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7. In his rival submissions, the learned Counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the assessee disclosed all the relevant facts relating to its income in the revised return which was filed within time and no tax was evaded and no income was concealed. It was further submitted that the Department in the grounds of appeal challenged the penalty levied on income surrendered mainly on the ground that immunity granted in the Explanation (5) of section 271(1)(c) of the Act will not be available to the assessee for the reason that taxes on such income was not paid before the filing of original return. It was stated that the provisions of Explanation (5) of section 271(1)(c) of the Act do not apply to the assessee's case because clause (2) of the said section does not say that tax along with the interest should be deposited before filing of the return. The reliance was placed on the judgment of Hon'ble Jurisdictional High Court in the case of CIT vs. Nem Kumar Jain [2006] 202 CTR 328 (All). It was contended that the assessee deposited the tax before filing the revised return of income on 26/12/2007, therefore, no penalty was lelviable on the income disclosed by the assessee in the revised return. It was further contended that the provisions of section 271(1)(c) of the Act are not applicable to the assessee's case because the assessee had shown the income in the revised return under the provisions of section 139(5) of the Act which was a valid return and has been accepted by the Assessing Officer and that prior to the filing of revised return assessment proceedings for the assessment year 2006-07 had not been commenced and the learned CIT(A) had duly taken note of this fact while deleting the penalty. The reliance was placed on the order of Hon'ble Jurisdictional High Court in the case of Cheap Cycle Stores vs. CIT [2006] 281 ITR 166 (All). Reliance was also placed on the following case laws:

(i) CIT vs. Radha Kishan Goel [2005] 278 ITR 454 (All)

(ii) CIT vs. Mahendra C. Shah [2008] 299 ITR 305 (Guj)

(iii) CIT vs. Nem Kumar Jain [2005] 202 CTR (All) 328

(iv) CIT vs. E. V. Balashanmugham [2006] 286 ITR 626 (Mad)

8. We have considered the rival submissions and carefully gone through the materials available on the record. In the present case it is not in dispute that the assessee filed the original return of income u/s 139(1) of the Act on 24/11/2006 and subsequently the assessee revised the return of income u/s 139(5) of the Act on 26/12/2007. The said revised return was a valid return and had been considered while framing the assessment. In the revised return, the assessee declared the following income and included the said income for tax purposes and paid the tax thereon:

However the learned CIT(A) deleted all the additions except an estimated addition on account of gross profit amounting to `2,89,351/- vide order dated 18/06/2008. The said addition of `2,89,351/- was confirmed by the I.T.A.T. vide its order dated 26/09/2008. Therefore, it can be said that all those additions, which were made by the Assessing Officer in the income declared by the assessee in its revised return, had been deleted except the estimated addition amounting to `2,89,351/- made by applying the gross profit rate on the undisclosed sales. In the present case, the Assessing Officer levied the penalty u/s 271(1)(c) of the Act in respect of those income which found place in the revised return but not in the original return of income filed by the assessee. The Assessing Officer invoked the provisions of Explanation (5) to section 271(1)(c) of the Act. Now the question arises as to whether the income disclosed by the assessee in the valid revised return can be considered a concealed income for the purpose of section 271(1)(c) of the Act. In this regard, the Hon'ble Jurisdictional High Court in the case of Cheap Cycles Store vs. CIT [2006] 281 ITR 166 (All) held as under:

"That the assessee having filed the original return within the statutory period as provided under section 139(1) of the Act, it was entitled to file a revised return under the provisions of section 139(5) of the Act. Thus, the revised return filed under section 139(5) of the Act was a valid return and was to be taken into consideration. No concealment having been found in the revised return, the penalty proceedings in respect of the income declared in the return originally filed could not have been taken as the concealment had not yet been detected by the Assessing Officer up till the time the revised return was filed. Penalty could not be imposed under section 271(1)(c)."