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2023 (4) TMI 268 - ITAT KOLKATAPenalty u/s 271(1)(c) - difference between the amounts available in the return filed originally, vis-a-vis return filed in response to notice under section 153A - case of the Revenue is that had the search not carried out, then the assessee would have not disclosed the income, which has been disclosed under section 153A - HELD THAT:- We have noticed break-up of the amounts disclosed by the assessee in the return filed under section 139, vis-a-vis in re sponse to notice 153A. We have also taken note of the income disclosed under section 132(4) - Assessee has made disclosure under section 132(4) that does not mean some money, bullion, jewellery or valuable was found and seized. The extra income disclosed has not been demonstrated as representing that money, bullion or jewellery. The case of the assessee that Explanation 5A to section 271(1)(c) could only be invoked if during the course of search, any money bullion, jewellery or document, notings found during the course of search on the basis of which addition in the hands of the assessee are being made is correct. If an assessee enhanced his income voluntarily, then no penalty would be imposed upon the assessee. Assessee has relied upon the decision of Neeraj Jindal [2017 (2) TMI 1002 - DELHI HIGH COURT] has also considered the scope of Explanation 5A and held that unless money, bullion, jewellery or asset found during the course of search representing the extra income disclosed by an assessee in response to section 153A, vis-a-vis the income filed under section 139(1), the assessee cannot be visited with penalty. We allow all these appeals of the assessee and delete the penalties.
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