TMI Blog2019 (7) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee either in the assessment or penalty or the CIT (A) order referring to any specific incriminating documents. As relying on Ajay Traders Vs. DCIT [2016 (6) TMI 422 - ITAT JAIPUR] there cannot be any penalty under explanation 5A to section 271(1)(C) of the Act until and unless the quantum addition is based on some incriminating document. Accordingly, we hold that there cannot be any penalty under section 271(1)(C) of the Act in the given facts and circumstances. - Decided in favour of assessee. - ITA Nos. 1658-1659/AHD/2017 - - - Dated:- 19-7-2019 - SHRI WASEEM AHMED, ACCOUNTANT MEMBER And Ms. MADHUMITA ROY, JUDICIAL MEMBER For the Appellant : Shri S.N. Soparkar Shri Nishith Shah, A.Rs For the Respondent : Shri Mudit Nagpal, Sr. D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeals have been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-12, Ahmedabad of even dated 10/03/2017 (in short Ld.CIT(A) ) arising in the matter of assessment order passed under s.153A r.w.s 143(3) of the Income Tax Act, 1961 (here-in-after referred to as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO on account of on the income declared in return u/s 153A of the Act. 2. Briefly stated facts are that a search was carried out u/s 132 of the Act in the Dhanjimama Group of Cases including the assessee dated 03-07-2012. The assessee during the search disclosed income of ₹ 2,00,00,000.00 which was declared in the return of income filed in response to the notice issued under section 153A of the Act. The same was accepted in the assessment proceedings framed under section 143(3) r.w.s. 153A of the Act vide order dated 20-3-2015. 2.1 Subsequently, the AO initiated the penalty proceedings by issuing a notice under section 274/271(1)(c) of the Act dated 20-03-2015 to the assessee on account of the disclosure made in the income tax return filed under section 153A of the Act. The assessee in response to the notice submitted as under: 1) He has disclosed the income in return filed u/s 153A of the Act voluntarily. 2) As per the provision of section 271(1)(c) r.w.s. 153A of the Act for imposing the penalty, the return filed u/s 139 of the Act, needs not to be considered. As such the return filed u/s 153A of the Act needs to be considered. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n seized documents/seized assets is either shown by the appellant in any return of income filed after the date of the search or is assessed by the AO for an assessment year for which the time limit u/s 139 for filing the return had expired before the date of the search. In my considered opinion, the only requirement for Explanation 5A to be applicable Is that the showing in the return of income filed after the date of search or having been additionally brought to tax by the AO has a direct bearing with the documents/assets seized as mentioned in clause (i) and clause (ii) of Explanation 5A. That this requirement of Explanation 5A is satisfied is only mildly disputed by the Ld, AR without substantiating the same. Therefore, the argument based on the relevant income having been disclosed in the return of income after the date of search has clearly no merit and deserves to be rejected. The appellant's reliance on Gujarat HC decision of Kirit Dahyabhai ITA No. 1 IB I, J182 I]85/Ahd/2QlI for the proposition that penalty is not sustainable when the income is already disclosed in the return filed u/s 153A is also misplaced firstly because the decision was rendered in the context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 2.80 lakhs for the assessment year 2009-10. 4. ON the basis of the disclosure, the assessee filed a return on March 31, 2010, offering a sum of ₹ 70,00,000 for taxation earned during the assessment year 2008-09. It is not m dispute that for the assessment year 2008-09, the assessee had earlier filed his return in which, the aforesaid sum of Rs, 70,00,000/- was not disclosed. The case of the assessee, as such, came squarely within the provision of section 271(1) of the Income-tax Act, 5. The Assessing Officer passed art order of penalty, 0.5 indicated earlier, which was affirmed by the appellate authority. The Tribunal interfered with the order of the appellate authority on the basis of a Judgment of the Appellate Tribunal, Mumbai, in the case of ITO (Central) v. Cope M. Rochaiani IT Appeal No. 7737 (Mum.) of 2011, dated 24- 0502013. The aforesaid judgment, Mr. Khaitan submitted, has to be read in conjunction with clause {b) of Explanation 5A to action 271(1), which provides as follows : (b) the due date for filling the return of income for such previous year has expired has expired but the assesses has not filed the return 6. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3A, The cases also pertain to Explanation 5 and not 5A. The facts in the present case being different and in view of Prasana Dugar (supra), hold, with respect, that these decisions are not applicable. In view of the discussion as above, I am of the considered view that the Ld, AO is right in initiating and in levying penalty u/s 271(l)c) r.w. Explanation 5A. Thus, I find no reason to interfere with the orders levying penalty passed by the AO. Accordingly, I uphold the penalties levied by the AO as under and consequently dismiss the appeal filed by the appellant; A.Y Penalty upheld A.Y. 2010-11 ₹ 67,98,000/- A.Y. 2011-12 ₹ 25,55,330/- In the result, appeals for both the assessment years are dismissed. 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 incriminating documentary evidence found during the search qua the undisclosed income declared by the assessee in the return of income filed in respons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 income for such previous year has been furnished before the said date but such income has not been declared therein; or (b) the due date for filing the return of income for such previous year has expired but the assessee has not filed the return, then, notwithstanding that 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) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income.] The above provision reveals that the penalty under Explanation 5A to section 271 (1)(c), the of the Act can be attracted if the asses ..... 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