAPITAL. THE DETAILS OF SUCH INVESTMENTS WERE NOT KNOWN TO HIM ON TH E DATE OF SEARCH. HOWEVER, THE TOTAL AMOUNT WAS QUANTIFIED AT `15 CRORES. THE STA TEMENT WAS FOLLOWED UP AND DETAILS OF BENAMI INVESTMENTS WERE FURNISHED. THESE ARE AVA ILABLE ON PAGE NOS.15 & 16 OF THE PAPER BOOK. ACCORDING TO THE STATEMENT, THE BENAMI SHARE INVESTMENT OF THE ASSESSEE COMPANY FOR THE TWO YEARS, I.E., ASSESSMENT YEARS 2005-06 AND 2006-07, HAVE BEEN SHOWN AT `121 LAC AND `521.95 LAC RESPECTIVELY. THE TOTAL UNACCOUNTED INCOME FOR SEVEN ASSESSES OF THE GROUP HAS BEEN SHOWN AS `1522.98 LACS. 2.1 SUBSEQUENT TO SEARCHES, A NOTICE U/S 153A OF THE ACT W AS ISSUED TO THE ASSESSEE. IN RESPONSE, IT WAS INFORMED THAT THE RETURN FIL ED ON 14.08.2007 EARLIER U/S 139(1) MAY BE TREATED AS RETURN U/S 153A. FROM THI S, IT IS OBVIOUS THAT THE RETURN U/S 153A DID NOT TAKE INTO ACCOUNT THE SURRENDER MADE BY THE ASSESSEE AS THE INCOME DECLARED U/S 153A WAS LOSS OF `19,08,840/-. AS SESSMENT U/S 153A READ WITH SECTION 143(3) WAS COMPLETED ON 31.12.2007, IN WH ICH THE SURRENDERED AMOUNT 701/D/2009-ST 3 OF `121 LAC WAS DEDUCTED FROM THE LOSS SHOWN IN THE RETU RN. THUS, THE TOTAL INCOME WAS COMPUTED AT `1,01,91,160/-. PENALTY PROCEEDINGS W ERE ALSO INITIATED U/S 271(1)(C) OF THE ACT. 2.2 THESE PROCEEDINGS WERE COMPLETED ON 30.06.2008 BY LEVYIN G MINIMUM PENALTY OF `44,27,692/-. THE REASONS MENTIONED BY THE AS SESSING OFFICER FOR THE LEVY CAN BE SUMMARIZED AS UNDER:- THE NOTICE U/S 153A WAS ISSUED ON 20.07.2006 UNDER WHI CH THE RETURN WAS TO BE FILED WITHIN 15 DAYS OF THE SERVICE THEREOF, HOWEVER, THE ASSESSEE DID NOT RESPOND TO THIS NOTICE WITHIN THE REQUISITE TIME BUT RESPONDED ON 14.07.2007 BY STATING THAT THE ORIGINAL RETURN MAY BE TAKEN AS RETURN U/S 153A. THE BAR ON LEVY OF PENALTY IS LIFTED UNDER THE EXP LANATION 5 ONLY IF THE CONCEALED INCOME PERTAINED TO ASSESSMENT YEAR WHOSE RETURN HAS ALREADY BECOME DUE BEFORE THE DATE OF SEARCH OR IF THE RETURN IS FIL ED, THE INCOME IS NOT SHOWN IN THAT YEAR. THIS POINT WAS FURTHER EXPEN DED BY STATING THAT THE BAR IS LIFTED IN A CASE WHERE (A) THE PREVIOUS YEAR HAS ENDED AND THE INCOME IS RECORDED IN TH E BOOKS OF ACCOUNT BEFORE SEARCH ACTION, OR (B) THE PREVIOUS YEAR IS YET TO END BUT THE INCOME IS SHOWN TO THE CIT/CCIT BEFORE THE SEARCH, OR (C) RETURN IS YET TO BECOME DUE BUT THE ASSESSEE SPECIFIES THE MOD E AND MANNER IN WHICH THE INCOME IS EARNED AND PAYS TAXES A ND INTEREST THEREON. 2.3 ON THE FACTS, THE FINDINGS OF THE ASSESSING OFFICER IS THAT NEITHER IN THE ORIGINAL RETURN NOR IN THE LETTER IN RESPONSE TO NOTICE U /S 153A, THE INCOME HAS BEEN DECLARED. SUCH A CONDUCT WAS OBVIOUSLY TO CONCEAL EVEN THE INCOME SURRENDERED U/S 132(4) FROM THE PURVIEW OF TAXATION. IT IS ONLY IN THE COURSE OF PROCEEDINGS U/S 701/D/2009-ST 4 153A ON 14.02.2007 THAT THE ASSESSEE HAS FILED A REVISED COMPUTATION OF INCOME IN WHICH THE SURRENDERED INCOME HAS BEEN TAKEN INTO ACCOUNT. SUCH COMPUTATION CANNOT BE TAKEN TO BE REVISED RETURN. THEREFORE, THE ASSESS EE WAS TAKEN CHANCE PRIOR TO FILING THE STATEMENT AND IF SPECIFIC QUERY HAD NOT BEEN MADE, EVEN THE SURRENDERED INCOME WOULD HAVE ESCAPED THE INCOME. 