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2018 (5) TMI 422 - AT - Income TaxPenalty imposed u/s. 271AAB - Penalty where search has been initiated - Held that - Respectfully following the decision of the coordinate bench of this Tribunal in the case of the other assessee s 2018 (2) TMI 972 - ITAT KOLKATA who were subjected to search and who had offered undisclosed income from commodity profit cannot be levied penalty u/s. 271AAB of the Act, in the facts and circumstances of this case, we confirm the order of the Ld. Ld. CIT(A) stating commodity profit recorded in the other document maintained by the assessee which was retrieved during search cannot be termed as undisclosed Income in the definition given u/s. 271AAB of the Act. - Decided in favour of assessee.
Issues Involved:
1. Imposition of penalty under Section 271AAB of the Income-tax Act, 1961. 2. Determination of whether the income from speculative trading is "undisclosed income." 3. Interpretation of the word "may" in Section 271AAB regarding the discretionary nature of penalty imposition. 4. Requirement for maintaining books of account under Section 44AA of the Act. 5. Validity of the assessment order and its implications on penalty proceedings. Detailed Analysis: Issue 1: Imposition of Penalty under Section 271AAB The primary issue revolves around the penalty imposed under Section 271AAB of the Income-tax Act, 1961, which pertains to the penalty for undisclosed income found during a search operation. The penalty was based on the search and seizure operation carried out against the Neezone Group on 01.08.2012. The assessee admitted to an undisclosed income of ?1,50,00,000 and ?2,55,00,000 for AY 2013-14, respectively. Issue 2: Determination of "Undisclosed Income" The Tribunal examined whether the income from speculative trading, admitted during the search, qualifies as "undisclosed income." The AO had levied the penalty on the grounds that the income from commodity profit was not reflected in the regular books of account. However, the Tribunal noted that the assessee had substantiated the manner in which the income was derived, furnished the return of income, and paid the tax along with interest. The Tribunal concluded that the income was recorded in "other documents" maintained in the normal course of business, retrieved during the search, and thus, it does not fall under the definition of "undisclosed income" as per Section 271AAB. Issue 3: Interpretation of "May" in Section 271AAB The Tribunal addressed the argument that the word "may" in Section 271AAB implies discretion for the AO to levy the penalty. It was argued that the penalty provisions should be construed strictly, and the use of "may" grants the AO discretion. The Tribunal agreed with this interpretation, citing a similar adjudication by ITAT Lucknow, which held that penalty under Section 271AAB is not mandatory but discretionary. Issue 4: Requirement for Maintaining Books of Account The Tribunal considered whether the assessee, an individual drawing salary income and engaged in speculative trading for the first time, was required to maintain books of account under Section 44AA. It was noted that the assessee had shown income under "Income from Other Sources" and not "Business or Profession." The Tribunal clarified that Section 44AA applies to those engaged in business or profession, and since the assessee's income was from other sources, they were not required to maintain books of account. The Tribunal emphasized that the AO accepted the assessee's classification of income without contesting it, thus crystallizing the nature of the income. Issue 5: Validity of the Assessment Order The Tribunal highlighted that the AO's assessment order accepted the income as "Income from Other Sources," which was not contested during the assessment proceedings. The Tribunal found that the AO's observation in the assessment order was flawed, as it was based on the nomenclature used in the Income & Expenditure Account rather than the actual head of income. The Tribunal concluded that the AO cannot change the character of income in the penalty proceedings without contesting it during the assessment. Conclusion: The Tribunal upheld the order of the CIT(A) and dismissed the appeals of the revenue, concluding that the penalty under Section 271AAB was not mandatory and that the income from speculative trading recorded in other documents does not qualify as "undisclosed income." The Tribunal emphasized the discretionary nature of the penalty and the non-requirement for maintaining books of account for income classified under "Other Sources." The assessment order's acceptance of the income classification was deemed final, and the penalty proceedings could not alter this classification.
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