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2012 (2) TMI 16 - AT - Income TaxPlea for waiver of penalty u/s 271(1)(c) undisclosed income traced during search assessee owned unaccounted transactions divergent of opinion among the lower authorities as well as the Tribunal while deleting or sustaining the addition - whether the penalty is automatic, even if the assessee corrects his mistake or discretion vested in the officer should be used to not levy the penalty - Held that:- The present case is most befitting case to exercise such discretion. Divergence of opinion among authorities concerned shows that there is no conclusive proof that the assessee concealed income or furnished inaccurate particulars of income. Further as seen from the facts of the case, to avoid litigation the assessee accepted the additions or made fresh offer in the course of the proceedings before the lower authorities. After the A.O. had the clinching evidence of concealment then the offer may not have been accepted and the same should have been proceeded on the basis of material available on record. The lower authorities relied on proceedings before A.O. for levying the penalty. The same do not constitute admission for the purpose of levying penalty. The addition made on the basis of more or less on the offer made by the assessee and the A.O. did not brought enough incriminating material for concealment and there is no material for establishing the concealment independently in the given facts and circumstances of the penalty is not leviable and the same is deleted Decided in favor of assessee.
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