Jaynaben Ramesh Tailor, Surat V. The Dy.CIT.,Circle-2, Surat

ITSSA 242/AHD/2010

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0607 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-02-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 12-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Unexplained investment; Search and seizure; Principle of natural justice; Question of law
• Section: 143(3); 5(2); 153A; 132; 139

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , .. ' , #$ # % BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER IT(SS)A NO. 242/AHD/2010 [ASSTT. YEAR: 2005-06] JAYNABEN RAMESH TAILOR MAIN BAZAR VYARA 394 650 PAN: AAWPT 9897 N VS DCIT, CENT.CIR.2 SURAT. IT(SS)A NO. 589/AHD/2012 [ASSTT. YEAR: 2004-05] DCIT, CENT.CIR.2 SURAT. VS SMT.JAYNABEN RAMESH TAILOR RAYAKWAD STREET, MAI BAZAR VYARA. IT(SS)A NO. 599/AHD/2012 [ASSTT. YEAR: 2004-05] JAYNABEN RAMESH TAILOR MAIN BAZAR VYARA 394 650 VS A CIT, CENT.CIR.2 SURAT. &' / (APPELLANT) )* &' / (RESPONDENT) ASSESSEE(S) BY : SHRI MEHUL SHAH, AR REVENUE BY : SHRI DINESH SINGH, SR.DR / DATE OF HEARING : 04/02/2015 / DATE OF PRONOUNCEMENT: 20/02/2015 #+/ O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: 2. IT(SS)A.NO.589/AHD/2012 AND 599/AHD/2012 ARE CRO SS APPEALS FILED BY THE REVENUE AND THE ASSESSEE AGAINST THE O RDER OF THE CIT(A)- IT(SS)TA NO.242/AHD/2010 & 2 ORS. IN THE CASE OF SMT.JAYNABEN RAMESH TAILOR VS. DCIT 2 II, DATED 28.9.2012 AND IT(SS)A.NO.242/AHD/2010 IS THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-II DATED 27.11.2009. IT(SS)A.NO.589/AHD/2012 : ASSTT.YEAR 2004-05 (REVENUE S APPEAL) 3. THE SOLE GROUND RAISED IN THIS APPEAL OF THE REV ENUE READS AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.8,29,400/- RELATING TO THE UNACCOUNTE D INCOME OF RS.26,00,000/- DISCLOSED BY THE ASSESSEE IN THE RET URN OF INCOME FILED IN RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED ITS RETURN OF INCOME RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT DECLARING TOTAL INCOME AT RS.29,25,680/- WHICH INCLUDED THE U NDISCLOSED INCOME OF RS.26 LAKHS DISCLOSED DURING THE COURSE OF SEARC H AS PERTAINING TO THE YEAR UNDER CONSIDERATION. THE AO INITIATED PENAL TY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT IN RESPONSE TO THE DIS CLOSURE OF RS.26 LAKHS OFFERED IN THE RETURN OF INCOME. THE AO LEVIED PEN ALTY OF RS.8,29,400/- ON THE DISCLOSURE OF RS.26 LAKHS OFFERED IN THE RET URN OF INCOME FOR CONCEALMENT OF INCOME. 5. ON APPEAL, THE CIT(A) DELETED THE PENALTY BY OBS ERVING THAT THE ASSESSEE HAD OFFERED ADDITIONAL INCOME OF RS.26.00 LAKHS IN HER RETURN OF INCOME U/S.153A AND HAS PAID THE TAX ALONG WITH INTEREST THEREON. THE SAID DISCLOSURE HAS BEEN MADE IN RESPECT OF UNA CCOUNTED INVESTMENTS IN ASSETS AND THE SAME STANDS ACCEPTED BY THE AO IN THE ASSESSMENT ORDER. HE OBSERVED THAT THE FACTS OF TH E ASSESSEES CASE ARE COVERED BY THE DECISION OF THE