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2012 (6) TMI 480 - AT - Income TaxPenalty under section 271(1)(c) - Search - assessee had filed the return declaring additional income on the basis of the seized papers and documents and not on the basis of cash found - Held that:- The return of income filed in response to notice u/s 153A has been accepted by the assessing officer, thus it can neither be a case of concealment of income nor furnishing of inaccurate of particulars of such income - penalty u/s 271(1)(c) is not imposable where there is neither concealment of income nor furnishing of inaccurate particulars of income in return filed u/s 153A as decided in Commissioner of Income-tax Versus SAS Pharmaceuticals [2011 (4) TMI 888 (HC)] Provisions of Explanation 5 of section 271(1)(c) are applicable in the cases where during the course of search initiated on or before 1.6.2007 any money, bullion, jewellery or other valuable article or thing is found in the possession or under control of the assessee whereas in the case of the assessee the search was conducted on 22.11.2006 and cash of Rs. 1,11,45,350/- was found from the possession of the assessee - Explanation 5 cannot be invoked in assessment year 2004-05 merely on presumption that the assessee might have been in possession of cash throughout the period covered by search assessments - The income offered to tax u/s 153A for assessment year 2004-05 is based on entries recorded in the seized material, thus Explanation 5 cannot be invoked in assessment year 2004-05 in respect of entries recorded in seized material - in favour of assessee.
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