Shri Sureshkumar Jethalal Shah, Godhra V. The ACIT, Central Circle-1, Baroda

ITSSA 322/AHD/2014

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3736 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-11-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 21-11-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 04-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Income from undisclosed sources; Question of law; Difference of opinion; Agreed addition
• Section: 271(1)(c); 143(3); 153A; 139(1)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER () ./ I.T(SS).A. NOS. 322 TO 326/AHD/2014 ( ASSESSMENT YEARS : 2005-06 TO 2009-10) SHRI SURESHKUMAR JETHALAL SHAH GIRIRAJ SOCIETY, NR. B. B. GANDHI PETROL PUMP, GODHRA DAHOD ROAD, GODHRA - 389001 / VS. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1, AAYAKAR BHAWAN, RACE COURSE CIRCLE, VADODARA ./ ./ PAN/GIR NO. : AIPPS8732E ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI BANDISH SOPARKAR, A.RS. / RESPONDENT BY: SHRI L. P. JAIN, SR. D.R. !' DATE OF HEARING 21/11/2019 #$%& !' / DATE OF PRONOUNCEMENT 28/11/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE ABOVE CAPTIONED BUNCH OF FIVE APPEALS CONCERNIN G VARIOUS ASSESSMENT YEARS RELATE TO THE SAME ASSESSEE AGAINS T THE COMMON ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-IV, AHMEDA BAD [CIT(A) IN SHORT] DATED 16/05/2014 FOR THE ASSESSMENT YEARS (AYS) FROM 2005-06 TO 2009-10. IT(SS)A NOS. 322 TO 326/AHD/14 (SHRI SURESHKUMAR J. SHAH) AYS. 2005-06 TO 2009-10 - 2 - 2. THE ISSUE INVOLVED IN ALL THESE APPEALS CONCERN IMPOSITION OF PENALTY UNDER S.271(1)(C) OF THE INCOME TAX ACT, 19 61 (HEREINAFTER REFERRED TO AS 'THE ACT'). AS THE ISSUE IS COMMON , ALL THE FIVE APPEALS ARE DISPOSED OF BY COMMON ORDER TO ACHIEVE CONVENIE NCE. 3. IT(SS)A NO.322/AHD/2014 RELEVANT TO AY 2005 -06 IS TAKEN AS A LEAD CASE FOR THE PURPOSES OF ADJUDICATION. IT(SS)A NO.322/AHD/2014 AY 2005-06 4. IN THE CAPTIONED APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL FOR ADJUDICATION. 1. THE LEARNED COMMISSIONER OF THE INCOME TAX (AP PEAL) IV, AHMEDABAD ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION O F ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, BARODA IN LEVYING PENALTY OF RS.16,95,644/- ON ACCOUNT OF THE DIFFERENCE OF IN COME BETWEEN RETURN FILED U/S.139(1) AND SECTION 153A OF THE INCOME TAX ACT, 1961 (THE ACT). 