HONBLE COURT OF RAJASTHAN IN THE CASE OF CIT VS. KANAIYALAL, (2008) 299 ITR 19 (RAJ) AND CIT VS. MISHRIMAL SONI, (2007) 289 ITR 77, AND THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. S.D.V. CHANDRU, ( 2004) 266 ITR 175 (MAD), WHEREIN IT WAS HELD THAT THE IMMUNITY FROM P ENALTY UNDER IT(SS)TA NO.242/AHD/2010 & 2 ORS. IN THE CASE OF SMT.JAYNABEN RAMESH TAILOR VS. DCIT 3 EXPLANATION-5 OF SECTION 271(1)(C) OF THE ACT CANNO T BE TAKEN AWAY FOR THE SIMPLE REASON THAT INCOME DISCLOSED BY THE ASSE SSEE IN HIS STATEMENT U/S.132(4) FOR A PARTICULAR YEAR WAS SPRE AD OVER IN THE RETURN OF SEVERAL YEARS, AND MORE SO, WHEN THE AO HAD ALSO MADE ASSESSMENT IN THOSE ASSESSMENT YEARS AS RETURNED BY THE ASSESS EE. THE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. MISHRINAL SONI (S UPRA) HAS HELD THAT EXPLANATION-5 TO SECTION 271(1)(C) OF THE ACT APPLI ES TO DISCLOSURE OF UNDISCLOSED ASSETS, BOTH TANGIBLE AS WELL AS INTANG IBLE ASSETS AND PENALTY UNDER SECTION 271(1)(C) OF THE ACT CANNOT B E LEVIED IN RESPECT OF UNEXPLAINED INVESTMENT IN MONEY LENDING BUSINESS AN D LOAN ADVANCED BY THE ASSESSEE EVIDENCED BY PROMISSORY NOTES FOUND DURING THE COURSE OF SEARCH. THE HONBLE MADRAS HIGH COURT IN THE CA SE OF CIT VS. S.D.V. CHANDRU (SUPRA) HAS HELD THAT PARA-2 IN EXPLANATION -5 DOES NOT MAKE ANY DISTINCTION BETWEEN THE PREVIOUS YEAR WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND THE PREVIOUS YEAR WHICH IS TO EN D ON OR AFTER THE DATE OF SEARCH AND THEREFORE, WHEN THE ASSESSEE FIL ED HIS RETURNS FOR THE EARLIER YEARS ADMITTING A LARGER INCOME AND ALSO PA ID TAX TOGETHER WITH INTEREST AFTER HIS STATEMENT WAS RECORDED U/S.132(4 ), AND HE WAS ENTITLED TO IMMUNITY UNDER EXPLANATION-5 TO SECTION 271(1)(C) OF THE ACT AND THE PENALTY WAS NOT LEVIABLE. 6. BEFORE US, THE AR OF THE ASSESSEE FILED COPY OF THE ORDER OF THIS BENCH OF THE TRIBUNAL PASSED IN THE CASE OF ASSESSE E ITSELF IN ASSTT.YEAR 2006-07 IN ITA NO.IT(SS)A.NO.760/AHD/2010 ORDER DAT ED 30.1.2015 AND SUBMITTED THAT THE ISSUE INVOLVED WAS COVERED I N FAVOUR OF THE ASSESSEE BY THE AFORESAID ORDER OF THE TRIBUNAL. 7. THE DR ALSO AGREED WITH THE SUBMISSIONS OF THE A R. 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. WE FIND THAT THE ISSUE IS C OVERED IN FAVOUR OF THE ASSESSEE, BY THE ABOVE ORDER OF THE TRIBUNAL IN THE CASE OF THE IT(SS)TA NO.242/AHD/2010 & 2 ORS. IN THE CASE OF SMT.JAYNABEN RAMESH TAILOR VS. DCIT 4 ASSESSEE. THE RELEVANT PORTION OF THE ORDER OF THE TRIBUNAL READS AS UNDER: 6. