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2019 (3) TMI 329 - ITAT AHMEDABADAssessment u/s 153A - penalty u/s 271(1)(c) - Disclosure made u/s 132(4) in the search proceedings - difference between the income declared in the return originally filed prior to search qua the return filed subsequently in compliance of notice u/s 153A in pursuance of search action - Explanation 5/ Explanation 5A to Section 271(1)(c) reference - HELD THAT:- The identical issue has been squarely considered by the co-ordinate bench in the case of same combination in Vijay K. Shah vs. ITO [2017 (4) TMI 1426 - ITAT AHMEDABAD] Explanation 5A to Section 271(1)(c) of the Act deems act of concealment even before the return is filed. Thus, having regard to the statutory presumption of concealment in search cases under Explanation 5A, we do not subscribe to the fundamental plea on behalf of the assessee that penalty under s. 271(1)(c)can be invoked only with reference to return of income filed after search and where there was no addition over and above the income declared by the assessee in the return filed under s.153A of the Act (notwithstanding the fact that such return filed after search includes additional nature based on incriminating material and oral evidence under s.132(4). Pertinently, the plea raised on behalf of the assessee, if admitted, would render provisions of Section 271AAA/271AAB of the Act otiose and infructuous as noted in the case of Vijay K. Shah (supra). Plea raised on behalf of the assessee that Section 153A of the Act opens with a non obstante clause as noted earlier, Section 271AAA and Explanation 5A to Section 271(1)(c) of the Act deems culpability in appropriate cases even before the return is filed in search cases. Therefore, substitution of return originally filed under s.139 of the Act by subsequent return under s.153A of the Act has no impact on the legal fiction towards concealment enjoined by Explanation 5A of the Act. Therefore, the non obstante provision in Section 153A of the Act does not come in the way of penalty proceedings in search cases at all. Thus, the plea of the assessee for applicability of penalty provisions qua the return of income which may hold good under the normal provisions will not apply to special provisions enacted in search cases. In view of the special provisions enacted for imposition of penalty in search cases, the default under s.271(1)(c) of the Act gets triggered towards undisclosed income immediately on search action pending filing of return under s.139/s.153A of the Act albeit subject to escape roots as provided in Section 271AAA/271AAB/Explanation 5A to Section 271(1)(c) of the Act etc. See PRASANNA DUGAR VERSUS COMMISIONER OF INCOME TAX, CENTRAL-III, KOLKATA [2015 (8) TMI 477 - SUPREME COURT] - Decided against assessee.
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