3. AGGRIEVED BY THIS ORDER, THE ASSESSEE MOVED AN APPEAL BEF ORE THE LEARNED CIT(A). AFTER CONSIDERING THE FACTS OF THE CASE AND THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE HIM, THE LEARNED CIT(A) CONFIRMED THE LEVY OF PENALTY. HIS FINDINGS ARE THAT THE ASSESSEE HAD ALREADY FILED RETURN DECLARING LOS S OF `19,08,840/-. THE CONCEALED INCOME OF `121.00 LAC WOULD NOT HAVE COME T O THE NOTICE OF THE REVENUE BUT FOR THE SEARCHES CONDUCTED IN THE GROUP CASES. IN TH ESE SEARCHES, INCRIMINATING MATERIAL REGARDING BENAMI INVESTMENT IN SHARE CAPITAL C AME IN POSSESSION OF THE REVENUE. THEREAFTER, THERE WAS NO OPTION WITH THE ASSESSEE BUT TO DECLARE ADDITIONAL INCOME AND PAY TAXES. THEREFORE, THE FACTUM OF CONCEALMENT WAS THERE IN THE ORIGINAL RETURN FILED BY THE ASSESSEE. THE ASSESSMENT MADE BY THE ASSESSING OFFICER HAS BECOME FINAL. THE CONTENTION THAT THE INCO ME HAD BEEN SHOWN IN THE BOOKS OF ACCOUNT BEFORE THE SEARCH PROCEEDINGS IS WITHOUT FACTUAL BASIS. THE INCOME HAS ALSO NOT BEEN DISCLOSED TO THE CIT/CCIT BEFORE SEARCH. IT IS HIS VIEW THAT THE BASIC FEATURE OF THE EXPLANATION IS TO EXTENT I MMUNITY FROM LEVY OF PENALTY IF THE CONCEALED INCOME IS ASSESSABLE FOR THE YEAR IN WHICH S EARCH TOOK PLACE OR THE YEAR FOR WHICH DUE DATE FOR FILING THE RETURN U/S 139(1) HAS NOT EXPIRED. SUCH IS NOT THE CASE HERE. THUS, THE LEVY OF PENALTY HAS BEEN UPHELD. 4. BEFORE US, THE LEARNED COUNSEL FURNISHED A BRIEF SUMMARY OF FACTS THAT ORIGINAL RETURN OF INCOME WAS FILED IN OCTOBER, 2005. SEARCH AND SEIZURE OPERATIONS WERE CONDUCTED ON 17.02.2006. THE SEARCH YIELDED INCRIMINATI NG DOCUMENTS SHOWING BENAMI INVESTMENTS FOR ASSESSMENT YEARS 2005-06 AND 2006- 07. ASSESSMENTS FOR BOTH THE YEARS WERE COMPLETED ON THE BASIS OF THE AMOUNTS S URRENDERED U/S 132(4). 701/D/2009-ST 5 PENALTIES WERE LEVIED FOR BOTH THE YEARS. THE PENALTY FOR A SSESSMENT YEAR 2006-07 HAS ALREADY BEEN DELETED BY THE TRIBUNAL IN I.T.A. NO.1280 /D/09 DATED 30.09.2010. THE ASSESSEE HAS PLACED HEAVY RELIANCE ON THI S ORDER IN SUPPORT OF DELETION OF THE PENALTY FOR ASSESSMENT YEAR 2005-06 ALSO. IN THE ALTERNATIVE, IT IS ARGUED THAT THE PROVISION CONTAINED IN SUB-CLAUSE (2) OF EXPLANATION 5 COMES TO THE RESCUE OF THE ASSESSEE FOR THE REASON THAT THE ASSESSEE HAS D ECLARED THE UNDISCLOSED INCOME IN THE STATEMENT AND PAID TAX ALONG WITH INTEREST . 4.1 IN REPLY, THE LEARNED DR SUBMITTED THAT THE PROVISION CONTAINED IN SUB-CLAUSE (1) OF EXPLANATION 5 IS NOT APPLICABLE TO THE FACTS O F THE CASE. SUB-CLAUSE (2) OF THE EXPLANATION IS APPLICABLE ONLY WHERE THE RETURN HAS BEEN A CTUALLY FURNISHED BEFORE EXPIRY OF TIME SPECIFIED IN SECTION 139(1), WHICH IS NOT THE CASE HERE. THIS PROVISION HAS ALSO BEEN AMENDED TO REMOVE THE REFERENCES TO CLAUSES (A) A ND (B) OF THE EXPLANATION BY DIRECT TAX LAWS (AMENDMENT) ACT, 1989, W.E.F. 01.04.1989. THEREFORE, THE CASES RELIED UPON BY THE ASSESSEE IN THIS CONNEC TION DO NOT REPRESENT THE GOOD LAW NOW. ACCORDINGLY IT IS AGITATED THAT TH E PENALTY LEVIED AND CONFIRMED BY THE LOWER AUTHORITIES IS REQUIRED TO BE SUSTAINED ON FA CTS AND IN LAW. 5. WE HAVE CONSIDERED THE FACTS OF THE CASE AND THE SUBMISS IONS MADE BEFORE US. BEFORE PROCEEDING FURTHER, THE IMPORTANT EVENTS IN CHR ONOLOGICAL ORDER ARE TABULATED AS UNDER:- S.NO. DATE REMARK . 1. 31.10.2005 ORIGINAL RETURN FILED DISCLOSING LOSS OF `19,08,840/-. 2. 17/18.02.2006 CONDUCTING OF SEARCHES/SURVEYS. 3. 18.02.2006 `121.00 LAC SURRENDERED FOR TAXAT ION IN RESPECT OF BENAMI INVESTMENTS. 4. - DATE OF NOTICE U/S 153A NOT ASCERTAIN- ABLE FROM THE RECORD OR SUBMISSIONS. 701/D/2009-ST 6 5. 14.08.2007 DEEMED DATE OF FILING RETURN U/S 153A AS PER ASSESSEES LETTER REITERATING ORIGINAL RETURN OF LOSS OF `19,08,840/-. 6. 14.12.2007 REVISED STATEMENT FILED SHOWING TOTAL INC OME OF `1,01,91,165/- 7. 31.12.2007 ASSESSMENT U/S 153A AT TOTAL INCOME OF `1,01,91,160/-. 