Kiran Grover, New Delhi v. DCIT, New Delhi

ITA 4416/DEL/2011 | 2004-2005
Pronouncement Date: 31-07-2012 | Result: Allowed

Appeal Details

RSA Number 441620114 RSA 2011
Assessee PAN AEUPG1762K
Bench Delhi
Appeal Number ITA 4416/DEL/2011
Duration Of Justice 9 month(s) 27 day(s)
Appellant Kiran Grover, New Delhi
Respondent DCIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 31-07-2012
Date Of Final Hearing 30-07-2012
Next Hearing Date 30-07-2012
Assessment Year 2004-2005
Appeal Filed On 04-10-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) SHRI R.K. GUPTA JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA ACCOUNTANT MEMBER ITA NOS.4413 TO 4418/DEL./2011 (ASSESSMENT YEARS : 2001-02 TO 2006-07) MS. KIRAN GROVER VS. DCIT CENTRAL CIRCLE 25 C/O VINOD KUMAR BINDAL & CO. NEW DELHI. SHIV SUSHIL BHAWAN D-219 VIVEK VIHAR PHASE I NEW DELHI 110 095. (PAN : AEUPG1762K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SANJEEV BANSAL CA REVENUE BY : SHRI D.K. MISHRA CIT DR ORDER PER B.C. MEENA ACCOUNTANT MEMBER : THESE SIX APPEALS FILED BY THE ASSESSEE EMANATES FR OM THE ORDER OF CIT (APPEALS)-I NEW DELHI DATED 12.08.2011 FOR THE ASS ESSMENT YEARS 2001-02 TO 2006-07. 2. THE ASSESSEE IS AN INDIVIDUAL AND PARTNER IN M/S . LEELA ENTERPRISES AND M/S. SUPER ADVERTISING AGENCY. A SEARCH AND SEIZUR E OPERATION WAS CARRIED OUT U/S 132 OF THE INCOME-TAX ACT 1961 ON 22.11.20 06 AT THE RESIDENCE OF THE ASSESSEE. CERTAIN DOCUMENTS / LOOSE PAPERS WERE FO UND AND SEIZED. NOTICES U/S 153A WERE ISSUED AND THE ASSESSEE FILED THE RET URN OF INCOME DECLARING ITA NOS.4413 TO 4418/DEL./2011 2 ADDITIONAL INCOME FROM BUSINESS WHICH WAS NOT DISCL OSED IN THE ORIGINAL RETURN OF INCOME. THE ASSESSMENTS WERE FINALIZED A T THE INCOME DECLARED IN THE RETURNS OF INCOME FILED U/S 153A OF THE INCOME- TAX ACT 1961. THE PENALTY PROCEEDINGS U/S 271(1)(C) WERE INITIATED FO R THE ADDITIONAL INCOME DECLARED IN THE RETURN OF INCOME. THE PENALTIES U/ S 271(1)(C) ARE LEVIED FOR ALL THESE YEARS. THE DETAILS OF ASSESSMENT YEAR ADDIT IONAL INCOME DECLARED TOTAL INCOME ASSESSED INCOME AND AMOUNT OF PENALTY LEVIED U/S 271(1)(C) FOR ALL THESE SIX ASSESSMENT YEARS ARE AS BELOW :- ASSESSMENT YEAR INCOME DECLARED ADDITIONALLY (RS.) TOTAL DECLARED INCOME (RS.) ASSESSED INCOME (RS.) PENALTY U/S 271(1)(C) 2001-02 4 65 827 6 66 130 6 66 130 1 63 507 2002-03 53 171 2 48 870 2 48 870 16 270 2003-04 13 98 032 16 57 160 16 57 160 4 51 404 2004-05 2 61 629 5 35 840 5 35 840 88 989 2005-06 1 28 519 4 39 100 4 39 100 39 328 2006-07 7 32 063 9 96 930 9 96 930 2 24 014 3. AGAINST THIS ORDER ASSESSEE IS BEFORE US IN APP EAL IN ALL THESE YEARS. THE CIT (A) HAS CONFIRMED THE PENALTY BY HOLDING AS UNDER :- 7. I HAVE GONE THROUGH THE SUBMISSION FILED BY TH E APPELLANT AND THE MAIN CONTENTION OF THE APPELLANT ARE THAT T HE PROVISIONS OF EXPLANATION 5 TO SECTION 271(1)(C) ARE NOT APPLI CABLE IN A SEARCH CARRIED OUT BETWEEN 1.06.03 TO 31.05.07 AND SECONDLY THE SAID EXPLANATION IS APPLICABLE ONLY IN RESPECT OF A SSETS REPRESENTING UNDISCLOSED INCOME FOUND IN SEARCH AND NOT ON UNDISCLOSED INCOME DECLARED ON THE BASIS OF ENTRIES RECORDED IN THOSE DOCUMENTS/PAPERS FOUND DURING THE SEARCH. 