RAJESH BINDAL, J. - (1.) CM No. 23470 -CII of 2005 For the reasons stated in the application, the delay in filing the appeal is condoned.
(2.) HE application stands disposed of. T Appeal No. 585 of 2005
(3.) THE appellant (hereinafter described as 'the assessee') has approached this Court, by filing the present appeal, 'the Tribunal') in ITA No. 79/Asr/2004 for the asst. yr. 1993 -94, raising the following substantial question of law : "Whether, under the facts and circumstances of the case, the Tribunal was justified in upholding the levy of penalty under s. 271(1)(c) to the extent of Rs. 4,42,928 while interpreting the Expln. 5 to s. 271(1)(c) for the asst. yr. 1993 - - . Briefly, the facts of the case are that search and seizure operation was carried out at the residential and business search, large number of books of account and other incriminating documents were found from the business as well as residential premises. Undisclosed cash and jewellery were also found and seized. Statement of the assessee under s. 132(4) of the IT Act, 1961 (for short, 'the Act') was also recorded wherein the assessee offered to surrender an undisclosed income of Rs. 10 lacs for the purpose of taxation, which included cash and jewellery found at the time of search, deposits in the bank, investment in household articles and the income reflecting from various transactions income of Rs. 10,25,530, which included the surrendered income. This return was filed in response to notice under s. 142(1) of the Act. In the assessment, certain additions were made by disallowing certain expenses, which were partly deleted, whereas some of the additions were upheld upto the Tribunal. 4. As the assessee had concealed particulars of his income and it was only as a result of the search and seizure operation carried out at his residential and business premises, that the assessee came forward to disclose his concealed income to the tune of Rs. 10 lacs, which may not be even to the extent of his concealed income, a notice under s. 271 (1)(c) of the Act was issued for levy of penalty on account of concealment of income. After considering the explanation furnished by the assessee and also his reliance upon Expln. 5 to s. 271(1)(c) of the Act, the AO held that the assessee does not fulfil the mandatory conditions as laid down in Expln. 5 to s. 271(1)(c) and penalty under s. 271(1)(c) was levying penalty was dismissed by the Commissioner of Income -tax (Appeals) [for short, 'the CIT(A)'] vide order dt. 28th "I have considered the submissions of the appellant in the light of the details available on the record and relying upon arguments of the appellant that the appellant has specified the manner in which the income was earned but the immunity which is available is dependent on the other clause also i.e., payment of the taxes on the income disclosed together with the interest thereon. The appellant asked for adjustment of seized cash of Rs. 1,90,000 towards the tax payable as advance tax based on the decisions of the Hon'ble jurisdictional Tribunal but the same being not before AO the claim of the appellant is not adjudicated. In the written submissions, the appellant has mentioned that the total tax worked out by the Department was of Rs. 4,21,498 but the said fact is factually incorrect because total tax along with the interest payable which was worked out as a result of s. 143(1)(a) order stood at a sum of Rs. 6,94,558 and after considering the self -assessment tax of Rs. 2,70,000 and even for the time being after treating the seized cash of Rs. 1,90,000 as advance tax the appellant defaulted in clearing the tax along with interest on the amount so surrendered. One of the basic conditions of Expln. 5 having not been complied with, therefore, I find merits in the order of the AO and the penalty worked out at a sum of Rs. 4,42,928 is confirmed." ;