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2019 (8) TMI 52 - ITAT AHMEDABADPenalty u/s 271(1)(c) - Assessment u/s 153A - addition was made on the basis of admission of additional income in the statement u/s 132(4) - HELD THAT:- There is no debate with regard to the proposition that in order to attract Explanation 5A appended to section 271(1)(c) there should be a search and during that search assessee should be found to be owner of any money, bullion, jewellery and other valuable article or things and the assessee claims such assets has been acquired by him by utilizing wholly or partly of his income of any previous year or any income based on any entry in any books of accounts or other documents or transaction found during the course of search, and the assessee claims that such entries in the books of accounts or other documents or transaction represent his income from any previous year, which has ended before the date of search, then notwithstanding such income is declared by him in any return of income furnished on or after the date of search, he shall for the purposes of imposition of a penalty under clause (c) of sub-section (1) would be deemed to have concealed the particulars of income or furnished inaccurate particulars of income. If any money, bullion, jewellery or valuable showing income in the hands of the assessee, and such income was not from explained source, then after search in response to the notice u/s 153A, if the assessee has admitted that income, then deeming fiction for concealment of income would attract. The question before us is that no money, bullion, jewellery or book entry was found at the time of search. The only evidence against the assessee is that an admission of additional income was made in the statement u/s 132(4). The question is this admission akin to disclosure of money, bullion, jewellery or diary and income disclosed representing this statement is to be considered as concealed income ? This aspect has been considered in both these orders VASCROFT DESIGN PVT. LTD. VERSUS ACIT [2019 (2) TMI 1671 - ITAT AHMEDABAD] , wherein it has been held that on the strength of authoritative pronouncement of Hon’ble High Courts in KAILASHBEN MANHARLAL CHOKSHI VERSUS CIT [2008 (9) TMI 525 - GUJARAT HIGH COURT] that solely on the basis of declaration addition is not possible unless the assessee did not retract the statement. - a corroboration for such disclosure would require - we find force in the contentions of the ld.counsel for the assessee and delete the penalty. - Decided in favour of assessee.
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