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TMI Blog2019 (12) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... 12, Ahmedabad [CIT(A) in short] vide appeal nos.CIT(A)-12/7, 8, 9 and 10 /CC-1/2018-19 all dated 24/06/2019 arising in the assessment order passed under s.153A r.w.s.143(3) of the Income Tax Act, 1961(hereinafter referred to as "the Act") dated 30/01/2015 and penalty order passed u/s.271(1)(c) of the Act dated 27/03/2018 relevant to Assessment Year (AY) 2011-12. Since all the appeals relate to the same issue involving identical facts and circumstances but to different assessees, hence the same are heard analogously and are being disposed of by way of this common order. First we take up the appeal in the case of Smt. Lopa Pankaj Dave in ITA No. 1266/AHD/2019 for AY 2011-12. The assessee has raised the following grounds of appeal:- (1) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) read with section 274 of the Act on account of the additional income offered in the return filed as discussed above in the assessment framed under section 153A/143(3) of the Act. 2.2. The assessee in response to such notice vide letter dated 20-03-2008 submitted that there was no incriminating material found during the search proceedings qua the additional income of Rs. 10,00,00,000.00 (10 crores) offered to tax. As such, the entire addition was made on account of the difference in rate adopted by the assessee vis-a-vis adopted by the Revenue while determining the value as on 1st April 1981 i.e. cost of acquisition. The assessee has taken the rate at Rs. 84.80 per square feet for the acquisition of the land whereas the AO has adopted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on any seized materials found during the search having some incriminating values. Similarly, there was also not any reference to the incriminating document found during the course of search in the order of the respective authorities. 4. On the contrary, the ld. DR submitted that the additional income was offered to tax by the assessee as a result of search proceeding carried out under section 132 of the Act. The ld. DR vehemently supported the order of the Authorities Below. 5. We have heard the rival contentions of both the parties and perused the materials available on record. The penalty in the case on hand was levied under explanation 5A of section 271(1)(c) of the Act which reads as under: "[Explanation 5A.-Where, in the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bullion, jewellery or other valuable article or there is some income based on the entry in the books of accounts/documents. Then, it shall be presumed that the assessee has either concealed the particulars of income or furnished inaccurate particulars of income. However in the case on hand, we note that there is no such allegation made by the authorities below as discussed above. 5.2. From the preceding discussion, we note that the assessee has already disclosed impugned long term capital gain in the return filed under section 139 of the Act. But the addition in the assessment framed under section 153A r.w.s. 143(3) of the Act was made on account of the difference in the rate adopted by the assessee vis-a-vis adopted by the Revenue as on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 incriminating documents were found during the course of search, therefore, Explanation 5A to section 271(1)(c) is not applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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