8. THE CONTENTION OF THE APPELLANT THAT EXPLANATIO N 5 HAD NO APPLICATION BETWEEN THE PERIOD 01.06.03 TO 31.05.07 IS NOT ACCEPTABLE BECAUSE THE APPELLANT HAS IGNORED THIS F ACT THAT THE ITA NOS.4413 TO 4418/DEL./2011 3 CASE OF THE APPELLANT FALLS WITHIN THE GENERAL PROV ISIONS OF SECTION 271 (1)( C) AS WELL AS EXPLANATION 5 TO THI S SECTION. THE APPELLANT HAS NOWHERE IN HIS SUBMISSION HAS ABLE TO REBUT THE FACT THAT ITS CASE DOES NOT FALL WITHIN THE GENERAL PROVISIONS OF SECTION 271 (1)(C). 9. THE FACT THAT THE INCOME SURRENDERED BY THE APP ELLANT WAS ON THE BASIS OF THE DOCUMENTS / PAPERS FOUND DURING THE SEARCH IS NOT IN DISPUTE. IN SUCH A SITUATION NOT WITHSTANDI NG THE FACT THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INC OME FURNISHED ON OR AFTER THE DATE OF THE SEARCH HE SH ALL FOR THE PURPOSES OF SECTION 271 (1)( C) BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED IN ACCURATE PARTICULARS OF SUCH INCOME EXCEPT IN CASES WERE SUCH TRANSACTIONS RESULTING IN SUCH INCOME ARE RECORDED IN THE BOOKS OF ACCOUNTS M AINTAINED BY HIM BEFORE THE DATE OF SEARCH. IN ORDER TO AVOID FALLING WITHIN THE PROVISIONS OF SECTION 271 (1)( C) THE APPELLANT NOT ONLY HAS TO ESTABLISH THAT EXPLANATION 5 IS NOT APPLICABLE TO T HE FACTS OF THIS CASE BUT HE HAS ALSO TO ESTABLISH THAT HE DOES NOT FALL WITHIN THE ENTIRE PROVISIONS OF SECTION 271 (1)(C). IN PRADIP CHANDULAL PATEL V. P.G.KARODE [(1992) 197 ITR 385 398 (GUJ) IT HAS BEEN HELD THAT IN PASSING AN ORDER UNDER SECTION 132(5) THE OFFICER WAS RIGHT IN COMING TO THE CONCLUSION THAT INDEPEN DENTLY OF THE SAID EXPLANATION 5 PENALTY WAS IMPOSABLE UNDER SEC TION 271(1)(C). 10. THE APPELLANT HAS FURTHER STATED IN PARA 4.4 TH AT THE APPELLANT HAS FURNISHED NEW RETURNS AND THE OLD ASS ESSMENTS STAND CANCELLED AND BECAUSE FILING OF DUE RETURNS M ANDATORY THE INCOME SHOWN IN SUCH RETURN FILED U/S 153A CANNOT B E REGARDED AS SUCH KIND OF ADMISSION ON PART OF THE APPELLANT. THIS CONTENTION OF THE APPELLANT DOES NOT ABSOLVE IT OF CONCEALMENT OF INCOME AND FURNISHING INACCURATE OF INCOME. IN THE RETURN FILED U/S L53A THE INCOME SHOWN IS A RESULT OF THE SEARCH WHICH THE APPELLANT SHOWS ON THE BASIS OF THE DOCUMENTS FOUND DURING THE SEARCH. THUS THE DISCLOSURE CANNOT BE REGARDED AS V OLUNTARY OR SUO-MOTA. 