5. BRIEFLY STATED, A SEARCH ACTION UNDER S.132 OF T HE ACT WAS CARRIED OUT IN R. K. CONSTRUCTION GROUP OF CASES INCLUDING THE CASE OF THE ASSESSEE ON 09/04/2010. PRIOR TO SEARCH, THE ASSES SEE FILED RETURN OF INCOME ((ROI) UNDER S.139(1) OF THE ACT FOR ASSESS MENT YEARS 2005-06 TO 2009-10 AND DECLARED VARIED INCOME. AFTER THE S EARCH ACTION, THE ASSESSEE FILED FRESH RETURN OF INCOME IN RESPONSE T O STATUTORY NOTICES ISSUED UNDER S.153A OF THE ACT FOR ALL THESE ASSESS MENT YEARS. THE ASSESSEE DISCLOSED ADDITIONAL INCOME FOR ALL THE AS SESSMENT YEARS IN THE RETURNS FILED UNDER S.153A OF THE ACT. THE VARIED INCOME SO DECLARED BY THE ASSESSEE IN DIFFERENT ASSESSMENT YEARS IN APPEA LS AND ASSESSED INCOME IS TABULATED HEREUNDER. AY RETURNED INCOME U/S.139(1) RETURNED INCOME U/S.153A ADDITIONAL INCOME DECLARED U/S.153A ADDITIONS MADE U/S.153A INCOME ASSESSED U/S.153A PENALTY ON ADDITIONAL INCOME IMPOSED 2005-06 3,48,640 53,75,130 50,12,489 -- 53,75,130 16,95,644 IT(SS)A NOS. 322 TO 326/AHD/14 (SHRI SURESHKUMAR J. SHAH) AYS. 2005-06 TO 2009-10 - 3 - 2006-07 3,58,168 48,12,810 44,54,640 -- 48,12,810 15,05,282 2007-08 5,36,030 51,40,740 46,04,714 -- 51,40,740 15,61,250 2008-09 3,83,470 38,83,620 35,00,155 -- 38,83,620 11,96,300 2009-10 6,97,220 57,19,840 50,22,624 -- 57,19,840 17,18,176 THE ASSESSMENT WAS FINALIZED UNDER S.153A OF THE AC T R.W.S. 143(3) OF THE ACT FOR ALL THE ASSESSMENT YEARS. TH E ASSESSING OFFICER (AO) IMPOSED PENALTY UNDER S.271(1)(C) OF THE ACT O N THE DIFFERENCE BETWEEN INCOME ASSESSED UNDER S.153A AND RETURNED U NDER S.139(1) OF THE ACT. THE CIT(A) ALSO CONFIRMED THE IMPOSITION OF PENALTY MADE BY THE AO BY TAKING NOTE OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. 6. THE ASSESSEE HAS PREFERRED CAPTIONED APPEALS BEF ORE THE TRIBUNAL AGAINST THE COMBINED ORDER OF THE CIT(A) ASSAILING CONFIRMATION OF PENALTY. AS PER ITS GROUND OF APPEAL, THE CHALLENG E OF THE ASSESSEE IS LIMITED TO THE CORRECTNESS OF IMPOSITION OF PENALTY ON DIFFERENTIAL INCOME DISCLOSED IN THE RETURN FILED UNDER S.139(1) OF THE ACT VIS-A-VIS RETURN FILED UNDER S.153A OF THE ACT. 7. IN THE COURSE OF HEARING BEFORE THE TRIBUNAL, TH E LEANED AR FOR THE ASSESSEE SUBMITTED THAT IN ALL THE 5 ASSESSMENT YEA RS IN APPEAL, THE PENALTY HAS BEEN IMPOSED BY THE REVENUE AUTHORITIES UNDER S. 271(1)(C) OF THE ACT R.W. EXPLANATION 5A ON ACCOUNT OF DIFFER ENCE BETWEEN THE INCOME DECLARED IN THE RETURN ORIGINALLY FILED PRIO R TO SEARCH QUA THE RETURN AS FILED SUBSEQUENTLY IN COMPLIANCE OF NOTIC E UNDER S.153A OF THE ACT IN PURSUANCE OF SEARCH ACTION. 