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT D URING THE COURSE OF SEARCH AND SEIZURE ACTION A DISCLOSURE OF RS. 5, 01000/- WAS MADE BY THE ASSESSEE AND THE SAME WAS ALSO INCLUDED BY THE ASSESSEE IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT. THE RETURN FILED BY THE AS SESSEE HAS ALSO BEEN ACCEPTED BY THE AO AND NO ADDITION HAS BEEN MA DE BY AO. THE AO IN THE PRESENT CASE HAD LEVIED PENALTY ON TH E AMOUNT SURRENDERED BY THE ASSESSEE DURING THE COURSE OF SE ARCH AND SEIZURE OPERATION AND THE AFORESAID PENALTY WAS CON FIRMED BY LD. CIT(A) BY FOLLOWING THE DECISION IN THE CASE OF KIR IT DAYABHAI PATEL (SUPRA). WE FIND THAT THE DECISION IN THE CASE OF K IRIT DAYABHAI PATEL (SUPRA) WAS CHALLENGED BY THE ASSESSEE AND TH E HONBLE GUJARAT HIGH COURT VIDE ORDER DATED 03-12-2014 IN T AX APPEAL NOS. 1181-1185 OF 2010 HAS REVERSED THE ORDER OF HO NBLE TRIBUNAL BY HOLDING AS UNDER:- 13. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO CONSIDERING THE DECISIONS RELIED UPON BY L EARNED SENIOR ADVOCATE FOR THE APPELLANT, WE ARE OF THE CO NSIDERED OPINION THAT THE VIEW TAKEN BY THE TRIBUNAL IS ERRO NEOUS. THE CIT(A) RIGHTLY HELD THAT IT IS NOT RELEVANT WHE THER ANY RETURN OF INCOME WAS FILED BY THE ASSESSEE PRIOR TO THE DATE OF SEARCH AND WHETHER ANY INCOME WAS UNDISCLOSED IN THAT RETURN OF INCOME. IN. VIEW OF SPECIFIC PROVISION OF SECTION 153A OF THE I.T. ACT, THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE I.T, ACT IS TO BE CONSIDERED AS RETURN FILED UNDER SECTION 139 OF THE ACT, AS THE ASSESSING OFFICER HAS MADE ASSESSMENT ON THE SA ID RETURN AND THEREFORE, THE RETURN IS TO BE CONSIDERE D FOR THE PURPOSE OF PENALTY UNDER SECTION 271(L)(C) OF THE I .T. ACT AND THE PENALTY IS TO BE LEVIED ON THE INCOME ASSES SED OVER AND ABOVE THE INCOME RETURNED UNDER SECTION 153A, I F ANY. 14. FURTHER, IN THE PRESENT CASE, IT APPEARS FROM T HE RECORD THAT THE ASSESSEES HAD SATISFIED ALL THE CONDITIONS WHICH ARE REQUIRED FOR CLAIMING IMMUNITY FROM PAYMENT OF PENA LTY UNDER SECTION 271(1) OF THE ACT. THE PROVISION DOES NOT SPECIFY ANY TIME LIMIT DURING WHICH THE AFORESAID A MOUNT I.E. THE AMOUNT OF PENALTY WITH INTEREST HAS TO BE PAID. ADMITTEDLY WHEN THE ASSESSEES HEREIN HAVE PAID THE ENTIRE AMOUNT WITH INTEREST, THE ASSESSING OFFICER OUGHT T O HAVE GRANTED THEM IMMUNITY AVAILABLE UNDER SECTION 27I(1 )(C) OF IT(SS)TA NO.242/AHD/2010 & 2 ORS. IN THE CASE OF SMT.JAYNABEN RAMESH TAILOR VS. DCIT 5 THE INCOME TAX ACT. 15. THE DECISION RELIED UPON BY LEARNED ADVOCATE FOR THE RESPONDENT WILL NOT APPLY TO THE F ACTS OF THE PRESENT CASE. 16. IN VIEW OF THE AFORESAID FACT S OF THE CASE AND ALSO THE PRINCIPLE LAID DOWN IN THE DECISI ONS RELIED UPON BY THE LEARNED SENIOR COUNSEL FOR THE APPELLAN T MORE PARTICULARLY THE PRINCIPLE LAID DOWN IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX VS. GEBILAL KANHAILAL (S UPRA) AND COMMISSIONER OF INCOME TAX VS. ABDUL RASHID (SU PRA), WE ARE OF THE CONSIDERED OPINION THAT THE PENALTY U NDER SECTION 271(1) (C) OF THE INCOME TAX ACT CANNOT BE LEVIED ON THE INCOME SHOWN IN THE RETURN FILED UNDER SECTI ON 153 OF THE I.T. ACT. 7. BEFORE US, REVENUE HAS NOT BRO UGHT ANY BINDING CONTRARY DECISION IN ITS SUPPORT. WE THEREF ORE RESPECTFULLY FOLLOWING THE DECISION OF HONBLE GUJA RAT HIGH COURT IN THE CASE OF KIRIT DAYABHAI PATEL, HOLD THA T NO PENALTY IS LEVIABLE IN THE PRESENT CASE AND THUS DI RECT ITS DELETION. 