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2019 (4) TMI 779 - AT - Income TaxPenalty u/s 271(1)(c) under Explanation 5A - assessee is engaged in the business of real estate activities but not filed return u/s 139(1) - notice u/s 153A - return filed u/s 153A disclosing Capital Gain which was accepted - bonafide belief or inadvertent mistake - HELD THAT:- A persistent default on the part of the assessee for not filing the return of income rules out the possibility of any bonafide or inadvertent mistake or belief as claimed by the assessee. The Explanation 5A to section 271(1)(c) creates a deeming fiction regarding concealment of particulars of income or furnishing inaccurate particulars of income irrespective of the fact that the assessee has declared in the return of income after search. Therefore, all the conditions as stipulated under Explanation 5A to section 271(1)(c) are satisfied in the case of the assessee and consequently the said Explanation is applicable in respect of the income which was disclosed only after search and seizure action and based on seized material. When the assessee’s case is covered by the said Explanation 5A, then the decision relied upon by the assessee will not help the case of the assessee as it is neither a case of bonafide mistake nor a case of bonafide belief but it is a continues default on the part of the assessee for not filing even return of income despite the activity in the real estate and earning the income therefrom. Accordingly, we do not find any error or illegality in the impugned order of the CIT(A) - Decided against assessee.
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