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TMI Blog2019 (8) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) order. Thus the issue arises whether the penalty can be levied under section 271 (1) (c) r.w. the explanation 5A of the Act merely on the basis of the statement furnished under section 132(4) of the Act. There cannot be any penalty under explanation 5 A to section 271(1)C of the Act merely on the basis of the statement furnished under section 132(4) of the Act, until and unless it supported with the incriminating document. Accordingly, we hold that there cannot be any penalty under section 271(1)C of the Act in the given facts and circumstances. Hence the ground of appeal of the assessee is allowed. - IT(ss)A No(s) 310, 311, 312, 313, 314/Ahd/2014 2005-06 To 2009-10 - - - Dated:- 25-6-2019 - Shri Waseem Ahmed, Accountant Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirming the penalty imposed by the AO on account of the difference in the income declared in return filed u/s 139 of the Act, and income disclosed in the return filed u/s 153A of the Act. 2. Briefly stated facts are that a search was carried out u/s 132 of the Act in the R.K. Construction group of cases including the assessee dated 09-04-2010. During the search, proceeding assessee has admitted undisclosed income of ₹ 7,93,350/- in his statement recorded u/s 132(4) of the Act. The assessee filed return of income at ₹ 7,53,820/- which is including the undisclosed income of ₹ 7,93,350/- after claiming the expenses of ₹ 87,781/- in response to the notice issued u/s 153A of the Act. 2.1 The AO fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search had not taken place, the income disclosed by the assessee would have remained untouched. 2.4 Accordingly, the AO levied penalty on account of the concealment of income u/s 271(1)(c) of the Act amounting to ₹ 2,16,245/- only. 3. The aggrieved assessee preferred an appeal before the Ld. CIT (A). The assessee before the Ld. CIT (A) submitted as under: 1) There was no incriminating material found during the search, which indicates the undisclosed income. There was also no reference made by the AO towards any seized material suggesting the unaccounted income. Thus the Addition made by the AO only based on statement recorded u/s 132(4) of the Act cannot be treated as conclusive evidence to impose a penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai Patel Vs. ACIT reported in 80 taxmann.com 162. 6. On the other hand, the Ld. DR vehemently supported the order of the authorities below. 7. We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the instant case arises whether there will be any penalty under section 271(1)(c) of the Act on the income declared by the assessee in return filed under section 153A of the Act. 7.1 From the preceding discussion, we note that the assessee during the search proceeding has admitted income in the statement furnished under section 132(4) of the Act. As such, on perusal of the order of the authorities, we note that there was no reference made to any incriminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the date of 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.] The above provision reveals that the penalty under Explanation 5A to section 271 (1)(c), the of the Act can be attracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of assessment framed under section 153A. As no incriminating documents were found during the course of search, therefore, Explanation 5A to section 271(1)(c) is not applicable. Accordingly, the penalty was to be deleted. From the above order, it is clear that there cannot be any penalty under explanation 5 A to section 271(1)C of the Act merely on the basis of the statement furnished under section 132(4) of the Act, until and unless it supported with the incriminating document. Accordingly, we hold that there cannot be any penalty under section 271(1)C of the Act in the given facts and circumstances. Hence the ground of appeal of the assessee is allowed. In the result, the appeal of the assessee is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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