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2019 (12) TMI 1209 - ITAT DELHILevy of penalty u/s 271(1)(c) - as contended that the instant case of the assessee is covered under the provisions of Section 271AAA - HELD THAT:- Since in the present case search was conducted on 30.7.2009, hence section 271AAA is applicable for the assessment year 2010-11 only as the date of filing the return of income under sub-section (1) of section 139 for such year has not expired before the date of search. Explanation 5A(b) to section 271(1)(c) was applicable for the assessment years 2005-06, 2006-07 and 2007-08 as the date for filing the returns has already been expired and the assessee has not declared this income in the returns. From the assessment orders, we find that the assessee has not declared the surrendered income in the returns filed in response to the notice issued u/s 153A(1)(a). Thus, the submissions of the ld. AR arguing that the income surrendered has been reflected/assessed is not correct on facts. Rather, it is the addition made by the Assessing Officer based on the material found and seized during the course of search. The assessee has not declared any income in the returns filed in response to the notice issued u/s 153A(1)(a) more than what has been declared in the regular returns.The addition has been made by the revenue based on the seized material. The due date of filing of return has already been expired. AR contention that the presidential assent has been received on 13.08.2009, hence not applicable cannot be accepted as the provisions of the Act clearly says that this provision is applicable with retrospective effect from 01.06.2007. Keeping in view, since no prima facie case can be made on applicability of any legal ground on this issue, we hereby decline to admit the additional grounds taken by the assessee on this issue. Issue of notice u/s 274 read with Section 271(1)(c) dated 23.12.2011, we find that the Assessing Officer has not specified under which limb of the provisions of Section 271(1)(c), the penalty is being initiated and levied. The specific mention whether the penalty is levied whether for concealment of particulars of income or for furnishing inaccurate particulars of income. As relying on M/S. SAHARA INDIA LIFE INSURANCE COMPANY, LTD. [2019 (8) TMI 409 - DELHI HIGH COURT] we hereby hold that the penalty levied by the Assessing Officer is liable to be obliterated. - Decided in favour of assessee.
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