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2010 (2) TMI 1189 - AT - Income TaxPenalty u/s 271(1)(c) - return filed in response to notice u/s 153A - eligibility to immunity prescribed in Expln. 5. - HELD THAT:- In the instant case, assessees filed original return prior to the search u/s 132. Assessees disclosed an additional income during the search and filed the return in response to notice under s. 153A and honoured the said disclosed additional income. Undisputedly, the said income was neither recorded in the books of account nor disclosed to the CIT/Chief CIT before the search nor the source of the same explaining the manner of deriving was provided. We following the decision of Third Member Bench in the case of Kirit Dahyabhai Patel [2009 (6) TMI 654 - ITAT AHMEDABAD-B] have come to the conclusion that since additional income declared in returns filed in response to notice u/s 153A does not fall under category of return mentioned in Expln. 5 to s. 271(1)(c), assessees were not entitled to immunity from penalty CIT(A) was not justified in deleting the penalty levied by the AO on additional income declared in returns filed in response to notice u/s 153A without examining that assessees had fulfilled the requirement of immunity prescribed in Expln. 5. No such argument has been advanced before us either that assessees were fulfilling these requirements of immunity to grant benefit under Expln. 5. We thus while setting aside the first appellate order to this extent, restore the penalty levied by the AO on such additional income declared in returns filed in response to notice under s. 153A. The grounds are accordingly allowed. Consequently the appeals are allowed. In the result, appeals are allowed.
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