5.1 AT THIS POINT OF TIME WE MAY ALSO REPRODUCE THE RELEVA NT PORTION OF STATEMENT REGARDING THE SURRENDER FURNISHED BY THE ASSESSEE U/S 132(4) :- DURING THE COURSE OF SEARCH IN YOUR PREMISES INCRIMINAT ING DOCUMENTS HAVE BEEN INVENTERIED AND ARE BEING SHOWN TO YOU. PLEASE EXPL AIN THE SAME? I ADMIT THAT I HAVE INTRODUCED UNACCOUNTED INCOME IN V ARIOUS YEARS THROUGH SHARE CAPITAL IN BENAMI NAME IN SOME OF THE COMP ANIES IN WHICH I AM, MY FAMILY MEMBERS ARE DIRECTORS AND/OR SHA REHOLDERS. INSTANTLY, I DO NOT REMEMBER EXACT DETAILS. SIMILARLY, I HAVE INTRODUCED CASH IN MY BUSINESS OF REAL ESTATE IN CASH I N VARIOUS BENAMI NAMES, THE DETAILS OF WHICH ARE NOT REALLY AVAILA BLE WITH ME. ALSO SOME UNACCOUNTED JEWELLERY WAS ALSO FOUND FROM MY RESIDENCE DURING THE COURSE OF SEARCH AND IN LOCKER NO.68 AT OBC, SECTOR-18, NOIDA, UP. SOME VALUABLE ITEMS IN THE FORM OF GOLD JEWEL LERY AND PRECIOUS STONES ARE LYING. THE INDICATION TO THIS EFFECT I HAVE ALREADY GIVEN TO THE AUTHORIZED OFFICER DURING THE COURSE OF MY S TATEMENT U/S 132(4) AT MY RESIDENCE. I WOULD ALSO LIKE TO BRING ON RECORD THAT MY PARTNER IN REAL ESTATE BUSINESS SHRI KASHI NATH SUKHLA R/ O C-35, SECTOR-30, NOIDA, UP WHO IS ALSO A DIRECTOR IN M/S SHOU RIYA TOWERS (P) LTD. HAS ALSO INTRODUCED BOGUS SHARE CAPITAL IN V ARIOUS COMPANIES IN BENAMI NAME FOR MAKING INVESTMENT IN REAL ESTATE BUSINES S. READILY I DO NOT HAVE THEIR EXACT QUANTUM, AND THE ENTIT IES. I UNDERTAKE TO FURNISH THE EXACT DETAIL OF THIS UNACCOUNT ED INCOME IN MY HANDS, MY COMPANION HANDS AND ALSO IN THE HAND OF MY PARTNERS DURING THE NEXT WEEK. AS A TOKEN OF MY ADMITTANCE/DISCLO SURES ON MY COMPANIES BEHALF, I AM TENDERING BEFORE YOU CHEQUE NO.1 36160 FOR ` ONE CRORE. IT IS ALSO ASSURED THAT I WILL PAY THE INCOME TAX AND 701/D/2009-ST 7 APPLICABLE SURCHARGE ETC. ON TOTAL SOME OF `15 CRORES I N MY HAND AND IN THE HANDS OF SUCH OTHER ENTITIES THROUGH WHICH UNACC OUNTED INCOME TO THE EXTENT OF `15 CRORES HAS BEEN INTRODUCED. I FURTHER UNDERTAKE THAT IN CASE THE QUANTUM OF UNACCOUNTED INCOME DETECTED C ONSEQUENT UPON SEARCH PROCEEDINGS. I SHALL BE LIABLE TO ALL SUBSEQ UENT PENAL ACTIONS. THIS UNCONDITIONAL DISCLOSURE OF `15 CROR ES IS BEING MADE UNDER THE IMPRESSION THAT THE INCOME-TAX DEPTT. WILL NOT RESORT TO PENALTY/PROSECUTION. 5,2 WE MAY ALSO REPRODUCE THE PROVISION CONTAINED IN EXP LANATION 5 OF SECTION 271(1)(C):- EXPLANATION 5.- WHERE IN THE COURSE OF A SEARCH INITIAT ED U/S 132 BEFORE THE 1 ST DAY OF JUNE, 2007, THE ASSESSEE IS FOUND TO BE THE OWNER OF 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 UTILIZING (WHOLLY OR IN PART) HIS INCOME;- A) FOR ANY PREVIOUS YEAR WHICH HAS ENDED BEFORE THE DATE OF TH E SEARCH, BUT THE RETURN OF INCOME FOR SUCH YEAR HAS NOT B EEN FURNISHED BEFORE THE SAID DATE OR, WHERE SUCH RETURN HAS BEEN FURNISHED BEFORE THE SAID DATE, SUCH INCOME HAS NOT BEEN DECLARED THEREIN; OR B) FOR ANY PREVIOUS YEAR WHICH IS TO END ON OR AFTER THE DA TE OF THE SEARCH, THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLA RED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE O F THE SEARCH, HE SHALL, FOR THE PURPOSES OF IMPOSITION OF A PENALTY UNDER CLAUSE (C) OF SUB-SECTION (1) OF THIS SECTION, BE DEEMED T O HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED IN ACCURATE PARTICULARS OF SUCH INCOME, (UNLESS,- 1) SUCH INCOME IS, OR THE TRANSACTIONS RESULTING IN SUCH INCOME ARE RECORDED,- I) IN A CASE FALLING UNDER CLAUSE (A), BEFORE THE DATE OF THE SEARCH AND II) IN A CASE FALLING UNDER CLAUSE (B), ON OR BEFORE SUCH DATE, IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME OR SUCH INCOME IS 701/D/2009-ST 8 OTHERWISE DISCLOSED TO THE (CHIEF COMMISSIONER OR COMMISSIONER) BEFORE THE SAID DATE; OR 2) HE, IN THE COURSE OF THE SEARCH, MAKES A STATEMENT UNDER SUB-SECTION (4) OF SECTION 132 THAT ANY MONEY, BULLIO N, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND IN HIS INCOME WHICH HAS NOT BEEN DISCLOSED SO FAR IN HIS RETURN OF INCOME TO BE FURNISHED BEFORE THE EXPIRY OF TIME SPECIFIED IN SUB-SECTION (1) OF SECTION 139, AND ALSO SPECIFIES IN THE STATEMENT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF SUCH INCOME). 