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Mr. B. Rajeswara Rao Versus The ACIT,

2015 (5) TMI 988 - ITAT HYDERABAD

Penalty u/s 271(1)(c) - income offered as a consequence to the detection during the course of post search - Held that:- Respectfully following the order of the Coordinate Bench of Mumbai Tribunal in the case of Mr. Kiran Shah (2014 (1) TMI 1027 - ITAT MUMBAI ) wherein held for the purpose of imposition of penalty u/s. 271(1)(c) resulting as a result of search assessments made u/s. 153A, the original return of income filed u/s. 139 cannot be considered. Where returned income filed under section 1 .....

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iled by the assessee against the order of the Ld. CIT(A)-1, Hyderabad dated 31.07.2014 for the A.Ys. 2003-04 to 2006-2007. Since common issues are involved in these appeals, the appeals are heard together and are being disposed of by single consolidated order. 2. The facts of the case in brief as appearing from the penalty order are that during the course of search, it was found that the appellant and his family members have certain undisclosed income. In his statement, the appellant stated that .....

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ch and the appellant has not filed his returns of income offering the above income originally. Since the income is offered as a consequence to the detection during the course of post search, the conditions laid down in sub-section (1)(c), Explanation-1 and 5A are satisfied and therefore the Assessing Officer treated the assessee as assessee in default for the purpose of section 271(1)(c) and levied the penalty. 3. During the course of appeal proceedings before the Ld. CIT(A), the Authorized Repr .....

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d there would not be any proceedings pending. Therefore, the Assessing Officer cannot consider the returns of income pending as on the date of search for levying of penalty. 3.1. It was further submitted by the Ld. Authorised Representative before the Ld. CIT(A) that in so far as the proceedings u/s.153A are concerned, the assessee admitted the incomes as mentioned above and the Assessing Officer accepted the incomes admitted. Therefore, there is no concealment of income during the course of pro .....

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on of additional income during the course of search and seizure operations itself. Such amount was admitted in the returns of income filed in response to notice u/s.153A of the Act. The penalty proceedings were initiated during the assessment proceedings u/s.153A of the Act though there was no concealment. In support of its contention the assessee relied on the decision of Supreme Court in the case of CIT vs Suresh Chandra Mittal reported in 251 ITR 9 and also the decision of Coordinate Bench of .....

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n even if there is no change in the income admitted in return u/s.153A and the final assessment order. The income has been detected consequent to the search and the appellant has not filed his returns of income offering the above income originally. Since the income is offered as a consequence to the detection during the course of post search, the conditions laid down in sub-section (l)(c), Explanation-l and 5A are very much applicable to the appellant and the Assessing Officer has rightly levied .....

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rd both the parties and also perused the relevant material on record. We find that the solitary issue in the present appeals is squarely covered by the order of the Coordinate Bench of Mumbai Tribunal in the case of Mr. Kiran Shah vs. ACIT, Central 15 & 16, Mumbai in ITA.No.5919 to 5925/Mum/2011 dated 08.01.2014 wherein the Tribunal while allowing the appeals of the assessee held as under : 13. …. It would be pertinent to refer to the decision of the Delhi Bench in the case of Prem Ar .....

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assessment year relevant to the previous year in which such search is conducted or requisition is made. Thus, the legislative intention is not to assessee escaped income as in section 147 or undisclosed income as was assessed u1s. 158BC. The first proviso to Sec. 153A makes it clear that notice u/s. 153A will be for each of such six assessment years for assessment or reassessment of total income. Second proviso to section 153A provides that such notice will have the effect of abating all the pen .....

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