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TMI Blog2022 (12) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in a manner that the said income was declared during revised return before finding by the revenue. So, considering the revised return of the assessee there is no concealment of inaccurate particular of income. He relied on the order of the Coordinate Bench of the ITAT Jaipur. [ 2019 (3) TMI 2008 - ITAT JAIPUR] - Further the ld. Sr. DR has not able to produce any contrary judgment related to the submission of the ld. Counsel. Accordingly, the penalty levied by the ld. is quashed. - Decided in favour of assessee. - I.T.A. No. 58/Asr/2021 - - - Dated:- 8-12-2022 - DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER Appellant by Sh. R.K. Gupta, CA Respondent by Sh.Rajiv Wadhera, Sr.DR. ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued on dated 13.09.2018. The ld. AO did not consider the revised return and addition was made on basis seized documents during the search. The tax was computed on concealed income and accordingly the penalty was levied amount to Rs.3,00,432/-. The assessee filed an appeal before the ld. CIT(A) against the order of the ld. AO. The assessee had the grievance related to the levy of penalty u/s 271(1)(c) on the ground which was declared in revised return, after search, but before the issuance of the notice u/s 153A. The ld. CIT(A) upheld the order of the ld. AO. 4. The aggrieved assessee filed an appeal before us. 5. During hearing the ld. Counsel filed a written submission in paper book which is kept in the record. The ld. Counsel first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther mentioned that the annexure A-21 was duly annexed in paper book running page no. 1.It is clearly indicated that the said property which was declared in the revised return was not the incriminating material during the search. Accordingly, the argument of the ld. Counsel is that the revenue has not pointed out the mistake of the assessee for declaring in the income from short term capital gain. In his argument he further supported the paper book page no. 9, the computation filed with the return u/s 139(1) were the deduction of TDS amount of Rs.58,000/- related to transaction Rs.58 lacs for sale of property which was declared in return and allowed for credit. It is mere mistake of the accountant who had filed the original return of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8. We heard the rival submission and relied on the documents available in the record. The entire issue is precisely depending on the observation made by the revenue during search. In annexure A-21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested not to impose penalty u/s 271(1)(c) of the IT Act. The ld. AO imposed the penalty by invoking the Explanation 5A to section 271(1)(c) of the Act, which has been confirmed by ld. CIT (A) by considering the judgment of Hon ble Supreme Court in the case of MAK Data Pvt. Ltd. (supra). But for imposing the penalty under Explanation 5A on the basis of statement recorded during the course of search, it is necessary to be found incriminating documents and is to be considered at the time of assessment framed under section 153A of the Act. The issue has been considered by various High Courts as well as by ITAT as relied upon by the assessee, which are squarely applicable to the case of the assessee. As no incriminating documents were found duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such. Following, the decisions discussed in paras 4.4 the penalty levied on this account under section 271(1)(c) of the Income Tax Act is not sustainable and accordingly the same stands as cancelled. Accordingly, this ground of appeal 1 to 6 is allowed. 8.1 Considering the catena of the judgment respectfully submitted by the ld. Counsel for assessee the whole issue is depicted in a manner that the said income was declared during revised return before finding by the revenue. So, considering the revised return of the assessee there is no concealment of inaccurate particular of income. He relied on the order of the Coordinate Bench of the ITAT Jaipur. Further the ld. Sr. DR has not able to produce any contrary judgment related t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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