JUDGMENT Rajes Kumar, J.
1. Tribunal has referred the following question under Section 256(1) of the Income Tax Act, 1961, (hereinafter referred to as "the Act") for opinion of this Court relating to the assessment year 1989-90:
"Whether on the facts and circumstances of the case, I.T.A.T. was justified in holding that conditions laid down in explanation 5 (2) to Section 271(1)(c) were fulfilled and no penalty was leviable Under Section 271(1)(c)?"
2. The brief facts of the case are follows:
3. A search was conducted at the residential as well as business premises of the assess Opposite party (hereinafter referred to as "Assessee") on 30.08.1988, during the course of which cash, jewellery and other valuable articles and things were found and seized. It appears that during the course of the assessment proceedings to settle the dispute on agreed basis assessee moved an application before CIT on which direction was issued by Commissioner of Income-tax, Kanpur, in which it was remarked that penalty proceedings under Section 271(1)(c) of the Act may not be applicable where additional income is covered by Explanation 5 of Section 271(1)(c) of the Act as the said income stood surrendered in the statement under Section 132(4) of the Act for which returns were due to be filed within the statutory period. Assessment was completed on an income of Rs. 24,43,980/-, which included unexplained cash of Rs. 1,65,000/- and unexplained jewellery of Rs. 22,63,557/-. The unexplained income as stated above was taken in assessment in accordance with the directions issued by Commissioner of Income Tax. Thereafter, the assessing authority examined the mater and concluded that the provisions of Explanations 5 to Section 271(1)(c) of the Act were not applicable to the present case as all the ingredients of Explanation 5(2) were not fulfilled and consequently a penalty of Rs. 12,63,100/- was imposed. The said penalty order was also confirmed by the Commissioner of Income Tax (Appeals) in an appeal filed by the assessee. Assessee filed the second appeal before the Tribunal. Tribunal allowed the appeal and deleted the penalty. Tribunal held that the provisions of Explanation 5 (2) of Section 271(1)(c) of the Act were full attracted on the facts and circumstances of the case.
4. Heard Sri A.N. Mahajan, learned Standing Counsel and Sri Shakeel Ahmad, learned counsel for the assessee.
5. Learned Standing Counsel submitted that Explanation 5 stood added under Section 271(1)(c) of the Act by the Taxation Laws (Amendment) Act, 1984, w.e.f. 01.10.1984, which deals with the penalty in the cases of search. He submitted that under the Explanation (5) any money, bullion, jewellery or other valuable article or thing which are found at the time search are deemed to be concealed income unless such income is recorded in the books of account or declared or disclosed to the Chief Commissioner of Commissioner before the date of search or during the course of search makes statement under Sub-section 4 of Section 132 of the Act that any money, bullion, jewellery or other valuable articles or things found in his possession or in his control has been acquired out of his income which has not been disclosed so far in his return of income to be furnished before the expiry of the time specified in Sub-section 1 of Section 139 of the Act and also specifies in the statement the manner in which such income has been derived and pays the tax, together with the interest, if any, in respect of such income. He submitted that though the assessee has made the statement recorded under Section 132(4) of the Act that the unexplained cash and unexplained jewellery were undisclosed income but in the statement the manner in which such income has been derived has not been disclosed and, therefore, Explanation 5(2) is not applicable in the present case and the Tribunal has committed an error in holding that Explanation 5(2) of Section 271(1)(c) of the Act was attracted.
6. Learned Counsel for the assessee submitted that Explanation 5 (2) should be read in totality and in the context of the object for which Explanation 5 has been added. He submitted that object of Explanation 5 is not to allow the opportunity to the assessee to disclose the money, bullion and other valuable articles or things found in his possession during the course of search in the return which is to be filed subsequently, however, by Clause (2) of Explanation 5 immunity has been given in case, if the assessee made the statement admitting that such money, bullion, jewellery or other valuable articles or thing acquired out of the income which is undisclosed to avoid further litigations and settle the issue on agreed basis. He submitted that in substance under Section 5(2) the main requirement is the admission in the statement that the items found are acquired from undisclosed income. He submitted that the manner in which such income has been derived may not be given much importance. He further submitted that under Section 132(4) of the Act statement is being recorded by the officers and assessee only states what the officer ask or put the query. In case, if the officer did not put any question with regard to the manner in which such income has been derived, it was not expected from the assessee to state the manner in which such income has been derived and in case if manner has been disclosed subsequently during the course of assessment if should be considered for the purpose of Section 5(2). He submitted that in the return and during the course of assessment proceedings it was disclosed that the income was derived from other source, which amount to the proper compliance of Explanation 5 (2).
