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2016 (6) TMI 886 - AT - Income TaxLevy penalty u/s 271(1)(c) - surrender of income - Held that:- The assessee has placed on record copy of the statement of the assessee recorded on 3.10.2007 in which entire surrender of ₹ 69 lacs was made in all the assessment years under appeals, in which no incriminating material was referred to the assessee while recoding her statement to conclude that assessee had concealed\ any income. The assessee made a surrender of ₹ 69 lacs as per letter of surrender. Therefore, Ld. Counsel for the assessee is justified in contending that even in the absence of any incriminating documents found against the assessee during the course of search, the provisions of explanation 5A of section 271(1)(c) would not apply in the case of the assessee. This issue was considered in detail by the ITAT, Hyderabad Bench in the case of Dilip Kedia Vs. ACIT (2013 (7) TMI 934 - ITAT HYDERABAD ) which squarely apply to the facts and circumstances of the present case. Thus no justification to sustain the penalty u/s 271(1)(c) of the I.T. Act - Decided in favour of assessee. Levy penalty u/s 271(1)(c) - assessee had not filed its return of income u/s 139(1) of the Act within the due date and disclosure was made subsequently in response to the notice u/s 153A - Held that:- The assessment year under appeal is 2007-08 and due date of filing of the return was 31.7.2007 u/s 139(1) but no return has been filed by the assessee by the due date. The due date u/s 139(1) was extended upto 31.3.2009, which was actually extension of due date under section 139(4) of the Act. Therefore, due date had not expired for filing of the return u/s 139(1) (4) of the I.T. Act on the date of search. The assessee in response to the notice u/s 153A declared entire income including the Short Term Capital Gain and Misc. income which have been accepted by the Assessing officer as it is. Therefore, Explanation 5A introduced by the Finance Act 2009 would not apply in the case of assessee because the return u/s 153A was already filed on 31.12.2008 which have been accepted as it is by the Assessing officer. Further, as is held in assessment year 2005-06, no material was referred to in the statement of the assessee while making a total surrender of ₹ 69 lacs. Therefore, in the absence of any material against the assessee, deeming provision of concealment would not apply in the case of the assessee. - Decided in favour of assessee.
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