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2012 (12) TMI 488 - AT - Income TaxPenalty u/s 271(1)(c) – Whether voluntary income returned by the assessee u/s 153A, which is otherwise cannot be added on the basis of seized material, would amount to concealed particulars or furnished inaccurate particulars of income - During search a calculation of interest found from residence of assessee - Held that:- As per the seized document only amount was shown as interest and nothing else has been mentioned in the said document. The explanation 5 to sec. 271(1)( c) is applicable only in the cases when the additional income has been admitted by the assessee because of some incriminating material showing material showing undisclosed income found and seized during the search and seizure action. Therefore, it cannot be presumed in the absence of any material or information that the additional income offered by the assessee is otherwise liable to be added to the income of the assessee on the basis of seized material. Issue decides in favour of assessee Bogus gift – Whether gift has been offered by assessee, to avoid the harassment of bringing donor from abroad and to produce before the AO treat as bogus – Held that:- As the amount of gift was duly recorded in books of accounts. The AO himself has recorded the fact that in the e-mail correspondence, the uncle of the assessee has accepted the said amount. Even the source of the gift was also explained as the sale proceed of flat and therefore, though the assessee offered the said amount to tax, the same was not held as a bogus. Issue decides in favour of assessee Penalty u/s 271(1)(c) - Whether penalty u/s 271(1)(c) can be levied, for gift which has been offered by assessee through revised return, to avoid the harassment of bringing donor from abroad and to produce before the AO – Assessee revise ROI filed u/s 153A – Held that:- As the revised return filed by the assessee within the period of limitation as prescribed u/s 139 (5), cannot be held invalid. When the assessee has already recorded the gift amount in the books of account and only to avoid the inconvenience and harassment to his uncle, the assessee offered the same to tax, would not automatically lead to the conclusion that the assessee had furnished inaccurate particulars of income or concealed particulars of income in the absence of any conclusive finding that the claim of the assessee was a bogus. Penalty deleted. Issue decides in favour of assessee Penalty u/s 271(1)(c) - Whether penalty u/s 271(1)(c) can be levied, whereas income offered by assessee on voluntarily basis, and no addition was made on the basis of seized material – Held that:-As the income offered by the assessee in the return filed in response to Sec. 153A does not borne out from the seized material. When there is no co-relation and nexus of the additional income offered by the assessee and the figures return in the seized documents, then it cannot be said that the additional income admitted in the return of income filed u/s 153A is based on some incriminating material or information found during the course of search and seizure action. Following the decision in case of SHRI PREM ARORA (2012 (6) TMI 480 - ITAT DELHI) hence penalty deleted. Appeal decides in favour of assessee
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