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2016 (6) TMI 422

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..... enalty under Explanation 5A on the basis of statement recorded during the course of search, it is necessary to be found incriminating documents and is to be considered at the time of assessment framed under section 153A of the Act. The issue has been considered by various High Courts as well as by ITAT as relied upon by the assessee, which are squarely applicable to the case of the assessee. As no incriminating documents were found during the course of search, therefore, Explanation 5A to section 271(1)(c) is not applicable. Accordingly, we delete the penalty confirmed by ld. CIT (A). - Decided in favour of assessee. - ITA No. 296/JP/2014 - - - Dated:- 6-5-2016 - Shri T. R. Meena, AM And Shri Laliet Kumar, JM For the Revenue : Shr .....

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..... ITO vs. Suraj Bhan, 294 ITR 481 (P H) Sir Shadilal Sugar and General Mills Ltd. vs. CIT, 168 ITR 705 (SC) CIT vs. Bhuramal Manikchand (1981) 130 ITR 129. CIT vs. Jhagru Ram Kunda Ram (1972) 86 ITR 823. Indian Cashaw Trading co. vs. CIT (1974) 97 ITR 676. Gokuldas Harivallabh Das (1958) 34 ITR 98. After considering the assessee s reply, the AO held that facts of the case laws relied upon are not squarely identical to the case of the appellant. He further considered the Hon ble Supreme Court decisions in detail on facts and legal aspects in the case of Dilip N. Shroff, Dharmendra Textile Processors (supra), Suresh Chand Mittal and held that Explanation-1 of section 271(1) of the Act to provide relief whe .....

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..... rmed the penalty by observing as under :- 5.7. I have gone through the copy of the above order passed by the Hon ble ITAT, Jodhpur Bench and find that after considering the provisions of section 271(1)(c) of the IT Act and the decisions of the Hon ble Supreme Court rendered in the case of Dilip N. Shroff vs. JCIT Anr., UOI vs. Dharmendra Textile Processors as well as UOI vs. Rajasthan Spinning Weaving Mills and also CIT vs. Reliance Petro Products Pvt. Ltd., Hon ble Tribunal has held that o attract penalty in a case, the details supplied in the return of income must not be accurate, not exact or correct, not according to the truth or erroneous. Where there is no finding that details supplied by the assessee in its return are found .....

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..... the assessee is found to be the owner of, - (i) Any money, bullion, jewellery or other valuable article or thing (hereinafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilizing (wholly or in part) his income for any previous year; or (ii) Any income based on any entry in any books of account or other documents or transactions and he claims that such entry in the books of account or other documents or transactions represents his income (wholly or in part) for any previous year, which has ended before the date of the search and the due date for filing the return of income for such year has expired and the assessee has not filed the return, then, notwithstandin .....

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..... es for the entire group was offered as additional income u/s 132(4) of the IT Act. The assessee has disclosed additional income under the head Income from other sources . Return for A.Y. 2007-08 was filed by declaring an income of ₹ 82,88,590/- on 30.04.2010 which was accepted by the AO and no further addition was made by him. It is fact that assessee has enhanced the income by ₹ 15 lacs to the income declared in the original return of income. The AO invoked provisions of Explanation-5A to section 271(1)(c). During the course of search, no incriminating documents were found which is evident from the assessment order that no addition had been made by the AO. He accepted the returned income. The ld. CIT (A) also confirmed the pen .....

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..... ase as such revenue has not brought on record any material to prove that unaccounted money, jewellery or incriminating documents were found. He further has drawn our attention to ITAT Jaipur Bench decision in the case of Shri Radhey Shyam Mittal, ITA No. 1013, 1014 1015/JP/2013 deleting penalty imposed by the Assessing Officer by invoking Explanation 5A to section 271(1)(c), wherein the Tribunal held that penalty under Explanation 5A to sec. 271(1)(c) has to be made where any incriminating documents are found during the course of search. In the case of assessee, no incriminating documents were found, therefore, the coordinate Bench had deleted the addition. The ld. A/R of the assessee requested to delete the penalty confirmed by ld. CIT ( .....

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