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2016 (8) TMI 1130 - AT - Income TaxPenalty u/s 271(1)( c) - income offered after the search but in the return filed u/s 153A - Held that:- there was lot of correspondences between the assessee and the revenue with regard to centralization of cases to Ranchi and Patna and ultimately that dispute got settled vide order of CBDT dated 9.4.2009 wherein it was decided to centralize the cases at Kolkata. Only after the said CBDT order was served on the officials of Kolkata jurisdiction , thereafter ld DGIT (Inv) Kolkata vide his order dated 15.5.2009 assigned the jurisdiction of the case to DCIT, CC-XI, Kolkata. After the issue of jurisdiction over the group was settled, seized materials were transferred by DDIT (Inv) Ranchi to the ld AO at Kolkata in July 2009 who thereafter allowed inspection of the seized documents to the assessee at Kolkata. Notice u/s 153A of the Act was issued by the Kolkata jurisdictional officer on 3.8.2009 and the returns were filed by the assessee on 31.8.2009. We find that on the date of giving sworn statement u/s 132(4) of the Act on the date of search, the amended provisions of Explanation 5A to section 271(1)(c ) of the Act was not in force. It is quite evident from the statement recorded u/s 132(4) of the Act on 24.1.2008 / 25.1.2008 that there is a reference to waiver of penalty proceedings by the group head in his statement. The assessee was prevented from reasonable cause from filing the return u/s 153A of the Act before the amendment was proposed by the Finance (No.2 ) Act, 2009 in Explanation 5A to Section 271(1)( c) of the Act. It cannot be ignored that returns u/s 153A of the Act could be filed only after issuance of notice u/s 153A of the Act thereon which was admittedly issued only on 3.8.2009 and assessee had immediately filed the returns in response thereto on 31.8.2009. It is not in dispute that the assessee had filed regular returns u/s 139(1) of the Act prior to the date of search for all the years under appeal. Hence penalty u/s 271(1)(c ) of the Act by application of Explanation 5A (amended provisions) could not be made applicable to the assessee. - Decided in favour of assessee. We find that the ld AO had merely made a tick mark in the show cause notice for the Asst Year 2003-04 without striking off the specific charge on which the assessee has to meet while replying to the penalty notice. In respect tof Asst Years 2004-05 to 2007-08, we find that the ld AO had not even given any tick or struck off the irrelevant portion and had merely given a blank show cause notice by just mentioning the name of the assessee, Asst Year, date and time of penalty hearing. - Decided in favour of assessee
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