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2019 (7) TMI 1511 - AT - Income TaxPenalty u/s 271(1)(c) - income declared by the assessee in return filed under section 153A - difference in the income declared in return filed u/s 139 and income disclosed in return filed u/s 153A - HELD THAT:- Penalty under Explanation 5A to section 271 (1)(c) of the Act can be attracted if the assessee was found to be the owner of any money, bullion, jewellery or other valuable article or thing or any income based on any entry in any books of account or other documents or transactions. But, in the case on hand, there was no such allegation against the assessee either in the assessment or penalty or the CIT (A) order referring to the incriminating documents. Thus the issue arises whether the penalty can be levied under section 271 (1) (c) r.w. explanation 5A of the Act merely based on the statement furnished under section 132(4) of the Act and without having found of any incriminating materials found in search. In this regard, we are inclined to refer to the order of ITAT in the case of Ajay Traders Vs. DCIT [2016 (6) TMI 422 - ITAT JAIPUR] no incriminating documents were found during the course of search, therefore, Explanation 5A to section 271(1)(c) is not applicable. Accordingly, the penalty was to be deleted. It is clear that there cannot be any penalty under explanation 5A to section 271(1)(c) of the Act until and unless the quantum addition is based on some incriminating document. Accordingly, we hold that there cannot be any penalty under section 271(1)(c) of the Act in the given facts and circumstances. Hence the ground of appeal of the assessee is allowed. - Appeal of the assessee is allowed.
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