6. THE QUESTION BEFORE US IS WHETHER, THE LEARNED CIT(A) W AS RIGHT IN CONFIRMING THE LEVY OF THE PENALTY? THE CASE OF BOTH THE PARTIES HINGES CRUCIALLY ON INTERPRETATION OF THE PROVISIONS CONTAINED IN EXPLANATI ON 5. 6.1 THIS EXPLANATION COMES INTO OPERATION WHERE IN THE C OURSE OF SEARCH INITIATED BEFORE 01.06.2007, THE ASSESSEE IS FOUND TO BE OWNER OF ANY MONEY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING. IN THIS CA SE CHITS WERE FOUND SHOWING INVESTMENT IN BENAMI NAMES. ALTHOUGH, NO DISPUTE HAS B EEN RAISED REGARDING FULFILLMENT OF AFORESAID CONDITION, IT APPEARS THAT TH E CASE OF BOTH THE PARTIES IS THAT THE CHITS REPRESENT THINGS OR AT LEAST TITLE TO THE THING S, BEING INVESTMENTS. IN ABSENCE OF ANY DISPUTE IN THE MATTER, IT IS HELD THAT THIS COND ITION STANDS SPECIFIED. 6.2 THE SECOND CONDITION IS THAT ASSESSEE MUST CLAIM THA T THE ASSETS, BEING INVESTMENT IN THIS CASE, HAVE BEEN ACQUIRED WHOLLY OR PART LY BY UTILIZING HIS INCOME:- A) FOR THE PREVIOUS YEAR WHICH HAS ENDED BEFORE THE DATE OF SEAR CH, BUT THE RETURN OF INCOME HAS NOT BEEN FURNISHED BEFORE THE SAID DAT E, OR WHICH THE RETURN HAS BEEN FURNISHED SUCH INCOME HAS NOT BEEN DECLARED THEREIN; OR B) FOR ANY PREVIOUS YEAR WHICH IS TO END ON OR AFTER THE D ATE OF SEARCH. OBVIOUSLY, THE PREVIOUS YEAR ENDED ON 31.03.2005, I.E., B EFORE THE DATE OF SEARCH ON 17/18.02.2006, THEREFORE, CLAUSE (A) APPLIES TO THE FACTS OF THE CASE AND 701/D/2009-ST 9 CLAUSE (B) DOES NOT APPLY TO THE FACTS OF THE CASE. THE ASSESSEE HAD FURNISHED THE RETURN OF INCOME ON 31.10.2005, I.E., BEFORE THE DATE OF SEARCH ON 17.02.2006. IT IS ALSO A FACT THAT IN THIS RETURN THE INCOME FROM WHI CH INVESTMENT WAS MADE HAD NOT BEEN DECLARED. THE PROVISION FIRST RAISES A PRESUMPTION T HAT THE INCOME HAS BEEN CONCEALED. THEREAFTER, IT LIFTS THE PRESUMPTION IN A CA SE WHERE THE TRANSACTIONS RESULTING IN THE INCOME ARE RECORDED IN THE BOOKS OF ACC OUNT, AS PROVIDED IN SUB CLAUSE (1). IT IS CLEAR THAT THE TRANSACTIONS RELATING TO EARNING OF THE INCOME HAD NOT BEEN RECORDED IN THE BOOKS OF ACCOUNT REGULARLY MAINTAINED BY THE ASSESSEE OR ANY OTHER BOOKS OF ACCOUNT MAINTAINED FOR THE BUSINESS FROM WHICH INCOME AROSE BEFORE THE DATE OF SEARCH. THUS, SUB CLAUSE (1) IS NOT APPLIC ABLE TO THE FACTS OF THIS CASE AS THE TRANSACTIONS WERE FOUND TO BE RECORDED IN THE CHITS AN D NOT IN THE BOOKS OF ACCOUNT. 6.3 COMING TO SUB CLAUSE (2), THE CONDITION IS THAT T HE ASSESSEE MAKES A STATEMENT THAT THE VALUABLE ARTICLE OR THING FOUND IN HI S POSSESSION OR CONTROL HAS BEEN ACQUIRED OUT OF HIS INCOME, WHICH HAS NOT BEEN HITHER TO DISCLOSE IN HIS RETURN OF INCOME TO BE FURNISHED BEFORE THE EXPIRY OF TIME SPECIFI ED IN SUB SECTION (1) OF SECTION 139. THE CASE OF THE LEARNED COUNSEL IS THAT THE A SSESSEE SATISFIES THIS CONDITION IN VIEW OF THE DECISION OF HONBLE MADRAS HIG H COURT IN THE CASE OF CIT VS. S.D.V. CHANDRU (2004) 266 ITR 175. THE DECISION IN THIS CASE IS THAT THE WORDS HAS ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCLOSED IN HIS RETURN OF INCOME TO BE FURNISHED BEFORE THE EXPIRY OF TIME SPECIFIED IN SUB SECTION (1) OF SECTION 139, ARE NOT TO BE READ AS REFERRING TO INCOME SO FAR NOT DISCLOSED IN RESPECT OF THE PREVIOUS YEAR WHICH IS TO END AFTER THE DAT E OF THE SEARCH. THE WORDS USED ARE INCOME WHICH HAS NOT BEEN SO FAR DISCLOSED IN H IS RETURN OF INCOME. THE ADDITIONAL WORDS REFERRING