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2019 (12) TMI 908 - AT - Income TaxPenalty u/s 271(1)(c) - search proceeding carried out under section 132 - whether the assessee can be visited with the penalty with respect to the income disclosed by him in such proceedings voluntarily and without finding any incriminating document during the course of search? - HELD THAT:- Assessee has already disclosed impugned long term capital gain in the return filed under section 139 of the Act. But the addition in the assessment framed under section 153A r.w.s. 143(3) of the Act was made on account of the difference in the rate adopted by the assessee vis-a-vis adopted by the Revenue as on 1st April 1981. The assessee has taken the rate at ₹ 84.80 per square feet for the acquisition of the land whereas the AO has adopted the rate at ₹ 15 per square feet for the acquisition of such land as on 1-4-1981. Thus the addition was made on account of the difference in the rate and not on the basis of any incriminating document found during the course of search. Additional income in the return filed under section 153A of the Act was voluntarily and without having found any income/documents by the Revenue in the manner provided under explanation 5A to section 271(1)(c) of the Act. As such, there was not found any undisclosed income by the Revenue in the course of such conducted under section 132 of the Act. Thus, it is inferred that such addition was not based on the document found during the course of search. There cannot be any penalty under explanation 5A to section 271(1)(c) of the Act until and unless it supported on the basis of incriminating document. At the time of the hearing, a query was raised to the Ld. DR whether the income disclosed by the assessee in pursuance to the search was based on the incriminating document, but he failed to bring any material on record. Therefore, in the absence of any documentary evidence, we infer that the additional income offered to tax cannot be subject to the penalty under explanation 5A to section 271(1)(c) of the Act. - Decided in favour of assessee
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