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2019 (6) TMI 424 - AT - Income TaxPenalty u/s 271(1)(c) - Voluntary disclosure of income or not - whether no incriminating materials by the AO during the course of assessment? - HELD THAT:- AO in the penalty order and the assessment order has clearly given a finding that assessee had agreed for the impugned additions only when assessee was confronted with the incriminating materials by the AO during the course of assessment. Furthermore as regards the assessee's claim of aforesaid income under a statement u/s 132(4) is concerned we note that nothing is on the records as to when pursuant to the said admission taxes were paid by the assessee or in which return filed the said disclosure was made. We find that provisions of law u/s 271(1)(c) for search conducted is contained in Explanation 5 & Explanation 5A to that section. CIT(A) in his appellate order has not dealt with the concerned section. He has also not dealt with the AO’s observation that the offer of income was not voluntarily. We also note that Ld. CIT(A) has not dealt with as to when assessee paid the taxes in accordance with his offered u/s 132(4) of the Act or when pursuant to the said disclosure return of income was filed. We note that in his appellate order, Ld. CIT(A) has referred several case laws and without showing as to how these are comparables or applicable on the facts of the case decided the issue in favour of the assessee. We further note that Hon’ble Apex Court has an occasion to consider the issue of levy of penalty u/s 271(1)(c) of the Act with respect to claim of voluntary disclosure in the case of MAK Data Pvt. Ltd. vs CIT [2013 (11) TMI 14 - SUPREME COURT] . In our considered opinion on the facts and circumstances of the case, the issue needs to be remitted to the Ld. CIT(A) to consider the issue in light of observation as above. Ld. CIT(A) shall also consider the case laws and other submissions been made by the Ld. Counsel of the assessee. - Appeal filed by the Revenue stands allowed for statistical purpose.
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