8. AS REGARDS THE IMPOSITION OF PENALTY TOWARDS DIF FERENCE IN THE INCOME DECLARED BETWEEN ORIGINAL RETURN PRIOR TO SE ARCH AND SUBSEQUENT RETURN FILED PURSUANT TO SEARCH UNDER S.153A OF THE ACT IS CONCERNED, THE LEARNED AR CONTENDED THAT THE REVENUE IS NOT ENTITL ED TO IMPOSE PENALTY ON INCOME DECLARED BY THE ASSESSEE HIMSELF UNDER S. 153A OF THE ACT. THE LEARNED AR REFERRED TO THE DECISION OF THE CO-O RDINATE BENCH OF TRIBUNAL IN DILIP KEDIA VS. ACIT (2013) 40 TAXMANN.COM 102 (HYDERABAD-TRIB.) AND SUBMITTED THAT THE AO WAS NOT JUSTIFIED IN LEVY OF IT(SS)A NOS. 322 TO 326/AHD/14 (SHRI SURESHKUMAR J. SHAH) AYS. 2005-06 TO 2009-10 - 4 - PENALTY UNDER S. 271(1)(C) OF THE ACT UPON THE ASSE SSEE ON AGREED ADDITIONS INCLUDED IN THE RETURN OF INCOME FILED UN DER S.153A OF THE ACT PURSUANT TO SEARCH. 9. THE LD.DR FOR THE REVENUE, ON THE OTHER HAND, RE LIED UPON THE ORDER OF THE CIT(A) AND SUBMITTED THAT THE ACTION O F THE CIT(A) IS IN CONFIRMITY WITH LAW AND THEREFORE NO INTERFERENCE T HEREOF IS CALLED FOR. THE LEARNED DR ALSO REFERRED TO THE DECISION RENDER ED BY THE HONBLE DELHI HIGH COURT IN PR.CIT VS. DR. VANDANA GUPTA (2018) 92 TAXMANN.COM 229 (DEL.) TO CONTEND THAT THE ASSESSEE CANNOT BE ABSOLVED OF PENALTY FOR DECLARATION OF ENHANCED INCOME IN TH E RETURN FILED UNDER S. 153A OF THE ACT SUBSEQUENT TO SEARCH QUA THE RETURN FILED BY THE ASSESSEE UNDER S.139(1) OF THE ACT PRIOR TO SEARCH. THE LEA RNED DR ALSO REFERRED TO THE DECISION OF THE CO-ORDINATE BENCH IN DCIT VS. SHRI SINKARAM CHETTIAR ITA NO. 368-373/COCH/2017 ORDER DATED 02.08.2018 TO BUTTRESS ITS CONTENTION THAT WHERE THE ADDITIONAL INCOME DEC LARED BY THE ASSESSEE IN THE RETURN FILED UNDER S.153A OF THE ACT SUBSEQU ENT TO SEARCH REPRESENTS UNDISCLOSED INCOME OF THE ASSESSEE AND D ID NOT FORM PART OF THE REGULAR INCOME DECLARED UNDER S.139(1) OF THE A CT, THE REVENUE WAS JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 271 (1)(C) OF THE ACT. ADDRESSING FURTHER, THE LEARNED DR REFERRED TO THE STATEMENT OF THE ASSESSEE RECORDED UNDER S.139(4) OF THE ACT AND SUB MITTED THAT CASH AND OTHER DOCUMENTS WERE FOUND IN THE PREMISES OF THE A SSESSEE WHICH WAS FOUND TO BE UNRECORDED IN THE REGULAR BOOKS OF ACCO UNTS. THE ASSESSEE HAS CATEGORICALLY ADMITTED SUBSTANTIAL UNACCOUNTED INCOME ON THE BASIS OF SUCH UNACCOUNTED ACTIVITIES AND INCLUDED THE SAM E IN THE RETURN OF INCOME. THE LEARNED DR SUBMITTED THAT NON-IMPOSITIO N OF PENALTY ON SUCH UNDISCLOSED INCOME WOULD TANTAMOUNT TO GIVING THE PREMIUM TO A SEARCHED ASSESSEE VIS--VIS A REGULAR ASSESSEE. IT WAS FURTHER POINTED OUT THAT EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT DEEMS ACT OF CONCEALMENT EVEN