7. BEFORE US, REVENUE HAS NOT BROUGHT ANY BINDING CONTRARY DECISION IN ITS SUPPORT. WE THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE C ASE OF KIRIT DAYABHAI PATEL, HOLD THAT NO PENALTY IS LEVIA BLE IN THE PRESENT CASE AND THUS DIRECT ITS DELETION. 9. THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE DECI SION OF THE TRIBUNAL, WE CONFIRM THE ORDER OF THE CIT(A), AND D ISMISS THE APPEAL OF THE REVENUE. IT(SS)A.NO.599/AHD/2012 : ASSTT.YEAR 2004-05 (ASSESSE ES APPEAL) 10. THE SOLE GROUND OF APPEAL OF THE ASSESSEE IS AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD.CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE PENALTY OF RS.8, 67,700/- U/S.271(1)(C) OF THE ACT AS LEVIED BY THE AO IN RES PECT OF ALLEGED UNACCOUNTED INVESTMENT IN LAND, WHICH IS ERRONEOUS AND BAD IN LAW AND NEEDS TO BE DELETED. 11. BRIEF FACTS OF THE CASE ARE THAT IN RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT, THE ASSESSEE FILED HER RET URN OF INCOME DECLARING INCOME AT RS.29,25,680/-. THE ASSESSMENT WAS MADE UNDER SECTION 143(3) R.W.S. 153A OF THE ACT WHICH WAS COM PLETED ON IT(SS)TA NO.242/AHD/2010 & 2 ORS. IN THE CASE OF SMT.JAYNABEN RAMESH TAILOR VS. DCIT 6 30.6.2008, WHEREIN ADDITION OF RS.25,36,720/- FOR U NACCOUNTED INVESTMENT IN LAND WAS MADE BY THE AO. 12. ON APPEAL, THE CIT(A) CONFIRMED ACTION OF THE A O. 13. THEREAFTER, THE AO LEVIED PENALTY |UNDER SECTIO N 271(1)(C) OF THE ACT ON THE SAID ADDITION OF RS.25,36,720/- AMOUNTIN G TO RS.8,67,700/- FOR CONCEALMENT OF INCOME. 14. ON APPEAL THERE AGAINST, THE CIT(A) CONFIRMED T HE PENALTY. 15. BEFORE US, THE AR OF THE ASSESSEE FILED COPY OF THE ORDER OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF QUANTUM APPEAL OF THE ASSESSEE IN IT(SS)A.NO.187, 240 AND 241/AHD/2010 ORDER DATED 28 .8.2014 AND SUBMITTED THAT THE TRIBUNAL HAS RESTORED THE ADDITI ON OF RS.25,36,720/- ON WHICH PENALTY HAS BEEN LEVIED, TO THE FILE OF TH E AO FOR FRESH ADJUDICATION OF THE ISSUE. HENCE, IT WAS HIS SUBMI SSION THAT THE ISSUE OF PENALTY SHOULD ALSO BE RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN THE LIGHT OF THE DECISION TAKEN IN THE SET ASIDE PROCEEDING. 16. THE DR AGREED WITH THE SUBMISSION OF THE ASSESS EE. 17. IN VIEW OF THE ABOVE SUBMISSIONS OF BOTH THE PA RTIES, WE SET ASIDE, THE ORDERS OF THE LOWER AUTHORITIES AND REMA ND THE MATTER BACK TO THE FILE OF AO FOR FRESH ADJUDICATION OF ISSUE O F PENALTY UNDER SECTION 271(1)(C) OF THE ACT AFRESH IN THE LIGHT OF THE DEC ISION TAKEN IN THE SET ASIDE PROCEEDINGS OF THE ASSESSEE ON THE ADDITION O F RS.25,36,720/- . THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTI CAL PURPOSE. IT(SS)A.NO.242/AHD/2010 : ASSTT.YEAR 2005-06 (ASSESSE ES APPEAL) 18. ONLY GROUND RAISED IN THIS APPEAL OF THE ASSESS EE IS AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE PENALTY OF RS.1 3,67,813/- IT(SS)TA