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2017 (3) TMI 1043 - AT - Income TaxPenalty u/s 271(1)(c) - concealed income being the difference between the returned loss declared in the return under section 139 (1) and section 153A - Held that:- Assessee filed original return of income by declaring capital loss of ₹ 1,45,77,465/-and a carry forward the business loss amounting to ₹ 1,25,527/-. Subsequently as a result of search, the business loss was reduced to ₹ 20,450/-by reducing the deferred revenue expenditure amounting to ₹ 1,05,077/- and assessee chose not to carry forward such business loss. Explanation 5A to section 271 (1) (c) is now very clear, that if there is a difference in the original return filed under section 139 (1) of the Act and the return filed in response to section 153A of the Act, the assessee is deemed to have concealed the income. We do not find any scope of any explanation to be given by the assessee when explanation 5A of the Act has been invoked. Thus in our considered opinion the Ld.AO was correct in levying the penalty under section 271 (1) (c) by invoking Explanation 5A of the Act. However he cannot include such income/loss that was already declared in the original return of Income. The capital loss of ₹ 1,45,77,465/- that was declared by assessee should be excluded while calculating the penalty. Accordingly we set aside the issue back to the files of AO for re-computing the as per law. - Decided in favour of revenue for statistical purposes.
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