TO THE TIME SPECIFIED IN SECTI ON 139(1) ARE ONLY A REITERATION OF THE LEGAL REQUIREMENT REGARDING THE TIME WITH IN WHICH RETURNS SHOULD NORMALLY BE FILED. IT HAS BEEN FURTHER DECIDED THAT IF TH E ASSESSEE ADMITS THE RECEIPT 701/D/2009-ST 10 OF UNDISCLOSED INCOME FOR THOSE YEARS AND ALSO SPECIFIES THE MANNER IN WHICH SUCH INCOME HAD BEEN DERIVED, AND THEREAFTER PAYS THE TAX ON THE U NDISCLOSED INCOME WITH INTEREST, SUCH UN-DISCLOSED INCOME WOULD GET IMMUNI ZED FROM THE LEVY OF THE PENALTY. THE RELEVANT PORTION OF THE JUDGMENT IS REPRODUC ED BELOW:- .. HAS BEEN ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCLOSED IN HIS RETURN OF INCOME TO BE FURNISHED BEFORE T HE EXPIRY OF TIME SPECIFIED IN SUB-SECTION (1) OF SECTION 139, ARE NO T TO BE READ AS REFERRING TO INCOME SO FAR NOT DISCLOSED IN RESPECT OF TH E PREVIOUS YEAR WHICH IS TO END AFTER THE DATE OF THE SEARCH. THE WORDS USED ARE INCOME WHICH HAS NOT BEEN SO FAR DISCLOSED IN HIS RETUR N OF INCOME. THE ADDITIONAL WORDS WHICH REFER TO THE TIME SPECIFIED IN SECTION 139(1) ARE ONLY A REITERATION OF THE LEGAL REQUIREMENT REGARDING TH E TIME WITHIN WHICH RETURNS SHOULD NORMALLY BE FILED. IN CASES WHERE THE ASSESSEE HAD NOT DISCLOSED HIS INCOME IN THE RETURNS FILED FOR THE PREVIOUS YEAR WHICH HAVE ENDED PRIOR TO THE DATE OF THE SEARCH AND, IN THE STATEMENT GIVEN U/S 132(4), THE ASSESSEE ADMITS THE RECEIPT OF UNDISCLOSED INCOME FOR THOSE YEARS A ND ALSO SPECIFIES THE MANNER IN WHICH SUCH INCOME HAD BEEN DERIVED, AND THEREAFTER PAYS THE TAX ON THAT UNDISCLOSED INCOME WITH I NTEREST, SUCH UNDISCLOSED INCOME WOULD GET IMMUNIZED FROM THE LEVY OF P ENALTY. 6.4 THE ISSUE HAS ALSO BEEN DECIDED BY HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. KANHIYA LAL AND ANOTHER (2008) 299 IT R 19. THE DECISION IS MORE OR LESS ON THE SAME LINES AS THE DECISION IN THE CASE OF S.D.V . CHANDRU (SUPRA). THE RELEVANT PORTIONS OF THE JUDGMENT ARE REPRODUCED BELOW:- IF CONSIDERED FROM THAT STAND POINT, THE ASSESSEE MAY HAVE DERIVED INCOME IN SEQUENCE OF YEARS, WHICH MIGHT BE VOLUMINOUS IN COME, AND BE TAXABLE, AND HE MAY NOT HAVE FURNISHED RETURNS AT ALL, THEN A SEARCH MAY BE UNDERTAKEN U/S 132, AND IN THAT EVENT, MAY BE FOR PURCHASING PEACE, OR MAY BE DUE TO GOOD SENSE PREVAILING O N THE ASSESSEE, HE MAY STRAIGHTAWAY MAKE A DISCLOSURE OF ALL EXI STING ASSETS U/S 132(4) DISCLOSING TO BE IN POSSESSION OF TH E ASSETS AS FOUND, WHICH BY VIRTUE OF THE COVERING LANGUAGE OF EXPLANATION 5 WOULD AMOUNT TO BE CONCEALMENT OF THE INCOME FOR THE PURPOSE OF SECTION 271(1)(C), BUT THEN, SUB-CLAUSE (2) BEING IN THE NATURE OF THE PROVISO, 701/D/2009-ST 11 WOULD COME IN, AND IN THAT EVENT, OBVIOUSLY, THE ASSESSEE WOULD BE NOT ONLY ENTITLED, RATHER WOULD BE UNDER OBLIGATION TO M AKE DISCLOSURE OF THE INCOME EARNED DURING THE RELEVANT PREVIOUS YEARS, IN WHICH THE INCOME MAY HAVE BEEN EARNED, RESULTING INTO THE DISCLOSURE OF THE TOTAL ASSETS AS ACQUIRED BY UNDISCLOSED INCOME, AND ADM ITTED IN STATEMENT U/S 132(4). THIS MAY BE A QUESTION OF FACT, AS TO WHETHER THE PARTIC ULAR EXTENT OF INCOME SHOWN BY THE ASSESSEE IN SUCH REVISED RETURN IN EACH PARTICULAR PREVIOUS YEAR, MAY BE CORRECT OR NOT, BUT TH EN, THERE MAY BE CASES, WHERE THERE MAY BE FOOL PROOF MATERIAL TO SHOW, THAT THE ASSETS FOUND DURING THE SEARCH AND DISCLOSED U/S 132(4) , WERE ACQUIRED BY THE ASSESSEE DURING A PARTICULAR PAST PREVIOU S YEAR. FOR INSTANCE, LET US TAKE AN EXAMPLE, THAT IN CASE OF A SEARC H, FIXED DEPOSIT RECEIPTS AND/OR PASS BOOKS OF UNDISCLOSED BANK ACCOUNTS ARE FOUND, DISCLOSURE WHEREOF HAS BEEN MADE BY THE ASSESSEE U/S 1 32(4). OBVIOUSLY, THE DATES OF THE FIXED DEPOSIT