NO.242/AHD/2010 & 2 ORS. IN THE CASE OF SMT.JAYNABEN RAMESH TAILOR VS. DCIT 7 U/S.271(1)(C) OF THE ACT AS LEVIED BY THE AO, WHICH NEEDS TO BE DELETED IN THE INTEREST OF NATURAL JUSTICE AND EQUI TY. 19. BRIEF FACTS OF THE CASE ARE THAT IN THE SCRUTIN Y ASSESSMENT UNDER SECTION 143(3) R.W.S. 153A OF THE ACT WAS COMPLETED ON 30.6.2008 ASSESSING TOTAL INCOME AT RS.48,63,624/-. THEREAFT ER, THE AO LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON THE G ROUND THAT DURING THE SEARCH UNDER SECTION 132 OF THE ACT CONDUCTED O N 15.11.2006 WHEREIN SOME INCRIMINATING DOCUMENTS AND EVIDENCES WERE FOUND AND SEIZED WHICH SHOWED THAT THE ASSESSEE HAD UNACCOUNT ED INCOME OF RS.40.02 LAKHS WHICH SURRENDERED BY THE ASSESSEE, A ND HENCE, PENALTY OF RS.13,67,813/- WAS LEVIED ON THE SAID INCOME. 20. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF T HE AO ON THE GROUND THAT THE THIRD MEMBER DECISION OF THE ITAT, AHMEDABAD IN THE CASE OF ACIT VS. KIRIT DAYABHAI PATEL, IN ITA NO.23 44/AHD/2007 FOR ASSTT.YEAR 2002-03 HAS HELD THAT THE BENEFIT OF EXPLANATION-5(2) TO SECTION 271(1)(C) OF THE ACT IS CONFINED TO THE YEA R IN RESPECT OF WHICH THE DUE DATE FOR FILING THE RETURN IS YET TO COME B UT THE BENEFIT IS NOT AVAILABLE TO EARLIER YEARS WHERE DUE DATE TO FILE T HE RETURN OF INCOME UNDER SECTION 139(1) HAS EXPIRED. 21. BEFORE US, AR OF THE ASSESSEE FILED A COPY OF T HE ORDER OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF KIRIT DAH YABHAI PATEL VS. ACIT, TAX APPEAL NO.1181, 1182 AND 1185 OF 2010 ORD ER DATED 3.12.2014 AND SUBMITTED THAT THE HONBLE GUJARAT HI GH COURT HAS REVERSED THE ORDER OF THE TRIBUNAL IN THAT CASE, AN D THEREFORE, HE SUBMITTED THAT THE ORDER OF THE CIT(A) SHOULD BE SE T ASIDE AND PENALTY LEVIED BY THE AO SHOULD BE DELETED. 22. THE DR AGREED WITH THE SUBMISSIONS OF THE AR OF THE ASSESSEE. 23. WE FIND THAT THE HONBLE GUJARAT HIGH COURT HAS DECIDED THE FOLLOWING SUBSTANTIAL QUESTION OF LAW: IT(SS)TA NO.242/AHD/2010 & 2 ORS. IN THE CASE OF SMT.JAYNABEN RAMESH TAILOR VS. DCIT 8 WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE INCOME TAX APPELLATE TRIBUNAL WAS RIGHT IN LAW IN RESTORIN G THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT HOLDING THAT BENEFIT UNDER EXPLANATION 5 TO SECTION 271(1)(C) OF 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.? 24. THE HONBLE GUJARAT HIGH COURT HELD AS UNDER: 13. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO CONSIDERING THE DECISIONS RELIED UPON BY LEARNED SE NIOR ADVOCATE FOR THE APPELLANT, WE ARE OF THE CONSIDERED OPINION THAT THE VIEW TAKEN BY THE TRIBUNAL IS ERRONEOUS. THE CIT(A) RIGH TLY HELD THAT IT IS NOT RELEVANT WHETHER ANY RETURN OF INCOME WAS FI LED BY THE ASSESSEE PRIOR TO THE DATE OF SEARCH AND WHETHER AN Y INCOME WAS UNDISCLOSED IN THAT RETURN OF INCOME. IN VIEW OF SP ECIFIC PROVISION OF SECTION 153A OF THE I.T. ACT, THE RETURN OF INCO ME FILED IN RESPONSE TO