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2019 (2) TMI 1597 - HC - Income TaxPenalty u/s 271(1) (c) - search and seizure operation - issuance of notice u/s 153A - Advances for booking of flats as income - disclosure of additional income to buy peace - HELD THAT:- As perused the appeal memo of the appeal before the Commissioner which nowhere explains the assessee’s stand that the amount in question did not represent the income or the reasons for the same. As noted, the assessee confined the appeal to a single ground namely that the Assessing Officer had committed an error in leaving the penalty. The main thrust of the assessee’s contention in the appeal was that the disclosures were made to buy peace and on condition that the penalty proceedings would not be instituted. Both grounds not found favour with the Supreme Court in case of MAK DATA P Ltd Vs. CIT [2013 (11) TMI 14 - SUPREME COURT]. The assessee has not built up any case for arguing that the receipt in question was not in the nature of income. Merely by stating so and relying on the judgment of this Court in the case of CIT, Nagpur Vs. Karda Constructions Pvt Ltd. [2013 (2) TMI 740 - BOMBAY HIGH COURT] the assessee cannot hope to establish the same. The assessee had made disclosure of additional income. To dislodge his own declaration that the disclosures did not relate to income the assessee had to lay down a foundation which in the present case is totally missing. Section 271(1) as is well known refers to a penalty that may be imposed on an assessee under specified circumstances. Explanation 5A added to the said sub-section by Finance Act 2009 w.e.f. 1.6.2007 covers a situation where the assessee post search files a return of income disclosing additional income claiming immunity from penalty. The explanation provides that notwithstanding declaration of such income in the return filed after the date of search, the same would be deemed to be a case of concealing particulars of income or the case of furnishing of inaccurate particulars of income. The case of the assessee would squarely fall within this explanation and the Tribunal correctly reinstated the order of the Assessing Officer.
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