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2015 (3) TMI 1018 - AT - Income TaxLevy of penalty u/s.271AA - CIT(A) deleted the penalty levy - Held that:- The ingredients of section 271AAA, for which reference may be made to subsections (1) and (2) thereof, and which provision only is applicable for the current year - the year of search (s. 271AAA(1) r/w Explanation thereto), and in fact applied by the A.O., vary substantially from that of section 271(1)(c) (Explanation 5), noted at para 6.5.4 of the impugned order, inasmuch as the former provides for substantiation of the manner in which the undisclosed income, as disclosed per s. 132(4), is derived by the assessee. In fact, the ld. CIT(A) records the ingredients of Explanation 5 to section 271(1)(c) at para 6.5.4 of his order, while Explanation 5A to s. 271(1)(c) alone is relevant for a search initiated u/s.132 on and after 01.06.2007, as in the instant case; the former applying only in case of a search initiated before 01.06.2007. Even the decision relied upon by him (at para 6.5.5), i.e., Mahendra C. Shah (supra), is only in the context of section 271(1)(c). The two sections, i.e., s. 271(1)( c) and s. 271AAA, are not only worded differently, with thus different concomitant scopes, are rather mandated to operate exclusively (refer section 271AAA(3)). The foregoing, we believe, would bring forth the basis as well as the validity of our initial observation at para 4.1 of this order, i.e., of the ld. CIT(A) having grossly misapplied himself in the matter. We, therefore, accepting the Revenue’s Ground vacate the findings by the ld. CIT(A) as well as his consequent decision as recorded in the concluding sub-para of his order. As explained by the hon’ble courts as well as the official pronouncements explaining the provision, is of plugging the generation of undisclosed income and the consequent leakage of revenue for future, why could the same be not read so as to allow the assessee the latitude for providing the necessary details subsequently, i.e., where the disclosure u/s.132(4) is made under excruciating or difficult circumstances. The same of course would be under oath, making it a part of and refer to the earlier statement u/s. 132(4), complying thus substantially and effectively, with the substantive provision of law. Further, the further condition of ‘substantiation’, as provided u/s. 271AAA(2)(ii), which was not there in the case, being u/s. 271(1)(c), before the hon’ble court in Mahendra C. Shah ( 2008 (2) TMI 32 - GUJARAT HIGH COURT), could only be interpreted to mean of the law casting a further obligation on the assessee to demonstrate the manner of deriving the undisclosed income, as specified per the statement u/s.132(4), as valid and true, i.e., stands validated and is on a firm basis; the presumption as to the truth of the materials found being already provided for u/s. 292C. The said decision would thus be of little assistance to the assessee. - Decided in favour of Revenue’s for statistical purposes
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