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2019 (12) TMI 971 - AT - Income TaxPenalty u/s.271(1)(c) - additional income was offered to tax by the assessee as a result of search proceeding carried out u/s 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:- 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 and addition of other business income cannot be subject to the penalty under explanation 5A to section 271(1)(c) of the Act. Penalty u/s 271AAB - assessee has disclosed additional income in pursuance to the return filed under section 153A - HELD THAT:- Penalty shall be imposed under section 271AAB of the Act where there is undisclosed income within the meaning of the explanation C to 271AAB of the Act. However, we note that there was no documentary evidence found by the search team suggesting that there was any undisclosed income of the assessee. As such the voluntary income disclosed by the assessee and the addition made by the AO was without having found any incriminating document in the course of search. We also note that there no reference made by the authorities below to the documents of incriminating nature having bearing on the income of the assessee in their respective orders. The ld. DR has not advanced any arguments against the contentions raised by the ld. AR for the assessee. See M/S. MARVEL ASSOCIATES VERSUS ACIT, CENTRAL CIRCLE-2, VISAKHAPATNAM [2018 (3) TMI 946 - ITAT VISAKHAPATNAM] - Decided in favour of assessee.
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