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2019 (10) TMI 1173 - AT - Income TaxPenalty u/s 271AAB - cash accumulated in saving account - cash found from the locker of wife of the assessee - HELD THAT:- Cash was found from the locker of the wife of the assessee and this fact is also manifest from the statement of the assessee recorded U/s 132(4) of the Act. In reply to question No. 6, the assessee has stated that the cash found from the locker of the wife of the assessee is admitted his undisclosed income and surrendered for tax. The assessee has explained during the penalty proceedings that this cash of ₹ 8,53,500/- is accumulated savings for past years and therefore, the same is not an undisclosed income of the assessee. The very fact of source of cash from the locker of the wife demonstrate that the same belongs to the wife of the assessee and even as per the provisions of Section 132(4A) presumption can be raised regarding any money, bullion, jewellery or other valuable articles or things is found in the possession or control of any person in the course of search, the same belongs to such person. Cash was found from the locker of the wife of the assessee which means it was found from the possession and control of the wife and therefore, cannot be presumed to be belonging to the assessee. Accordingly, without considering the cash being an undisclosed income of the assessee as per definition provided in the explanation to Section 271AAB the levy of penalty in respect of such surrender made by the assessee is not sustainable. Hence, the same is deleted. Penalty is not automatic as a result of surrender made by the assessee but the A.O. has to first decide whether the surrender made by the assessee is falling in the definition of undisclosed income as provided in the explanation to Section 271AAB(1) - When the assessee has furnished explanation that the cash found from the locker of wife of the assessee is representing the past savings of the wife then in absence of giving a finding on the part of the A.O. that the cash actually belongs to the assessee and not to the wife, the levy of penalty U/s 271AAB of the Act is not sustainable and the same is deleted. Appeal of the assessee is allowed.
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