NOTICE UNDER SECTION 153(A) OF THE I.T. ACT IS TO BE CONSIDERED AS RETURN FILED UNDER SECTION 139 OF THE ACT, AS THE ASSESSING OFFICER HAS MADE ASSESSMENT ON THE SAID R ETURN AND THEREFORE, THE RETURN IS TO BE CONSIDERED FOR THE P URPOSE OF PENALTY UNDER SECTION 271(1) (C ) OF THE I.T. ACT A ND 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 ASSESSEES HAD SATISFIED ALL THE CONDITIONS WHIC H ARE REQUIRED FOR CLAIMING IMMUNITY FROM PAYMENT OF PENALTY UNDER SECTION 271(1) OF THE ACT. THE PROVISION DOES NOT SPECIFY A NY TIME LIMIT DURING WHICH THE AFORESAID AMOUNT I.E. THE AMOUNT O F PENALTY WITH INTEREST HAS TO BE PAID. ADMITTEDLY WHEN THE ASSESS EES HEREIN HAVE PAID THE ENTIRE AMOUNT WITH INTEREST, THE ASSE SSING OFFICER OUGHT TO HAVE GRANTED THEM IMMUNITY AVAILABLE UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT. 15. THE DECISION RELIED UPON BY LEARNED ADVOCATE FO R THE RESPONDENT WILL NOT APPLY TO THE FACTS OF THE PRESE NT CASE. 16. IN VIEW OF THE AFORESAID FACTS OF THE CASE AND ALSO THE PRINCIPLE LAID DOWN IN THE DECISIONS RELIED UPON BY THE LEARNED SENIOR COUNSEL FOR THE APPELLANT MORE PARTICULARLY THE PRINCIPLE LAID DOWN IN THE CASE OF ASSISTANT COMMISSIONER OF INCOM E TAX VS. GEBILAL KANHAILAL (SUPRA) AND COMMISSIONER OF INCOM E TAX VS. ABDUL RASHID (SUPRA), WE ARE OF THE CONSIDERED OPIN ION THAT THE PENALTY UNDER SECTION 271(1) (C) OF THE INCOME TAX ACT CANNOT BE IT(SS)TA NO.242/AHD/2010 & 2 ORS. IN THE CASE OF SMT.JAYNABEN RAMESH TAILOR VS. DCIT 9 LEVIED ON THE INCOME SHOWN IN THE RETURN FILED UNDE R SECTION 153 OF THE I.T. ACT. 17. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO CONSIDERING THE DECISION OF THE MADRAS HIGH COURT I N THE CASE OF S.D.V. CHANDU SUPRA), WE ARE OF THE OPINION THAT TH E APPELLANT IS ENTITLED TO THE BENEFIT OF THE PROVISIONS OF EXPLAN ATION 5(2) TO SECTION 271(1)(C) OF THE INCOME TAX ACT. 18. FOR THE FOREGOING REASONS, THE PRESENT APPEALS STAND ALLOWED. THE ORDER OF THE TRIBUNAL IS QUASHED AND SET ASIDE. CONSEQUENTLY, THE ORDER OF THE CIT(A) IS RESTORED. THE QUESTION O F LAW INVOLVED IN THIS APPEALS IS ANSWERED IN FAVOUR OF THE ASSESS EE AND AGAINST THE REVENUE. 25. RESPECTFULLY FOLLOWING THE ABOVE DECISION, WE S ET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY, AND THE GROUN D OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 26. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR A SSTT.YEAR 2004-05 IS ALLOWED FOR STATISTICAL PURPOSE AND THE APPEAL OF T HE ASSESSEE FOR ASSTT.YEAR 2005-06 IS ALLOWED. REVENUES APPEAL F OR THE ASSTT.YEAR 2004-05 IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON FRIDAY THE 20 TH FEBRUARY, 2015 AT AHMEDABAD. SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 20 /02/2015 #+ , )-. /#.0 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A), AHMEDABAD 5. $%& '' , , )*++ / DR, ITAT, AHMEDABAD 6. &,- . / GUARD FILE. #+ / BY ORDER, 1/ 2 ( DY./ASSTT.REGISTRAR)