RECEIPTS AND TH E ENTRIES OF THE RECEIPTS AS APPEARING IN THE BANK PASS BOOKS ARE THE F OOLPROOF MATERIAL TO SHOW, THAT THE ASSESSEE HAD ACQUIRED THOSE ASS ETS AT THE TIME IT PURPORTS TO HAVE BEEN ACQUIRED, AS APPEARING FROM THOSE DOCUMENTS, OR AT ANY EARLIER POINT OF TIME. IN THAT EV ENT, THE ASSESSEE CANNOT BE SAID TO BE UNDER ANY OBLIGATION, OR EVEN RATHER ENTITLED, TO SUBMIT THE RETURN, WITH RESPECT TO THAT INCOME, IN ANY P AST OR FUTURE PREVIOUS YEAR, SIMPLY BECAUSE, HE MAY HAVE DEPOSED IN THE STATEMENT GIVEN U/S 132(4), THAT HE WILL SHOW THAT INCO ME IN THE RETURN OF ANY PARTICULAR ASSESSMENT YEAR, AT THE PAIN OF THE I MMUNITY CONFERRED BY SUB-CLAUSE (2) OF EXPLANATION 5 BEING TAK EN AWAY. THE ABOVE ILLUSTRATION CLEARLY DEMONSTRATES, THAT THE ASS ESSEE IS RATHER UNDER OBLIGATION TO SUBMIT THE RETURN WITH RESPECT TO TH E INCOME, FROM WHICH THE UNDISCLOSED ASSETS HAVE BEEN ACQUIRED, AS DISCLO SED U/S 132(4), IN THE RETURNS OF THE RELEVANT PREVIOUS YEARS ONL Y. EXAMINING THE PRESENT CASE FROM THAT STANDPOINT, IT IS CLEAR, THAT THE ASSESSING AUTHORITY HAS MADE ASSESSMENT FOR THE FIVE ASSES SMENT YEARS, AND INSTEAD OF BELIEVING THE RETURNS FILED BY THE AS SESSEE, THE ASSESSING AUTHORITY, AS A FACT, HAD FOUND THE INCOME T O BE RELATING TO DIFFERENT ASSESSMENT YEARS, IN DIFFERENT VOLUMES, AS CONTR A- DISTINGUISHED TO THE ONE SUBMITTED BY THE ASSESSEE, AND HAS ACCORDINGLY MADE THE ASSESSMENTS, WHICH ASSESSMENTS HAD BECOME FINAL, AND ARE NOT THE SUBJECT-MATTER OF CHALLENGE. THAT BEING THE 701/D/2009-ST 12 POSITION, IN OUR VIEW, IT CANNOT BE SAID THAT THE IMM UNITY CONFERRED BY SUB-CLAUSE (2) OF EXPLANATION 5, CONSEQUENT UPON THE AS SESSEE STATEMENT U/S 132(4), WAS AT ALL TAKEN AWAY, OR EVEN WAT ERED DOWN. 6.5 COMING TO THE CASES RELIED UPON BY THE REVENUE, IT WAS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LIMITED VS. CIT , (2006) 284 ITR 323, THAT A DEDUCTION CANNOT BE CLAIMED IN THE COURSE OF ASSES SMENT PROCEEDINGS BY WAY OF A LETTER WHEN REVISING THE RETURN OF INCOME. HOWEV ER, IT WAS MENTIONED THAT THE POWERS OF THE TRIBUNAL ARE NOT SO FETTERED AND AN ADD ITIONAL GROUND CAN BE RAISED BEFORE IT FOR THE FIRST TIME, IF ALL THE FACTS AR E AVAILABLE ON RECORD, IN VIEW OF THE DECISION IN THE CASE OF NATIONAL THERMAL POWER CORPOR ATION LIMITED VS. CIT (1998) 229 ITR 383 (SUPREME COURT). IT IS THE CASE OF THE REVENUE THAT SIMILAR DECISION WAS RENDERED BY HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF MITTAL ALLOYS & STEAL VS. CIT, (2008) 299 ITR 291. 6.6 IN THE CASE OF CIT VS. RADHA KISHAN GOEL, (2006) 2 00 CTR (ALLD.) 300, IT WAS HELD THAT THE DEEMING PROVISION REGARDING CONCEALMEN T OF INCOME WILL NOT APPLY IF DURING THE COURSE OF SEARCH THE ASSESSEE MAKES A S TATEMENT U/S 132(4) THAT THE MONEY ETC. FOUND IN HIS POSSESSION OR CONTROL HAS BEEN ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN HITHERTO DISCLOSED IN ANY RETUR N TO BE FURNISHED BEFORE THE EXPIRY OF TIME SPECIFIED IN SECTION 139(1) AND ALSO S PECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX TOGETHER WITH INTEREST IN RESPECT OF SUCH INCOME. THE EXCEPTION IS MEANT TO GIVE AN OPPORTU NITY TO THE ASSESSEE TO MAKE A CLEAN AND FAIR CONFESSION WITH A VIEW TO AVOID LITI GATION AND COLLECT TAX. HOWEVER, AN AUTHORIZED OFFICER RECORDS THE STATEMENT IN HI S OWN WAY. THEREFORE, IF THERE IS NO STATEMENT IN RESPECT OF MANNER IN WHICH INCOME HAS BEEN DERIVED BUT HAS BEEN STATED SUBSEQUENTLY, IT WILL SATISFY THE REQUIREM ENT OF THE EXPLANATION. FURTHER, IF THERE IS NO SPECIFICATION ABOUT THE MANNER IT CAN BE INFERRED WITH THAT THE INCOME WAS DERIVED FROM THE BUSINESS. IN THE CASE OF GULA B RAI