Case Law Details
Rishabh Buildwell P. Ltd. Vs DCIT (ITAT Delhi)
Once the assessee files a revised return under Section 1 53A, for all other provisions of the Act, the revised return will be treated as the original return filed under Section 139.
For the Revenue to invoke Explanation-5, it would have to prove that its requirements are clearly fulfilled in the present case. In order for Explanation-5 to apply, it is necessary that there must be certain assets (such as money, bullion etc.) found in the possession of the assessee during the search, and that the assessee must claim that such assets have been acquired by him by utilizing his income. Moreover, such income must be in relation to a particular previous year that has either ended before the date of the search or is to end on or after the date of the search and such income is declared subsequently in the return of income filed after the search. Therefore, it is only when assets are found during the search which the assessee claims have been acquired by him by utilizing his income for any particular previous year, and then declares such income in a subsequent return filed after the date of search, would it be deemed that the assesee has concealed his income. In other words, the assets seized during the search must relate to the income of the particular assessment year whose return is filed after the date of the search. Such a conclusion is only logical, considering that assessment under the Act is with respect to a particular assessment year and the penalty imposed under Section 271(1)(c) would also be for concealing income in that particular assessment year, which concealment was revealed by the discovery of certain assets in the assessee’s possession during the search conducted under Section 132. {Refer PR. Commissioner of Income Tax Vs Shri Neeraj Jindal (Delhi High Court)}
From the perusal of the seized material, we also find that the Revenue has not concretized any concealment by the assessment years in question based on the seized material. The assessment did not emanate in the seized material but a reinforcement of the income declared by the assessee.
Keeping in view the facts that there is no difference between returned income and the assessed income, keeping in view the fact that the Revenue has not brought any material for levy of penalty, Keeping in view the judgments which were enunciated that the return filed in response to notice 153A of the Act needs to be treated as returned filed u/s 139 of the Act for the purpose of assessment, we hereby delete the penalty levy u/s 271(1)(c) of the Act.
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