7. Having heard learned counsel for the parties, we have given anxious consideration to the submissions and also perused the order of the Tribunal and the authorities below. Explanation 5 of Section 271(1)(c) of the Act, which has been added by the Taxation Laws (Amendment) Act, 1984 w.e.f. 01.10.1984 reads as follows:
"Where in the course of a search under Section 132, the assessee is found to be the owner of any money, bullion, jewellery or other valuable article or thing (hereinafter in this Explanation referred to assets) and the assessee claims that such assets have been acquired by him by utilizing (wholly or in part) his income--
(a) for any previous year which has ended before the date of the search, but the return of income for such year has not been furnished before the said date or, where such return has been furnished before the said date, such income has not been declared therein; or
(b) for any previous year which is to end on or after the date of the search, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of the search, he shall, for the purposes of imposition of a penalty under Clause (c) of Sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income, unless (1) such income is, or the transactions resulting in such income are recorded--
(i) in a case falling under Clause (a), before the date of the search; and
(ii) in a case falling under Clause (b), on or before such date, in the books of account, if any, maintained by him for any source of income or such income is otherwise disclosed to the Chief Commissioner before the said date; or (2) he, in the course of the search, makes a statement under Sub-section (4) of Section 132 that any money, bullion, jewellery or other valuable article or thing found in his possession or under his control, has been acquired out of his income which has not been disclosed so far in his return of income to be furnished before the expiry of time specified in the statement the manner in which such income has been derived and pays the tax, together with interest, if any, in respect of such income."
Section 132(4) of the Act reads as follows:
"The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act.
Explanation : For the removal of doubts, it is hereby declared that the examination of any person under this sub-section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act."
8. From the perusal of the Explanation 5, it is evident that the circumstances, which otherwise did not attract the penalty provisions of Section 271(1)(c) of the Act, now a deeming provision was introduced as to attract the penalty provisions to those cases as well. But to an exception is provided in Sub-section (2) of the Explanation where deeming provision will not apply if during the course of search assessee makes the statement under Sub-section (4) of Section 132 of the Act that the money, bullion, jewellery etc. found in his possession has been acquired out of his income which has not been disclosed so far in his return of income to be furnished before the expiry of time specified in Section 132 of the Act and also specifies in the statement the manner in which such income has been derived and pays the tax together with the interest, if any in respect of such income. The exception appears to be to provide an opportunity to the assessee to make a clean and fair confession and to surrender his income and also to deposit the tax and interest thereon which may result to a agreed assessment. The paramount intention appears to be that in case of fair and clean confession and surrender of his income during the course of search further litigation may be avoided and the revenue may get the tax and interest etc. at an earlier and the assessee may be saved from further litigation.
9. Under Section 132(4) of the Act, it is the authorised officer, who examine on oath any person, who is found to be in possession or control of any books of account, document, money, bullion, jewellery or other valuable article or thing, therefore, it is on the authorised officer to record the statement in his own way. Therefore, it is not expected from the person to state those things, which are not asked by the authorised officer.
10. It is a matter of common knowledge, which can not be ignored that the search is being conducted with the complete team of the officers consisting of several officers with the police force. Usually telephone and all other connection are disconnected and all ingrace and outgrace are blocked. During the course of search person is so tortured, harassed and put to a mental agony that he looses its normal mental state of mind and at that stage it can not be expected from a person pre-empt the statement required to be given in law as a part of his defence.
11. In these circumstances, we are of the view that under Section 132(4) of the Act unless authorised officer puts a specific question with regard to the manner in which income has been derived, it is not expected from the person to make a statement in this regard and in case if in the statement the manner in which income has been derived has not been stated but has been stated subsequently, amounts to the compliance of Explanation 5(2) of the Act. We are also of the opinion that in case if there is nothing to the contrary in the statement recorded under Section 132(4) of the Act, in the absence of any specific statement about the manner in which such income has been derived, it can be inferred that such undisclosed income was derived from the business, which he was carrying on or from other source. The object of the provision is achieved by making the statement admitting the non-disclosure of money bullion, jewellery etc. Thus, we are of the opinion that much importance should not be attached to the statement about the manner in which such income has been derived. It can be inferred on the facts and circumstances of the case, in the absence of anything to the contrary. Therefore, mere non-statement of manner in which such income was derived would not make the Explanation 5 (2) inapplicable.
12. For the reasons stated above, we are of the considered view that there is no error in the order of Tribunal and the same is upheld.
13. The question referred hereinabove is answered affirmative, i.e. in favour of the assessee and against the Revenue.