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2009 (8) TMI 128 - AT - Income TaxLevy of penalty u/s 271(1)(c) - addition u/s 68 for unproved cash credit - income not disclosed in the return - main contention advanced on behalf of the assessee is that penalty proceeding was initiated by invoking Expln. 5 to s. 271(1)(c) and, therefore, question has to be strictly examined in the light of above Explanation - HELD THAT:- In our considered opinion, it was totally unnecessary on the facts of these cases for the AO to invoke (allegedly) Expln. 5 to s. 271(1)(c) as income not disclosed in the return u/s. 139 but detected subsequently and established to be assessee's income and assessed accordingly is concealed and fully covered by u/s. 271(1)(c). There was absolutely no need to try and bring the cases under Expln. 5 to the section. It has been referred by the AO out of abundant precaution to make clear to the assessee that subsequent disclosure of income u/s. 153C would not alter her default u/s. 271(1)(c) committed in returns filed u/s. 139 (before the search). Factual matrix is not in dispute. It is immaterial that above Explanation has been referred in the assessment order. On facts, application of s. 271(1)(c) is not affected. The proposition that assessee has an obligation to show correct income u/s. 139 and if it is not done. Revenue is entitled to invoke provision of s. 271(1)(c) notwithstanding that correct income is shown in response to notice u/s. 148 or in some other proceedings is well established and is beyond doubt. For the purpose of present proceeding, there is no material difference whether the returns were filed in response to notice u/s. 148 or u/s. 153C. The legal position on the issue is more than clear. The Hon'ble Allahabad High Court in the case of CIT vs. Ram Achal Ram Sewak [1974 (2) TMI 12 - ALLAHABAD HIGH COURT] held that the relevant return for the purposes of s. 271 is the original return filed by the assessee, and not the return filed subsequent thereto. We are of the view that these are fit cases where penalties u/s. 271(1)(c) have been rightly imposed on the assessee. Levy of penalty is hereby confirmed. Appeals of the assessee are dismissed.
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