'IN CIT V ABOO MOHMED [(2000) 160 CTR (KA RN) 128 129 130] THE TRIBUNAL HAS BEEN HELD NOT RIGH T IN LAW IN HOLDING THAT THE ASSESSEE HAS NOT CONCEALED PARTICU LARS OF INCOME AS CONCEALMENT HAS TO BE CONSIDERED WITH RE FERENCE TO THE RETURN OF INCOME FILED BY THE ASSESSEE WHEN TH E ASSESSEE HAS FILED THE RETURN OF INCOME AFTER SEIZURE OF CASH FR OM THE ASSESSEE ITA NOS.4413 TO 4418/DEL./2011 4 BY THE CUSTOMS AND CENTRAL EXCISE AND ITS SEIZURE B Y THE I.T DEPARTMENT U/S132A. THIS IS SO BECAUSE THE ASSESSEE HAS HIMSELF FAILED TO PROVE THE SOURCE AND THE ACQUISITION OF T HE THAT MONEY AND ULTIMATELY HAS OFFERED THE AMOUNT FOR TAXATION. ' RELIANCE IS ALSO PLACED ON THE FOLLOWING JUDGEMENTS; 1. IN THE CASE OF SANGAM ENTERPRISES V. COMMISSION ER OF INCOME-TAX (ALLD) 288 ITR 396 WHERE THE COURT HE LD THAT IF CONCEALMENT IS DISCOVERED DURING SEARCH PEN ALTY CAN JUSTIFIABLY BE LEVIED. THE ALLAHABAD HIGH COURT POINTED OUT THAT EXPLANATION 1 TO SECTION 271 (1)(C ) WAS APPLICABLE EVEN IN THE CASE WHERE SEARCH HAS BEEN C ARRIED OUT. 2. IN THE CASE OF M.SHAHUL MAMEED BATCHA V. INCOME - TAX OFFICER (MAD) 292 ITR 585 THE ASSESSEE FILED R EVISED RETURNS BEFORE THE ISSUE OF NOTICE U/S 148 OF THE I T ACT WHICH WAS ACCEPTED BY THE ASSESSING OFFICER BUT TH E ASSESSING OFFICER LEVIED PENALTY ON THE GROUND THAT THE ASSESSEE FILED THE REVISED RETURN ONLY AFTER THE SE ARCH TOOK PLACE AND IN THIS CASE BOTH THE HON'BLE TRIBUNAL AS WELL AS HON'BLE HIGH COURT CONFIRMED THE PENALTY. 3. IN THE CASE OF COMMISSIONER OF INCOME-TAX V. MAHABIT PRASAD BAJAJ (JHARKHAND) 298 ITR 109 THE HON'BLE HIGH COURT CONFIRMED THE PENALTY AFTER THE APPELLANT HAD FILED A REVISED RETURN AS A CONSEQUEN CE OF THE SEARCH CARRIED OUT BY THE INCOME TAX DEPARTMENT . 4. IN THE CASE OF P.RAJASWAMY V. COMMISSIONER OF INCOME-TAX (KERALA) 323 ITR 527 THE HON'BLE HIGH COURT OBSERVED WHILE DISMISSING THE APPEAL THAT TH E DECLARATION FOR THE PURPOSES OF AVOIDING PENALTY SH OULD BE VOLUNTARY AND BEFORE DETECTION OF THE CONCEALED INC OME BY THE DEPARTMENT. 11. FROM THE ABOVE DISCUSSION AND THE CITATION OF THE VARIOUS JUDGMENTS IT IS OBSERVED THAT PENALTY U/S 271 (1 )( C) CAN BE LEVIED IF THE CONCEALED INCOME IS DETECTED BY THE D EPARTMENT AS A CONSEQUENCE OF THE SEARCH. IN THIS CASE THE APPEL LANT HAD FILED THE RETURN U/S 153A ONLY AFTER THE DEPARTMENT HAD D ISCOVERED THE CONCEALED INCOME DURING THE SEARCH. THE CASE OF THE ITA NOS.4413 TO 4418/DEL./2011 5 APPELLANT FALLS WITHIN THE GENERAL PROVISIONS OF SE CTION 271(1)(C) AS WELL AS WITHIN THE EXPLANATION 5 THEREFORE THE PENALTY OF RS.16 270/- IMPOSED BY THE ASSESSING OFFICER IS LEG ALLY CORRECT AND THE SAME IS UPHELD. 