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2018 (12) TMI 1068 - AT - Income TaxLevy of penalty u/s. 271(1)(c) - income admitted in the return filed in response to notice u/s 153A - A.O. has issued notice both u/s. 271(1)(c) and section 271AAA - Held that:- A.O. has given the said notice out of abundant caution. Prima facie satisfaction of the A.O. regarding the concealment was clearly exhibited in the assessment order. Hence, the CIT(A) has found no reason to hold that the penalty is liable to be quashed since the notice u/s. 271(1)(c)and 271AAA both were issued and notice u/s. 271AAA was not acted upon. We find that the reasoning given by the CIT(A) above is cogent. The assessee has received both notices. Notice u/s. 271AAA was issued by the A.O. under abundant caution only and it was not subsequently acted upon. As regards the striking off the relevant limb in the notice u/s. 271(1)(c) this issue was never raised before the ld. CIT(A). In our considered opinion, the adjudication of this issue needs reference to the original records in order to examine the veracity of the assessee’s claim, in view of the ld. CIT(A)’s finding that the penalty was levied on specific charge of concealment of income and noting that the assessee has pleaded that only notice u/s. 271AAAA was received. Hence, we deem it appropriate to remit this issue to the file of the CIT(A) only after factual examination of this claim, the case law on the issue cited above need to be considered. CIT(A) is directed to consider the issue and pass a speaking order. The penalty u/s. 271(1)(c) which are levied under the caption of Explanation 5A have to be levied irrespective of the fact whether the undisclosed income declared in search is disclosed by the assessee in the return of income furnished after the date of search. Hence, the assessee’s plea that the penalty should not be levied as the undisclosed income has been offered in the return of income pursuant to search cannot come to the rescue of the assessee. The case law cited by the ld. Counsel of the assessee in this regard with regard to the Kirit Dahyabhai Patel vs-ACIT, (2015 (1) TMI 201 - GUJARAT HIGH COURT) and DCIT-vs-Purti Sakhar Kharkhana (2013 (12) TMI 242 - ITAT NAGPUR) cannot help the case of the assessee as they were not rendered under the context of the penalty levied u/s. 271(1)(c) under Explanation 5A. Hence, we find that there is no infirmity in the order of the ld. CIT(A) upholding the levy of penalty on merits of the case. - Appeal of assessee is partly allowed for statistical purposes.
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