BEFORE RETURN IS FILED. IT WAS LA STLY SUBMITTED BY THE LEARNED DR THAT THE CIT(A) HAS EXAMINED THE ISSUE T HREADBARE AND NO INTERFERENCE THEREWITH IS CALLED FOR. IT(SS)A NOS. 322 TO 326/AHD/14 (SHRI SURESHKUMAR J. SHAH) AYS. 2005-06 TO 2009-10 - 5 - 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. IN TERMS OF THE PLEA RAISED, THE CENTRAL QUESTION THAT EMERGES FOR DETERMINATION IS WHETHER PENALTY UNDER S. 271(1)(C) OF THE ACT CAN B E IMPOSED ON ADDITIONAL INCOME DECLARED IN THE RETURN FILED BY T HE ASSESSEE UNDER S.153A OF THE ACT VIS--VIS THE INCOME DECLARED IN THE RETURN FILED UNDER S.139(1) OF THE ACT? WE FIND THAT THE ISSUE IS NO LONGER RES INTEGRA. THE IDENTICAL ISSUE HAS BEEN SQUARELY CONSIDERED BY THE CO-ORDINATE BENCH IN THE CASE OF SAME COMBINATION IN VIJAY K. SHAH VS. ITO IN IT(SS)A NOS.54 TO 57/AHD/2014 FOR AYS 2003-04 TO 2006-07, ORDER DATED 13/04/2017 . IT WILL BE APT TO REPRODUCE THE RELEVANT PARA DEALING WITH CONTENTIONS RAISED ON BEHALF OF THE ASSESSEE: 9. NOTWITHSTANDING THAT THE ISSUE IS AFFIRMED IN FAVOUR OF THE ASSESSEE IN THE GIVEN FACTS OF THE CASE, WE ARE EQUALLY INCLINED TO DWELL UPON THE CARDINAL PLEA RAISED ON BEHALF OF THE ASSESSEE FOR THE PROPOSITIO N THAT AS SOON AS RETURN IS FILED UNDER S.153A, THE IMPOSITION OF PENALTY OR OTHERWIS E HAS TO BE SEEN ONLY WITH REFERENCE TO THE RETURN FILED UNDER S.153A AND RETU RN FILED EARLIER UNDER S.139 PRIOR TO SEARCH SHOWING LESSER QUANTUM OF INCOME FADES IN TO INSIGNIFICANCE IN ALL CIRCUMSTANCES. FOR THIS PROPOSITION, THE DECISION O F THE HONBLE GUJARAT HIGH COURT IN KIRIT DAHYABHAI PATEL VS. ACIT (2015) 280 CTR 216 (GUJ.) WAS HEAVILY RELIED UPON IN THE COURSE OF HEARING. IN ESSENCE T HUS, IT IS THE CASE OF THE ASSESSEE THAT INCOME DISCOVERED AS A RESULT OF SEARCH AND IN CLUDED IN THE RETURN FILED UNDER S.153A IN POST SEARCH PROCEEDINGS ARE NOT SUSCEPTIB LE TO PENALTY UNDER S.271(1)(C) OF THE ACT AT ALL NOTWITHSTANDING EXPLANATION-5 SUB SISTING IN STATUTE AT THE RELEVANT TIME. 9.1. WE STRAIGHT AWAY RECKON THAT SUCH SWEEPING PROPOSITION DOES NOT FIND ANY SEMBLANCE OF ACCEPTABILITY. AS NOTED EARLIER, EXP LANATION-5 TO SECTION 271(1)(C) SPECIFICALLY ADDRESSES THE AFORESAID SITUATION WHER E IT IS SPECIFICALLY PROVIDED THAT NOTWITHSTANDING THE FACT THAT UNDISCLOSED INCOME FO UND AS A RESULT OF SEARCH WAS DECLARED IN THE RETURN OF INCOME FURNISHED AFTER TH E DATE OF SEARCH, THE ASSESSEE SHALL BE DEEMED TO FALL WITHIN THE SWEEP OF SECTION 271(1)(C) UNLESS THE ASSESSEE IS COVERED BY EXIT ROUTE PROVIDED IN THE EXPLANATIO N-5 