4. THE GROUNDS OF APPEAL IN ALL THE APPEALS ARE AS UNDER EXCEPT THE DIFFERENCE IN THE AMOUNT OF PENALTY LEVIED FOR A PA RTICULAR YEAR :- 1. THE LD. APPELLATE AUTHORITY ERRED IN LAW AND ON FATS IN CONFIRMING THE PENALTY OF RS.1 63 507/- (ITA NO.4413/DEL/2011) LEVIED U/S 271(1)(C) ON ADDITIONA L INCOME OFFERED IN THE RETURN OF INCOME FILED BY THE APPELL ANT IN RESPONSE TO THE NOTICE U/S 153A OF THE ACT WHILE IGNORING T HAT SUCH PENALTY CANNOT BE IMPOSED ON THE BASIS OF ENTRIES I N THE BOOKS OF ACCOUNT OR DOCUMENTS / LOOSE PAPERS SEIZED IN A SEA RCH CARRIED BETWEEN 1/6/03 TO 31/5/07 NEITHER WITHIN THE GENERA L PROVISION OF SECTION 271(1)(C) NOR IN TERMS OF EXPLANATION 5. THUS THE PENALTY SO LEVIED SHOULD BE CANCELLED. 5. WHILE PLEADING ON BEHALF OF THE ASSESSEE THE LD. AR SUBMITTED THAT THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF ITAT I N ITA NO.4702/DEL/2010 FOR ASSESSMENT YEAR 2004-05 IN THE CASE OF SHRI PRE M ARORA DATED 09.03.2012. THE LD. AR ALSO SUBMITTED THAT IN THE CASE OF PREM ARORA THE SEARCH WAS ALSO CONDUCTED ON 22.11.2006 AND THE FAC TS ARE ALSO SIMILAR THEREFORE THE ISSUE IN THE PRESENT CASE IS COVERED BY THIS DECISION. 6. LD. DR RELIED ON THE ORDERS OF THE CIT (A) AND A LSO ON THE DECISION OF ITAT F BENCH MUMBAI IN THE CASE OF HARISH P. MA SHRUWALA VS. ACIT REPORTED IN (2011) 9 ITR (TRIB) 0752. ITA NOS.4413 TO 4418/DEL./2011 6 7. IN THE REJOINDER THE LD. AR SUBMITTED THAT THE FACTS OF DECISION OF HARISH P. MASHRUWALA ARE COMPLETELY DIFFERENT. SIN CE THERE IS A DIRECT JUDGMENT OF THE COORDINATE BENCH OF ITAT DELHI ON THE SAME ISSUE AND THE FACTS ARE SAME THE ASSESSEE SHOULD BE GRANTED THE RELIEF. THE LEVY OF PENALTIES DESERVES TO BE DELETED. 8. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. IN T HIS CASE SEARCH WAS CARRIED OUT ON 22.11.2006. CERTAIN DOCUMENTS / LOO SE PAPERS WERE SEIZED. ADDITIONAL INCOME FROM BUSINESS WAS DISCLOSED IN TH E RETURN OF INCOME FILED U/S 153A OF THE ACT. IN THE CASE OF PREM ARORAS C ASE ALSO SEARCH WAS CARRIED OUT ON 22.11.2006 AT THE RESIDENCE AND BUSI NESS PREMISES. LOOSE PAPERS CONTAINING INCRIMINATING DOCUMENTS WERE SEIZ ED. ADDITIONAL INCOME WAS DECLARED IN THE RETURN OF INCOME. PENALTY WAS LEVIED U/S 271(1)(C) ON THIS ADDITIONAL INCOME. ITAT HAD DELETED THE PENALTY. IN VIEW OF THIS WE FIND THAT THE FACTS OF THE CASE ARE SIMILAR TO THE ASSES SEES CASE. ITAT IN THE CASE OF PREM ARORA CITED SUPRA HAS DECIDED THE ISSUE I N RESPECT OF THE LEVY OF PENALTY U/S 271(1)(C) WHERE ADDITIONAL INCOME IS DE CLARED AND THE SEARCHES WERE CONDUCTED PRIOR TO 1 ST JUNE 2007. THE DATE OF THE SEARCH WAS THE SAME AS OF THE ASSESSEE. THE ITAT HAS DECIDED THE ISSUE AS UNDER :- 29. WE ALSO FIND THAT THE FINANCE ACT 2007 HAS IN SERTED WORDS SEARCH INITIATED UNDER SEC. 132 BEFORE THE F IRST DAY OF JUNE 2007 IN EXPLANATION 5 OF SEC. 271(1) OF THE ACT. FURTHER EXPLANATION 5A WAS INSERTED IN THE STATUTE BY THE F INANCE ACT 2007 IN RESPECT OF A SEARCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE 