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2015 (7) TMI 323 - AT - Income TaxLevy of penalty u/s. 271(1)(c) - unexplained jewellery found - whether the saving of Explanation 5 to section 271(1)(c) is attracted in the facts and circumstances of the case, which would prima facie apply inasmuch as the impugned jewellery was found during the course of search? - Held that:- The assessee has not been able to; rather, has not even attempted to substantiate her explanation of the jewlery having been gifted on the occasion of weddings in the family, which would in the very least require the names of the donors, besides confirmations from the donors. Rather, how could gift to another form part of her income, i.e., going by her explanation. The same is no more than a bald plea, contradicted by the assessee’s own stand of returning the same as her income, albeit consequent to search. The same, however, cannot be regarded as voluntary by any stretch of imagination, being in consequence of a search and findings thereat, i.e., detection and, in fact, seizure of the relevant assets. Both Explanation (1A) and (1B) to section 271(1)(c) shall, resultantly, apply in the facts of the case. It may be argued that the Revenue has not invoked the said Explanation. The same is not required to be separately invoked when the assessee is show-caused on section 271(1)(c) (CIT v. Prabhu Dayal Lallu Ram [2005 (1) TMI 39 - PUNJAB AND HARYANA High Court]; CIT v. K.P. Madhusudanan [2000 (1) TMI 15 - KERALA High Court]. The law, through Explanation 1, shifts the onus of the explanation for not returning/disclosing the impugned income on the assessee, so that the penalty follows the non-discharge of that onus. In the present case, the assessee seeks shelter of Explanation 5 to the provision, which we have, for the reasons afore-stated, found as not applicable. No further burden lies on the Revenue; it restricting itself to the assessee’s case as advanced before it, i.e., entitlement to the benefit of Explanation 5 to the provision.There is, further, no plea of the disclosure per the return as made to purchase peace of mind and/or avoid litigation. The plea would even otherwise be inconsistent with the facts of the case; wholly unsubstantiated and, accordingly, not maintainable either on facts or in law. We confirm the levy of penalty imposed at the minimum sum thereof, i.e., at 100% of the tax sought to be evaded. In this regard, the assessee states of the correct amount of income disclosed and assessed being at ₹ 29,13,895/-, and not ₹ 29,31,895/-, i.e., on which amount the penalty stands levied. We find the assessee’s claim as correct, so that a consequential relief is directed. - Decided partly in favour of assessee.
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