ITSELF. THUS, THE AFORESAID PROPOSITION CANVASSED BY THE ASSESSEE THAT ONCE THE RETURN IS FILED BY THE ASSESSEE AFTER THE SEARCH IN RESPONSE TO NOTICE ISSUED UNDER S.153A INCLUDING UNDISCLOSED INCOME DISCOVERED IN THE COURSE OF SEARCH, THE ASSE SSEE GETS INDEFEASIBLE RIGHT TO SHUN AWAY PENALTY PROCEEDINGS ON SUCH UNDISCLOSED I NCOME IS SQUARELY AT LOGGERHEADS WITH DEEMING FICTION CREATED UNDER EXPL ANATION-5 FOR THIS PURPOSE. NEEDLESS TO SAY, THIS GENERIC PROPOSITION TOWARDS N ON-APPLICABILITY OF PENALTY ON UNDISCLOSED INCOME, IF SEEN IN AFFIRMATIVE, WILL RE NDER THE LEGISLATIVE FIAT UNDER EXPLANATION-5 RELATABLE TO SEARCH CASES AS OTIOSE A ND INFRUCTUOUS. AS CAN BE SEEN, THE BENEFIT OF IMMUNITY PROVIDED UNDER EXPLANATION- 5 IS WELL DEFINED AND STRUCTURED. AS PROVIDED, IT IS AVAILABLE ONLY IN R ESPECT OF SUCH YEAR WHERE THE DUE DATE OF FILING OF THE RETURN HAS NOT EXPIRED BEFORE THE DATE OF SEARCH SUBJECT TO FULFILLMENT OF CONDITIONS AS CONTEMPLATED IN THE SA ID EXPLANATION. IT(SS)A NOS. 322 TO 326/AHD/14 (SHRI SURESHKUMAR J. SHAH) AYS. 2005-06 TO 2009-10 - 6 - 9.2. WE SHALL NOW ADVERT TO THE DECISION IN THE CASE OF KIRIT DAHYABHAI PATEL (SUPRA) REFERRED TO AND EXTENSIVELY RELIED UPON ON BEHALF OF THE ASSESSEE. WE NOTICE THAT IN THAT CASE, THE SUBSTANTIAL QUESTION OF LAW FRAMED FOR DECISION BEFORE THE HONBLE GUJARAT HIGH COURT WAS CONFINED TO AVAILABI LITY OF IMMUNITY UNDER CLAUSE(2) TO EXPLANATION-5 OF SECTION 271(1)(C) IN THE FACTS OF THE CASE. FOR READY REFERENCE, IT IS REPRODUCED HEREUNDER:- WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE INCOME TAX APPELLATE TRIBUNAL WAS RIGHT IN LAW IN RESTORING TH E PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT HOLDING THAT BENEFIT U NDER EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT WOULD BE AVAILABLE ONL Y FOR PERIOD WHERE DUE DATE FOR FILING THE RETURN UNDER SECTION 139(1) OF THE ACT HAD NOT EXPIRED? IN THE CONTEXT OF ABOVE QUESTION POSED, THE HONBLE GUJARAT HIGH COURT AFTER REFERRING TO SERIES OF DECISIONS OF VARIOUS COURTS FOUND THAT THE ASSESSEE HAS BROADLY SATISFIED ALL THE CONDITIONS REQUIRED FOR CLAIMING IMMUNITY FROM PAYMENT OF PENALTY UNDER S.271(1)(C) OF THE ACT. 9.3. SIGNIFICANTLY, THE ASSESSEE HIMSELF AFTER HAVI NG RAISED THE GENERAL PROPOSITION TOWARDS CLAIMING IMMUNITY TOWARDS UNDISCLOSED INCOM E INCLUDED IN S.153A RETURN, IN EXERCISE OF ITS WISDOM, PAUSED AND WENT ON TO WI THDRAW THE SAME AT A LATER STAGE BEFORE THE LD.THIRD MEMBER IN THE ITAT PROCEEDINGS IN KIRIT DAHYABHAI PATEL VS. ACIT REPORTED IN (2009) 