2007. THUS EXPLANATION 5 WILL NOT BE ITA NOS.4413 TO 4418/DEL./2011 7 APPLICABLE IN RESPECT OF A SEARCH INITIATED ON OR A FTER 1.6.2007. FURTHER THE WORDS SEARCH INITIATED UNDER SEC. 132 BEFORE THE FIRST DAY OF JUNE 2007 HAVE BEEN INSERTED BY THE FINANCE ACT 2007 W.E.F. 1.6.2007. IN OUR CONSIDERED OPINION TH E AMENDED PROVISIONS OF EXPLANATION 5 WILL BE APPLICABLE ONLY FOR ASSESSMENT YEAR 2008-09 IF ANY MONEY BULLION JEWE LLERY OR OTHER VALUABLE ARTICLE OR THING IS FOUND FROM THE P OSSESSION OF THE SEARCHED PERSON IN RESPECT WHOM SEARCHES ARE IN ITIATED ON OR AFTER 1.4.2007 TO 31.05.2007. 30. IN CASE OF A SEARCH INITIATED ON OR AFTER 1.6.2 007 AS PROVIDED IN EXPLANATION 5A THE ASSESSEE WILL BE LI ABLE FOR PENALTY/S 271(1)(C) BOTH IN RESPECT OF ASSETS AS WE LL AS ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT O R OTHER DOCUMENTS OR TRANSACTIONS. BUT NO SUCH PROVISION RE LATING TO ENTRIES WAS IN EXISTENCE IN EXPLANATION 5 PRIOR T O INSERTION OF EXPLANATION 5A IN SECTION 271(1) OF THE ACT. HENCE THE SCHEME OF ASSESSMENT TILL INSERTION OF EXPLANATION 5A AND SECTION 271AAA BY THE FINANCE ACT 2007 GAVE IMMUNITY TO T HE ASSESSEES IN RESPECT OF UNDISCLOSED INCOME BASED ON ENTRIES RECORDED IN SEIZED MATERIAL. EXPLANATION 5A SUBSTIT UTED BY THE FINANCE ACT 2009 W.R.E.F. 1.6.2007 IS REPRODUCED AS UNDER: EXPLANATION 5A. WHERE IN THE COURSE OF A SEARCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE 2007 THE ASSESSEE IS FOUND TO BE THE OWNER O F (I) 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 UTILISING (WHOLLY OR IN PART) HIS INCOME FOR ANY PREVIOUS YEAR; OR (II) ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS REPRESENTS HIS INCOME (WHOLLY OR IN PART) FOR ANY PREVIOUS YEAR WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND ITA NOS.4413 TO 4418/DEL./2011 8 (A) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN; OR (B) THE DUE DATE FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN THEN NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER T HE DATE OF SEARCH HE SHALL FOR THE PURPOSES OF IMPOS ITION OF A PENALTY UNDER CLAUSE (C) OF SUB-SECTION (1) OF TH IS SECTION BE DEEMED TO HAVE CONCEALED THE PARTICULAR S OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF S UCH INCOME. 31. FROM ABOVE DISCUSSION IT IS CLEAR THAT THE PRO VISIONS OF EXPLANATION 5 ARE APPLICABLE IN THE CASES WHERE DUR ING THE COURSE OF SEARCH INITIATED ON OR BEFORE 1.6.2007 AN Y MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG IS FOUND IN THE POSSESSION OR UNDER CONTROL OF THE ASSESSEE. IN THE CASE OF THE ASSESSEE THE SEARCH WAS CONDUCTED ON 22.11.2006 AND CASH OF RS. 1 11 45 350/- WAS FOUND FROM THE POSSESSION OF THE ASSESSEE. THE ASSESSEE HAD UNDISCLOSED COMMISSION I NCOME AS WELL AS PURCHASES AND SALES AS SEEN