TMI Blog2013 (7) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... pted in its entirety without detailed discussion of the seized documents and without making any attempt to obtain explanation of the assessee, penalty u/s.271(1)(c) is not leviable. In favour of assessee. - I.T(ss). A. Nos.244 & 245/Ahd/2010 - - - Dated:- 30-4-2013 - Shri Mukul Kr. Shrawat And Shri T. R. Meena,JJ. For the Appellant : Shri Rahul Kumar Sr. D. R. For the Respondent : Shri Gaurav Nahta, A.R. ORDER Per Shri Mukul Kr. Shrawat, Judicial Member :- Revenue is in appeals emanating from a consolidated order of ld.CIT(Appeals)-III Ahmedabad dated 08/12/2009. For AY 2006- 07, penalty levied u/s.271(1)(c) amounted to Rs.5,53,654/- and for AY 2003-04, penalty was levied of Rs.4,27,896/-. 2. Facts as emerged from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld.CIT(A) has deleted the penalty in the following manner:- "7. The contentions/details on record, the facts in the case of appellant and the judicial decision cited/obtained thus far, were carefully considered. It is seen that concealment was admitted in the return filed u/s.153A, independent inquiry to prove concealment or mens rea was not a necessary requirement. The Gujarat high Court in case of CIT v. Mahendra Shah [2008] 299 ITR 305 has held that to seek benefit of immunity under the second exception {in Explanation 5 to s. 271(1)(c)}, the assessee is primarily required to show that there is a declaration as regards income and such income has not been disclosed till the date of search. Further when the statement is being recorded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , "does not make any distinction between the previous year which has ended before the date of search and the previous year which to end on or after the date of search and therefore when the assessee filed the return for earlier years, admitting a large income and also pay tax together with interest after his statement was recorded u/s.132(4), he was entitled to immunity under Explanation 5 to s.271(1)(c) and penalty was not liable for all these years. This view has been reiterated by the Rajasthan High Court in case of CIT vs. Kanhaiyalal (2008), 299 ITR 19 and the Allahabad Bench of ITAT in case of Shyam Biri Works, 70 TTJ 880. Shri Narendra, as the person maintaining the accounts of the family also and acting for himself and on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO on the basis of admission of assessee and not on basis of any material found during the course of search. Therefore, the case under consideration, is not the case that the assessee has furnished inaccurate particulars or concealed any particulars of income in the return of income filed u/s.153A of the Act. When there is no such finding in respect of return filed by the assessee in response to notice u/s.153A we find that penalty u/s.271(1)(c) cannot be levied. We therefore, cancel the penalty of Rs.78,750/- levied u/s.271(1)(c)." 5.1. An another order of the Tribunal, ITAT "D" Bench Ahmedabad in the case of Alpesh R.Lakhani for AYs 2001-02, 2002-03 and 2006-07 bearing IT(SS) Nos.156, 157 158/Ahd/2010 order dated 24.05.2012 has a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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