121 ITD 159 (TM) WHICH DE CISION WAS SUBJECT MATTER OF APPEAL BEFORE THE HONBLE GUJARAT HIGH COURT. THUS , APPARENTLY, THE ASSESSEE HIMSELF WHILE IN APPEAL BEFORE HONBLE HIGH COURT, WAS NO LONGER AGGRIEVED BY THE PROPOSITION THAT RETURN UNDER S.153A IS AMENABLE TO PENALTY PROVISIONS UNDER S.271(1)(C) OF THE ACT. TO ELABORATE, THE LD.THIRD MEMBER CLEARLY RECORDED A FINDING THAT THE ASSESSEE HAS NOT DISPUTED THE POSI TION THAT SECTION 271(1)(C) IS APPLICABLE TO AN ASSESSMENT MADE UNDER S.153A. THE SUBSTANTIVE QUESTION THAT EMERGED BEFORE THE LD.THIRD MEMBER OF ITAT ON ACCOU NT OF DIFFERENCE OF OPINION WAS WHETHER IMMUNITY GRANTED UNDER EXPLANATION-5(2) TO SECTION 271(1)(C) IS AVAILABLE TO THE ASSESSEE. THUS, ON NUANCED AND CO NTEXTUAL ANALYSIS OF THE JUDGEMENT RENDERED BY THE HONBLE GUJARAT HIGH COUR T IN APPEAL UNDER S.260A OF THE ACT, IT IS DIFFICULT TO RECKON THE CASE MADE OU T BY THE ASSESSEE THAT ADDITIONAL INCOME DECLARED IN THE POST SEARCH RETURNS WOULD BE ENTITLED TO IMMUNITY FROM PENALTY IN A SWEEPING MANNER REGARDLESS OF THE SATI SFACTION OF CONDITIONS AS PROVIDED FOR ITS NON-APPLICABILITY AS ENUMERATED UN DER CLAUSE(2) OF EXPLANATION-5. 9.4. NEEDLESS TO SAY, SENTENCES USED WHILE RENDE RING A JUDGMENT CANNOT BE READ IN ISOLATION AND THEIR PURPORT AND CONTENTS ARE DERIVE D FROM THEIR CONTEXT. AS NOTED, THE LAW IS CODIFIED FOR APPLICABILITY OF PENALTY IN SEARCH CASES. THE LEGISLATURE HAS MADE CONSCIOUS DISTINCTION BETWEEN THE CASES WHERE THE RETURN OF INCOME HAS ALREADY BEEN FILED PRIOR TO SEARCH QUA THE CASES WH ERE THE RETURN IS YET TO BE FILED AND HAS PUT THEM ON A DIFFERENT PEDESTAL. IT IS T RITE LAW THAT A JUDGEMENT CANNOT BE READ OUT OF CONTEXT IN WHICH THE QUESTION AROSE FO R DECISION IN THAT CASE. IT IS NEITHER DESIRABLE NOR PERMISSIBLE TO PICK OUT A WOR D OR A SENTENCE FROM THE JUDGMENT OF A COURT DIVORCED FROM THE CONTEXT OF TH E QUESTION IN CONSIDERATION AND TO TREAT IT TO BE THE COMPLETE LAW DECLARED BY THE COURT. A JUDGMENT MUST BE READ AS A WHOLE AND THE OBSERVATIONS FROM THE JUDGMENT H AVE TO BE CONSIDERED IN THE LIGHT OF QUESTIONS WHICH WERE PRESENTED BEFORE THE COURT. A DECISION OF THE COURT IT(SS)A NOS. 322 TO 326/AHD/14 (SHRI SURESHKUMAR J. SHAH) AYS. 2005-06 TO 2009-10 - 7 - TAKES ITS COLOUR FROM ITS QUESTION IN WHICH IT IS R ENDERED AS ENUMERATED IN CIT VS. SUN ENGINEERING WORKS PVT. LTD. (1992) 198 ITR 297 (SC). THUS, CONTEXT HOLDS THE KEY AND THE DECISION OF THE COURT HAS TO BE READ IN THE CONTEXT OF THE FACTS INVOLVED THEREIN AND NOT ON THE BASIS OF WHAT