V. GANDHI VS. 701/D/2009-ST 13 ACIT, (2003) 79 TTJ (MUM.) 498, IT HAS BEEN HELD THAT THE ASSESSEE FULFILLED THE CONDITIONS PRESCRIBED IN THE EXPLANATION AND, THEREFORE, THE IMMUNITY CANNOT BE DENIED ON FLIMSY GROUND THAT STATEMENT U/S 132(4) WAS T O THE EFFECT THAT THE UNDISCLOSED INCOME BELONGED TO FAMILY MEMBERS BUT IN THE RETURN, ENTIRE DECLARATION WAS MADE IN THE HANDS OF THE ASSESSEE. IN THE CASE OF CIT VS. S. KUMAR & OTHERS, (2009) 120 TTJ (BANGALORE) 361, IT WAS HELD THAT IF THE ASSESSEE SURRENDERS UNDISCLOSED INCOME AND SUCH UNDISCLOSED INCOME IS FOUND TO BE INVESTED IN VALUABLES ETC. AND THE ASSESSEE FILES RETURN AND PAYS THE TA XES, THEN, PENALTY IS NOT LEVIABLE. 7. WE MAY RECAPTURE THE FACTS IN BRIEF. THE ASSESSEE HAD FI LED THE RETURN OF INCOME U/S 139(1) ON 31.10.2005 DECLARING LOSS OF `19 ,08,840/-. SEARCHES WERE CONDUCTED ON OR ABOUT 17.02.2006. THE ASSESSEE SURRENDER ED AN AMOUNT OF `110 LAC IN RESPECT OF BENAMI SHARE INVESTMENT ON 18.02.2006. IN RESPONSE TO NOTICE U/S 153A, THE ASSESSING OFFICER WAS INFORMED ON 14.08.2007 THAT THE ORIGINAL RETURN MAY BE TAKEN AS RETURN U/S 153A. THUS, THE INCOME DECLA RED IN RETURN U/S 153A WAS LOSS OF `19,08,840/-. IN THE COURSE OF HEARING, A STA TEMENT OF INCOME WAS FILED ON 14.12.2007 DEDUCTING THE DECLARED INCOME OF `110 LAC FRO M THE LOSS. AS PER THIS STATEMENT, TOTAL AMOUNT PAYABLE INCLUDING INTEREST WAS WORKED OUT AT `46,57,878/-. ON DEDUCTING SELF-ASSESSMENT TAX PAID BY THE ASSESSEE, THE REFUND WAS COMPUTED AT `10,11,782/-. THE GLARING CONTRADICT ION IN THE CASE OF THE ASSESSEE, WHICH EMERGES FROM THESE FACTS, IS THAT THE RETURN U/S 153/A SHOWED A LOSS OF `19,08,840/- AND, THEREFORE, IT CAN BE CLEARLY CONCLUDED THAT THE ASSESSEE RETRACTED THE STATEMENT MADE U/S 132(4) WHEN THE RETURN WAS DEEMED TO HAVE BEEN FILED ON 14.08.2007. THE DECISION IN THE CASE OF S.D.V. CHANDRU SUPPORTS THE CASE OF THE ASSESSEE TO THE EXTENT THAT IF A CONFESSION IS MADE A ND TAX AND INTEREST IS PAID, THE ASSESSEE GETS IMMUNITY UNDER THE EXPLANATION 5, IF THE MANNER IN WHICH THE 701/D/2009-ST 14 INCOME WAS DERIVED, HAS ALSO BEEN SPECIFIED LATER ON. IN T HIS CASE, THE MANNER IN WHICH INCOME IS DERIVED HAS NOT BEEN SPECIFIED AT ANY POI NT OF TIME TILL HEARING OF THIS APPEAL. THE FACTS OF THE CASE OF KANHIYA LAL ARE D ISTINGUISHABLE BECAUSE THE DECLARATION WAS MADE FOR ONE YEAR WHILE THE RETURNS WERE FI LED FOR A NUMBER OF YEARS. STILL THE HONBLE COURT HELD THAT THE IMMUNITY C ANNOT BE TAKEN AWAY. HOWEVER, THIS CASE DOES NOT DEAL WITH RETRACTION OR THE MA NNER IN WHICH INCOME WAS DERIVED. THE CASES OF GOETZE (INDIA) LIMITED IS DISTI NGUISHABLE BECAUSE THAT WAS A CASE OF CLAIMING DEDUCTION THROUGH THE LETTER. HER E, FURTHER INCOME HAS BEEN DECLARED THROUGH THE LETTER. IN ANY CASE, THE TRIBUNAL C AN CONSIDER SUCH LETTER TO COME TO THE CONCLUSION WHETHER IT COULD BE SAID TO BE AN ADDITION TO THE RETURN OF INCOME. SIMILAR WILL BE THE POSITION ARISING FROM THE D ECISION IN THE CASE OF MITTAL ALLOYS & STEEL LTD. COMING TO THE ISSUE OF SPECIFYING TH E MANNER OF EARNING THE INCOME, THE FACTS OF THE CASE OF GULAB RAI V. GANDHI ( SUPRA) ARE DISTINGUISHABLE IN THE SENSE THAT THE DECLARATION WAS MADE IN RESPECT OF FAMI LY MEMBERS ALSO BUT ULTIMATELY THE WHOLE OF THE SURRENDERED INCOME WAS DECLARED I N THE CASE OF THE ASSESSEE. WE FIND FROM THE STATEMENT RECORDED U/S 132(4) TH AT NO QUESTION WAS PUT TO THE ASSESSEE REGARDING THE MANNER IN WHICH THE INCOME WAS DERIVED. IN VIEW OF THE DECISION IN THE CASE OF RADHA KISHAN GOEL, A PRESUMPT ION CAN BE DRAWN THAT THE INCOME HAS BEEN DERIVED FROM THE BUSINESS. HOWEVER, THIS PRESUMPTION STANDS REBUTTED BY