FROM THE STATEM ENT OF AFFAIRS MADE BY THE ASSESSEE BASED ON SEIZED MATERI AL. THE ASSESSEE HAD DRAWN CASH FLOW STATEMENT FOR THE ENTI RE PERIOD OF SIX YEARS IN ORDER TO DETERMINE UNDISCLOSED INCOME BASED ON SEIZED MATERIAL FOR EACH OF SIX ASSESSMENT YEARS. EXPLANATION 5 TO SECTION 271(1) OF THE ACT CANNOT BE INVOKED IN ASSESSMENT YEAR 2004-05 MERELY ON PRESUMPTION THAT THE ASSESSE E MIGHT HAVE BEEN IN POSSESSION OF CASH THROUGHOUT THE PER IOD COVERED BY SEARCH ASSESSMENTS. THE INCOME OFFERED TO TAX U/ S 153A FOR ASSESSMENT YEAR 2004-05 IS BASED ON ENTRIES RECORDE D IN THE SEIZED MATERIAL. UNLIKE PROVISIONS OF EXPLANATION 5 A THE PROVISIONS OF EXPLANATION 5 CANNOT BE INVOKED IN A SSESSMENT YEAR 2004-05 IN RESPECT OF ENTRIES RECORDED IN SEIZ ED MATERIAL. THUS INVOKING OF EXPLANATION 5 IN ASSESSMENT YEAR 2 004-05 IS BASED ON PRESUMPTIONS SURMISES AND CONJECTURES. IT IS SETTLED LAW THAT SUSPICION HOWSOEVER STRONG IT CANNOT TAKE PLACE OF ACTUAL EVIDENCE AND HENCE THE CONTENTION OF THE REV ENUE THAT ITA NOS.4413 TO 4418/DEL./2011 9 ASSESSEE WAS IN POSSESSION OF CASH THROUGHOUT THE P ERIOD OF SIX ASSESSMENT YEARS HAS TO BE REJECTED. IN VIEW OF ABO VE DISCUSSION WE ARE OF THE CONSIDERED OPINION THAT EV EN THE AMENDED PROVISIONS OF EXPLANATION 5 CANNOT BE APPLI ED IN ASSESSMENT YEAR 2004-05. CONSEQUENTLY PENALTY U/S 2 71(C) CANNOT BE IMPOSED BY INVOKING EXPLANATION 5 OF THE ACT IN ASSESSMENT YEAR 2004-05 IN RESPECT OF CASH FOUND IN PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2007-08. 32. NOW COMING TO THE DECISIONS RELIED BY LD CIT (D R) IN THE CASE OF AJIT B ZOTA (SUPRA) AND IN KIRIT DAHY ABHAI PATEL (AHD)(SUPRA) WE FIND THAT THESE DECISIONS ARE DISTI NGUISHABLE ON FACTS AND HENCE NOT APPLICABLE. 33. IN VIEW OF ABOVE DISCUSSIONS IT IS HELD THAT PE NALTY U/S SECTION 271(1)(C) IS NOT IMPOSABLE ON THE FACTS AN D IN THE CIRCUMSTANCES OF CASE DISCUSSED IN DETAIL AS ABOVE. EXPLANATION 5 IS NOT APPLICABLE FOR THE REASONS MENTIONED ABOVE IN OUR DECISION. THEREFORE LD. CIT(A) WAS NOT JUSTIFIED I N CONFIRMING THE PENALTY U/S 271(1)(C) OF THE ACT. THE ASSESSING OFFICER IS THEREFORE DIRECTED TO DELETE THE PENALTY. FACTS BEING THE SAME WE CONSIDER THESE APPEALS OF THE ASSESSEE AS COVERED BY THE DECISION OF ITAT IN THE CASE OF PAWAN ARORA. K EEPING THESE FACTS IN VIEW WE SET ASIDE THE ORDERS OF THE AUTHORITIES BE LOW FOR LEVYING THE PENALTY AND ALLOW THE GROUND IN ALL THE YEARS. 9. IN THE RESULT ALL THE SIX APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 31 ST DAY OF JULY 2012. SD/- SD/- (R.K. GUPTA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : THE 31 ST DAY OF JULY 2012 TS ITA NOS.4413 TO 4418/DEL./2011 10 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A)-I NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.