LOGICALLY FLOW S THERE FROM. A STRAY SENTENCE CANNOT BE ALLOWED TO BE PUT INTO SERVICE TO DRAW A MEANING WHICH WAS NEVER PROBABLY MEANT BY THE AUTHOR HIMSELF. A JUDGMENT I S NOT TO BE READ AS STATUTE. THUS, IN THE LIGHT OF QUESTION FRAMED FOR DECISION BY HONBLE GUJARAT HIGH COURT, WE ARE INCLINED TO HOLD THAT THE ABSTRACT PROPOSIT ION OF NON-APPLICABILITY OF PENALTY PROCEEDINGS IN ALL CIRCUMSTANCES (WHEREVER UNDISCLO SED INCOME HAS BEEN INCLUDED IN THE RETURN FILED POST-SEARCH) IS SINGULARLY MISP LACED AND IS NOT SUPPORTED BY THE FACTUAL CONTEXT IN WHICH THE DECISION IN KIRIT DAHY ABHAI PATEL(SUPRA) WAS RENDERED. 10. IN VIEW OF THE AFORESAID DELIBERATION, WE DO NO T FIND ANY MERIT IN THE PERSPECTIVE OF THE ASSESSEE BEFORE LOWER AUTHOR ITIES IN SO FAR AS LEGAL POSITION ON THE IMPOSITION OF PENALTY IS CONCERNED. THE ASSESSEE IS THUS REQUIRED TO DEMONSTRATE MITIGATING CIRCUMSTANCES FO R NON-APPLICATION OF S.271(1)(C) R.W.S. EXPLANATION 5A ON FACTS TO ESCAP E ITS MISCHIEF. MERE INCLUSION OF ADDITIONAL INCOME IN THE ROI UNDER S.1 53A PER SE DOES NOT PROVIDE BLANKET EXEMPTION FROM PROVISION OF S.271(1 )(C) OF THE ACT IN SEARCH CASES. 11. WE SHALL NOW ADDRESS OURSELVES ON THE APPLICA TION OF EXPLANATION 5A IN THE FACTS OF THE CASE. THE SEARCH IN THE IN STANT CASE HAS BEEN CARRIED OUT ON 09/04/2010 I.E. AFTER EXPLANATION 5A TO SECTION 271(1)(C) WAS PUT IN STATUTE ALONG WITH SOME OTHER STRUCTURAL CHANGES IN SUBSTITUTION OF EXPLANATION 5 THEREOF. THE EXPLAN ATION 5A IS A DEEMING PROVISION. AS NOTED, WHERE SEARCH IS INITIATED ON OR AFTER 01/06/2007, A NEW EXPLANATION 5A HAS BEEN SPECIFICALLY INSERTED T O SECTION 271(1)(C) TO DEAL WITH A SITUATION WHERE HIGHER INCOME WAS DI SCLOSED IN THE RETURN FILED CONSEQUENT TO SEARCH OPERATION WHERE THE ASSE SSEE IS FOUND TO BE THE OWNER OF MONEY, BULLION, JEWELLERY OR OTHER VAL UABLE ARTICLES OR THINGS OR ANY INCOME BASED ON DOCUMENTS OR TRANSACT IONS. THE AO IN THE INSTANT CASE HAS ALLEGED THAT THE ASSESSEE DISCLOSE D ITS UNREPORTED INCOME IN SUBSEQUENT RETURN UNDER S.153A POST SEARCH AS RE FLECTED BY THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH. THE UNREPORTED ADDITIONAL INCOME OF DIFFERENT AMOUNTS SO DECLARED IS GIVEN IN THE IT(SS)A NOS. 322 TO 326/AHD/14 (SHRI SURESHKUMAR J. SHAH) AYS. 2005-06 TO 2009-10 - 8 - TABULATION PROVIDED EARLIER. IT IS THE CASE OF RE VENUE THAT THE ADDITIONAL INCOME WAS DECLARED BY THE ASSESSEE IN THE RETURN F ILED UNDER S.153A DUE TO STRENUOUS EXERCISE CARRIED OUT BY THE DEPARTMENT IN THE CASE OF ASSESSEE GROUP AS A RESULT OF LAYING HAND ON A LOT OF INCRIMINATING DOCUMENTS AND FACTS ETC. THESE DOCUMENTS ETC. WERE CONFRONTED TO THE ASSESSEE AND ESCAPED INCOME WAS UNEARTHED. 