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4. The matter was carri ed i n appeal before the Ld.CI T( A) where the asse ssee agi tated a gai nst the l ev y of penal t y stati ng that si nce the undi scl osed i ncome was vol untari l y di scl osed i n the return fi l ed i n re sponse to noti ce u/s 153C whi ch was accepted by the A.O. al so wi thout maki ng any addi ti on and the provi si ons of secti on 153A, 153B and 153C bei ng a compl ete code i n themsel ves, no reference coul d be made u/s 139 of the Act for the purpose i mposi ti on of penal t y. Besi des, i t was al so argued that the Expl anati on 5A to secti on 271( 1 ) ( c) of the Act was al so not ap pl i cabl e i n assessee's case because as the pri mar y condi ti on for appl i cabi l i t y of the same was that the search action shoul d have been carri e d out on the ass essee whi ch was not there i n the case of the assessee, si nce i t was onl y subjected to surve y. It was al so emphasi zed that the A.O. had not speci fi cal l y set out in the ass essment order that such proceedi ngs were i ni ti ated for the offence of conceal ment of i ncome, whereas when the penal t y was i mposed it was justi fi ed on the s trength of the pr ovi si ons of Expla nati on-5A to secti on 271( 1) ( c) of the Act, thus maki ng the i mposi ti on of penal t y bad i n l a w. The Ld.CI T( A) re jected the contenti ons of the assessee sta ti ng that when the return of i n come was fi l ed vol untari l y u/s 139( 1) of the Act, the sai d profi ts from out of books sal e had not been di scl osed and di scl osure of the same on subsequent s earch acti on, when the i ncri mi nati ng materi al was foun d, coul d not be consi dered as vol untari l y di scl osure of i ncome. Further the Ld.CI T( A) hel d that for the Expl anati on-5A to secti on 271( 1) (c) to be attracted, i t was not necessar y that the search acti on be carri ed out on the assessee and the onl y requi rement was search and sei zure operati ons reveal i ng the i nformati on about any assessee bei ng the o wner of any i ncome whi ch has not been decl ared i n the return fi l ed for such year. The Ld.CI T( A) al so hel d that the A.O. al l al ong found the assessee fi rm gu i l t y of conceal m ent of i ncome p oi nti ng out the sai d facts i n the sho w cause noti ce i ssued u/s 274 of the Act and al so i nformi ng the assessee about the provisi ons contai ned i n Ex pl anati on-5A to secti on 271( 1) ( c) of the Act before i mposi ng penal t y. The Ld. CI T( A) stated tha t the noti ce for i mposi ti on of penal t y menti oned the offence of conceal ment of i ncome and penal t y was subsequentl y i mposed for conceal ment of i ncome and, therefore, the acti on of the A.O. i n i mposi ng the penal t y coul d not be faul ted. Accordi ngl y, the order of the A.O. l ev yi ng penal t y was uphel d.

12. I n vi e w of the above we di smi ss the contenti on of the assessee that si nce the surrendered i ncome stood discl osed i n the return fi l ed u/s 153C of the Act, the ass essee coul d not be charged wi th havi ng conceal ed any parti cul ars of i ncome.

13. The ne xt content i on rai sed by Ld. counsel for assessee was that the Exp l anati on-5A to se cti on 271( 1) ( c) i n any case was not appl i ca bl e si nce no sea rch was conduct ed on the assessee who was i n fact subjected to surve y acti on onl y and for the appl i cabi l i t y Expl anati on-5A it was essential perqui si te that t he search be co nducted on the assessee i n the course of wh i ch asset, bul l i o n, etc. are found whi ch are cl ai med by the assessee to have been acqui red out of earl i er undi scl osed i ncomes.

16. The Ld. counsel for assessee, on the other hand, rel i ed upon the deci si on of the I . T.A. T. H yderabad Bench in the case of Raghuveer Si ngh Vs. DCI T in I TA No.522 & 523/HYD/2015 dated 18.11.2015.

17. We have heard the ri val submi ssi ons. We do not fi nd any meri t in thi s contenti on of the Ld.Counsel for the assessee al so that no penal t y as per Expl anati on 5A to secti on 271( 1) ( c) of the Act was levi abl e i n the present case si nce the assessee was not subjected to search proceedi ngs as per secti on 132 of the Act. Undi sputedl y assessment i n the present case was framed on the assessee u/s 153C of the Act ,on account of i ncri mi nati ng documents pertai ning to i t found duri ng search conducted on other persons. A b are perusal of the pr ovi si ons of the s ai d secti on reveal s that the such assesses,though not actual l y subjected to se arch acti on u/s 132 of the A ct,are to be treat ed/deemed as s ubjected to the same. Secti on 153C i s reproduced hereunder for cl ari t y:

Provided that in the case of such other person, the reference to the date of initiation of the search under section 132 or making or making of requisition under section 132A in the second proviso to sub-section (1) of section 153A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the assessing officer having jurisdiction over such other person."

18. The fi rst provi s o to the secti on speci fi cal l y pro vi des that the reference to the date of search i n such cases i s to be the date of recei vi ng the books of accounts or documents or assets sei zed or requi si ti oned by the assessi ng offi cer havi ng juri sdi cti on over the person searched. Thi s reference to the date of search provi ded i n these cases makes i t ampl y cl ear that assessees subjected to assessment u/s 153C of the Act are to be treated as searched u/s 132 of the Act. Our vi e w i s strengthened by the i ncl usi on of the provi si ons of secti on 153C i n Chapter XI V of the Act under the speci fi c headi ng "Assessment i n case of search or requi si ti on". The Ld.Counsel for t he assessee was confronted wi th t his duri ng the course of heari ng, to whi ch no rebuttal was gi ven. Further i t i s because persons assessed u/s 153C of the Act are treated as deemed to be searched, that the provi si ons of Expl anati on-5A to secti on 271( 1) © ,l ev yi ng penal t y i n search cases,are so worded so as to penal i ze al l assesses rel ati ng to whom mone y,bul l i on , je wel er y,or documents etc. are found duri ng search,i rrespecti ve of the fact that the person was actual l y searched or not. The Ld.CI T( A) ,has we hol d,ri ghtl y hel d that the onl y requi rement for the appl icabi l i ty of Expl anati on-5A i s the conduct of search after the fi rst da y of June, 2007 reveal i ng i nformati on about any assessee bei ng the o wner of any i ncome whi ch has not been decl ared i n the return fi l ed for that year and i t therefore covers assesses assessed u/s 153C of the Act. The I . T.A. T. i n the case of M/s Ra jesh D.Dedhi a ( supra) has held so whi l e addressi ng the i ssue rai sed in the Mi scel l aneous Appl i cati on before i t, whether the pen al t y under the p rovi si ons of Expl anati on-5A to secti on 271( 1) ( c) of the Act coul d be i mposed where the assessee was covered by surve y u /s 133A and not by search acti on u/s 132 of the Act. The I TAT i n the sai d deci si on had referred to the d eci si on of the I . T.A. T. Kol kata Be nch i n the case of DCI T Vs. Sri Shyam Sunder Dhanka i n I TA No.1869 & 1870/Kol /2013 wherei n i t was hel d that there i s no requi rement for l ev y of penal t y under the provi si ons of Expl anati on-5A to secti on 271( 1) ( c) of the Act that the part y shoul d be searc hed u/s 132 of the Act. The rel evant fi ndi ngs of the I .T.A. T. at paras 4 .2 to 4.3 of the order are as under: