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TMI Blog2019 (8) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Act, 1961(here-in-after referred to as "the Act") dated 28-06-2013 relevant to Assessment Years (AYs) 2005-06 to 2009-10. Since common issues are involved in all the assessee's appeals, therefore, these appeals were heard together and are being disposed of by way of this common order for the sake of convenience. First, we take up the assessee's appeal in IT(ss) A No.310/Ahd/2014 for AY 2005-06 as the lead case. The assessee has raised the following common ground of appeal: The learned Commissioner of Income Tax (Appeals)-IV, Ahmedabad ["the CIT(A)"] erred in fact and in law in confirming the action of the Deputy Commission of Income Tax, Central Circle-1 ("the Assessing Officer") in levying penalty amounting to Rs. 2,16, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d u/s 153A of the Act voluntarily. 2) As per provision of section 271(1)(c) r.w.s 153A for the purpose imposition of penalty return file u/s 139 of the Act, has not to be considered but the return file u/s 153A of the Act. 3) To impose the penalty, there should be additional income over and above the income declared in return filed u/s 153A of the Act, should be considered as concealment of income. 4) The provisions of section 153A of the Act exclude the assessment procedure covered under section 139,147,148,149,151 and 153 of the Act. Thus for penalty proceedings, the return filed u/s 153A of the Act should be considered, not the return file u/s 139 of the Act. 2.3 However, the AO rejected the contention of the Assessee by obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on material found during search. 3) Disclosure made by the assessee in the return file u/s 153A of the Act after the search u/s 132 of the Act. Therefore, there cannot be given any relief to the assessee from the penalty u/s 271(1)(c) of the Act, r.w. explanation 5A. Being aggrieved by the order of the Ld. CIT (A) the assessee is in appeal before us. 5. The Ld. AR before us submitted that there was no documentary evidence found during the search qua the undisclosed income declared by the assessee in the statement furnished under section 132(4) of the Act. Therefore there cannot be any penalty under section 271(1)(c) read with explanation 5Aof the Act. The learned AR in support of his claim relied on the judgment of Hon'ble Guja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation 5A.-Where, in the course of a search initiated under section 132 on or after the 1st day of June, 2007, the assessee is found to be the owner of- (i) any money, bullion, jewellery or other valuable article or thing (hereafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilising (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 search and,- (a) where the return of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. Based on said disclosures, the Assessing Officer imposed penalty under section 271(1)(c) by invoking Explanation 5A to said section. Held that it was undisputed fact that during the course of search, no incriminating documents were found and seized. The assessee surrendered the additional income under section 132(4) at Rs. 15 lacs and requested not to impose penalty under section 271(1)(c). The Assessing Officer imposed the penalty by invoking the Explanation 5A to section 271(1)(c). For imposing the penalty 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. As no incrimin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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