THE FACT RECORDED IN ASSESSMENT ORDER THAT NO SALE HAS TAKEN PLACE AS THE PROJECTS OF THE ASSESSEE ARE UNDER CONSTRUCTION. THUS , THERE COULD HAVE BEEN NO OCCASION TO EARN INCOME FROM BUSINESS, WHICH DID NOT Y IELD ANY INCOME TILL THIS YEAR. THEREFORE, THIS CASE DOES NOT ADVANCE THE ARGUMENTS OF THE L EARNED COUNSEL ANY FUTHER. IN THE CASE OF S. KUMAR AND OTHERS THE UNEXPLAIN ED GIFTS WERE SURRENDERED FOR TAXATION, WHICH WERE FOUND RECORDED IN THE BOOKS OF ACCOUNT. THE ASSETS WERE ACQUIRED OUT OF THE GIFTS. THEREFORE, THE IMMUNITY WAS G RANTED AS THE GIFTS WERE SURRENDERED FOR TAXATION, THE RETURN WAS FILED AND TAX AN D INTEREST WERE PAID. THE 701/D/2009-ST 15 FACTS ARE DISTINGUISHABLE AS THE BENAMI INVESTMENTS, DO NOT STAND RECORDED IN THE BOOKS OF THE ASSESSEE, AND THE SURRENDER WAS WITHDRAWN ON DEEMED FILING OF THE RETURN. FURTHER THE INCOME, FROM WHICH BENAMI INVESTMENTS HAVE BEEN MADE, HAS NOT BEEN SURRENDERED. WHAT IS SURRENDERED, ARE THE ASSETS FOU ND IN POSSESSION OF THE ASSESSEE. 7.1 IN VIEW OF THE AFORESAID, IT IS HELD THAT SURRENDER M ADE BY THE ASSESSEE WAS RETRACTED, AND THE MODE AND MANNER OF EARNING THE INCOME H AS NOT BEEN DISCLOSED AT ANY STAGE. ALTHOUGH THE INCOME WAS AGAIN OFFERED FOR TAXATION ON 14.12.2007, BUT THAT WILL NOT WASH OFF THE ACT OF CONCEALMENT COM MITTED TWICE IN FILING RETURN U/S 139(1) AND RETURN U/S 153A FOR THE REASON THAT THE ASSES SEE HAS USED DILATORY TACTICS IN PAYMENT OF TAX AND INTEREST. THE IMMUNITY WHICH COU LD BE GRANTED TO THE ASSESSEE ON SURRENDERING THE INCOME AND PAYING TAXES ETC. AL SO GETS WITHDRAWN WHEN RETURN U/S 153A WAS DEEMED TO HAVE BEEN FILED, AND IT C ANNOT BE RESTORED MERELY BECAUSE IN THE COURSE OF ASSESSMENT U/S 153A, A LETTER WAS FILED ENCLOSING REVISED STATEMENT OF INCOME IN WHICH THE SURRENDERED AMOUNT WAS INCLUDED. 8. THE ASSESSEE HAS ALSO RELIED ON THE DECISION OF THE TRIBU NAL IN ITS OWN CASE FOR ASSESSMENT YEAR 2006-07 IN I.T.A. NO.1280/D/09, DA TED 30.09.2010, IN WHICH THE LEVY OF THE PENALTY WAS HELD TO BE UNJUSTIFIED. THE FACTS FOR THIS YEAR ARE THAT THE PREVIOUS YEAR ENDED ON 31.03.2006 WHILE THE SEARCH WAS CONDUCTED ON 17.02.2006. IN STATEMENT U/S 132(4), THE ASSESSEE DECLAR ED ADDITIONAL INCOME IN RESPECT OF CASH INVESTMENTS AND CASH RECEIPTS OF THE YEAR A ND TAXES WERE ALSO PAID FROM THE SEIZED AMOUNTS. THESE FACTS WILL SHOW THAT THE CASE STANDS COVERED UNDER CLAUSE (B) WHILE THE CASE FOR THIS YEAR IS COVERED UNDER CLAUSE (A) OF THE EXPLANATION. THUS, THE RETURN OF INCOME FOR ASSESSMENT YEAR 2006-07 HA D NOT BECOME DUE ON THE DATE OF SEARCH WHILE THE RETURN FOR THIS YEAR HAD NOT ONLY BECOME DUE BUT WAS FURNISHED ALSO. THIS VERY RETURN WAS REITERATED U/S 15 3A WHILE THERE WAS NO SUCH QUESTION FOR ASSESSMENT YEAR 2006-07. IT WAS HELD THAT THE ASSESSEE HAD MADE A 701/D/2009-ST 16 DECLARATION AND WHICH WAS ACTED UPON SUBSEQUENT TO THE C ONDUCT OF THE SEARCH. HOWEVER, AS MENTIONED EARLIER, THE DECLARATION STANDS RETR ACTED FOR THIS YEAR WHEN ORIGINAL RETURN WAS REITERATED U/S 153A. THEREFORE, THE R ATIO OF THIS DECISION IS NOT APPLICABLE ON THE FACTS IN THE CIRCUMSTANCES OF THE CAS E. 9. IN RESULT, THE APPEAL IS DISMISSED. THIS ORDER WAS PRONOUNCED IN OPEN COURT ON 25.03.2010 . SD/- SD/- ( C.L. SETHI ) ( K.G. BANSAL ) JUDICIAL MEMBER ACCOUNTANT ME MBER DT.25.03.2010. NS COPY FORWARDED TO:- 1. M/S SHOURYA TOWERS (P) LTD., (PRESENTLY KNOWN AS NITISH REE INFRASTRUCTURE LTD.), 78B, SECTOR D-2, GROUP II, KONDLI GUHAROLI, MA YUR VIHAR, PHASE-III, DELHI. 2. DCIT, CENTRAL CIRCLE 21, NEW DELHI. 3. THE CIT 4. THE CIT (A), NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY BY ORDER (ITAT, NEW DELHI).