12. IT IS ALSO BORN OUT FROM THE RECORD THAT ASSE SSEE HAS CONCEDED THE UNDISCLOSED INCOME IN THE STATEMENT RECORDED ON OAT H UNDER S.132(4) OF THE ACT. AS EMBODIED IN S.132(4), THE EXAMINATION O F PERSON IN RESPECT OF BOOKS, DOCUMENTS, MONEY, BULLION, JEWELLERY OR O THER VALUABLE ARTICLES OR THINGS ETC. IS A PIECE OF EVIDENCE AND IS CAPABL E OF BEING USED AGAINST THE ASSESSEE IN INCOME TAX PROCEEDINGS THEREAFTER. THUS S.132(4) EMBODIES STATUTORY PRESUMPTION WHICH IS ALBIET OF R EBUTTABLE NATURE. THE UNDERSTANDING ABOUT THE TRUE POSITION AND STATE OF AFFAIRS IN STATEMENT UNDER S.132(4) IS NOT SHOWN TO BE SUCCESSFULLY RETR ACTED. THUS, THE DEPOSITION MADE ON OATH UNDER S.132(4) HOLDS THE FI ELD. IT IS NOWHERE BORNE OUT FROM RECORD BEFORE US THAT AMOUNT CONCEDE D AS UNDISCLOSED INCOME WAS GIVEN IN VACUUM OR IN RECKLESS MANNER AN D CIRCUMSTANCES FOR DOING SO, IF ANY. THE ESTOPPELS RAISED ON ADMITTED FACTS REMAINED UNREBUTTED AND ON THE CONTRARY WAS FURTHER RATIFIED IN THE ROI FILED UNDER S.153A OF THE ACT. WE DO NOT SEE ANY RATIONALE IN NOT TAKING INTO ACCOUNT THE INCOME SO CONCEDED IN SUCH CIRCUMSTANCE S FOR THE PURPOSES OF PENALTY PROCEEDINGS UNDER S.271(1)(C) WHICH ARE CIVIL IN NATURE AND IS A REMEDY FOR POSSIBLE LOSS OF REVENUE. IN VIEW OF T HE AFORESAID DISCUSSION, WE ARE OF THE CONSIDERED VIEW THAT RECO URSE TO EXPLANATION 5A COULD BE RIGHTLY TAKEN BY THE REVENUE IN THE FAC TS AND THE CIRCUMSTANCES OF THE CASE. 13. HAVING REGARD TO THE LEGAL AND FACTUAL POSITIO N AS NOTED ABOVE, WE DO NOT FIND ANY MERIT IN THE APPEALS OF THE ASSESSE E TOWARDS EXONERATION FROM PENALTY PROCEEDINGS IN RESPECT OF UNREPORTED I NCOME INCORPORATED IN THE RETURN FILED UNDER S.153A OF THE ACT. THE C IT(A) HAS RIGHTLY IT(SS)A NOS. 322 TO 326/AHD/14 (SHRI SURESHKUMAR J. SHAH) AYS. 2005-06 TO 2009-10 - 9 - APPRECIATED THE FACTS AND LAW INCLUDING DECISION RE NDERED IN THE CASE OF DILIP KEDIA (SUPRA). WE THUS DECLINE TO INTERFERE. 14. IN THE RESULT, ALL THE CAPTIONED APPEALS OF THE ASSESSEE ARE DISMISSED. (MAHAVIR PRASAD) (PRADIP KUMAR K EDIA) JUDICIAL MEMBER ACCOUNTANT ME MBER AHMEDABAD: DATED 28/11/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- ). / REVENUE 2. / ASSESSEE +. ,-.! /! / CONCERNED CIT 4. /!- / CIT (A) 2. 345 6!6-.7 ' -.&7 89, / DR, ITAT, AHMEDABAD :. 5;< = / GUARD FILE. BY ORDER / 7 /8 ' -.&7 89, THIS ORDER PRONOUNCED IN OPEN COURT ON 28/11/201 9