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2017 (9) TMI 661 - AT - Income TaxPenalty u/s 271(1)(c) - unexplained investment under section 69 - assessee during the survey u/s 133A voluntarily accepted that discrepancy in stock - AO's non surety about the charge as concealment of particulars of income or for furnishing of inaccurate particulars of income - Held that:- As referred to Para of penalty order and Para of assessment order whereby the penalty initiated and levied by the AO we are of the view that concealment is initiated and penalty is levied and the AO is not sure about the charge of levy of penalty under section 271(1)(c) of the Act. See CIT vs. Samson Perinchery [2017 (1) TMI 1292 - BOMBAY HIGH COURT ] As decided in the case of CIT vs. Baroda Tin Works [1995 (9) TMI 18 - GUJARAT High Court] is relevant wherein it was held that the fiction created under sections 68, 69,69A,69B and 69C by itself, cannot be extended to penalty proceedings to raise a presumption about concealment of such income. The Hon’ble High court has also held that once the presumption of concealment or concealed income is rebutted, it is for the department to establish that the income which the assessee is alleged to have concealed is, in fact, his income as distinguished from deemed income of the assessee which he failed to disclose in his return. In the present case of the appellant, find that effectively the penalty has been levied on the deemed income under section 69, which is not sustainable relying upon the aforesaid case laws. Hence, the penalty levied under section 271(1)(c) on this issue is deleted, and therefore, the ground of appeal is allowed. - Decided in favour of assessee.
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