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TMI Blog2019 (3) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... und that assessee has declared short term capital gains - AO on further enquiry found that there is a difference in the purchase cost and the sale price as per circle rate, therefore, Section 50C was applied against the assessee. The assessing officer, however, accepted the return of income. It would, therefore, show that assessing officer accepted the return of income under section 153A and has not pointed-out, if any, material was recovered during the course of search in connection with income declared on account of short term capital gains. Therefore, there is no question of considering it to be a case of concealment of income or furnishing inaccurate particulars of income because the addition was made by applying deeming provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018, for the assessment year 2010-2011, challenging the levy of penalty under section 271(1)(c) of the Income Tax Act, 1961. 2. Briefly the facts of the case are that original return of income was filed by the assessee on 22nd October, 2010, declaring total income of ₹ 5,44,730/-. A search and seizure operation was conducted under section 132 of the Income Tax Act on 9th October, 2013 on the business premises of the assessee comprising Shubhkamna Buildtech Group of cases. Notice under section 153A was issued and the assessee, in response thereto, declared total income of ₹ 14,19,729/-. The assessing officer noted that in the return filed under section 153A, the assessee has shown income from short term capital gains to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Act on 25th February, 2015 for compliance on 14th May, 2016. But, no compliance was made by assessee, therefore, fresh notice was issued on 21st June, 2016 for levy of the penalty. The assessing officer, vide separate order, levied the penalty under section 271(1)(c) of the Income Tax Act, 1961 which is confirmed by the Learned CIT(A). 3. Learned Counsel for the Assessee submitted that prior to that the A.O. issued show cause notice before levy of the penalty under section 274 read with section 271 of the Income Tax Act, Dated 30th March, 2016, in which, the assessing officer has mentioned as under : why penalty u/s.271(1)(c) of IT Act may not be imposed upon you. Why penalty u/s 271B of IT Act may not be imposed upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013) 359 ITR 523 (Del.). 5. After considering the rival submissions, I am of the view that penalty is not leviable in the matter. The assessing officer in the assessment order has mentioned that assessee was subjected to search and that assessment order was passed under section 153A of the Income Tax Act, 1961. The assessing officer did not mention anything in the assessment order, if any, incriminating material was found against the assessee during the course of search, so as to make the impugned addition account of short term capital gain. The assessing officer on the basis of the return of income filed by the assessee under section 153A, found that assessee has declared short term capital gains in a sum of ₹ 8,75,000/-. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation 5 to section 271(l)(c) could not arise in the facts and circumstances of this case. The deletion of penalty was justified. 5.1. Further it may be noted that the assessment order has been passed on 30th March, 2016 under section 153A of the Income Tax Act, 1961. Learned Counsel for Assessee referred to the show cause notice issued before levy of the penalty Dated 30th March, 2016 i.e., on the same day on which assessment order have been passed. The said notice is reproduced above, in which, the assessing officer has not mentioned as to under which limb of Section 271(1)(c) of the Income Tax Act, 1961, whether for concealment of income or filing inaccurate particulars of income, such notice have been issued. Further, the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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