2019 (4) TMI 1519 - AT - Income Tax

Penalty u/s 271AAB - whether automatic post search involving the searched assessee s disclosure followed by assessment proceedings or not ? - additional income disclosures only during the course of search seizure operation - undisclosed income - specified previous year in terms of sub-clause (i) of clause (b) of Explanation to section 271AAA - meaning of the terms date of search - additional incomes suo motu and substantiated the manner of having derived the same from various business - HELD THAT - As decided in AKA LOGISTICS PVT. LTD. AMBEY MINING PVT. LTD. M/S CALCUTTA INDUSTRIAL SUPPLY CORP. 2019 (3) TMI 209 - ITAT KOLKATA imposition the impugned penalty u/s 271AAB not automatic - mere issue of notice to impose penalty u/s 271(1)(c) is not sufficient - Assessing Officer had to apply u/s 271AAB Explanations clause (a) to (c). We therefore decline Revenue s appeals. Assessing Officer s penalty show-cause notice nowhere specified the limb in issue pertaining to undisclosed income component as to whether the same related to income or expenditure side. We find no merit in assessee s instant technical plea going by learned co-ordinate bench s decision hereinabove relying upon hon ble apex court s decision in cases Sandeep Chandak vs. PCIT 2018 (6) TMI 106 - SUPREME COURT OF INDIA We therefore decline assessee s cross-objection.

Summary

Issues Involved:
1. Delay in filing of Revenue’s appeal.
2. Imposition of penalty under Section 271AAB of the Income Tax Act, 1961.
3. Confirmation or deletion of the penalty by the CIT(A).
4. Validity of the penalty proceedings and notices.
5. Applicability of judicial precedents and legislative intent.

Issue-wise Detailed Analysis:

1. Delay in Filing of Revenue’s Appeal:
The Revenue’s appeal in ITA No.2293/Kol/2017 suffered a delay of 130 days. The delay was attributed to procedural formalities and compilation of necessary records at the departmental level. The assessee did not dispute the correctness of the condonation petition. Consequently, the delay was condoned, and the appeal was taken up for adjudication on merits.

2. Imposition of Penalty under Section 271AAB:
The primary issue in these cases was whether the CIT(A) rightly confirmed the Assessing Officer’s action in imposing penalties under Section 271AAB related to a search conducted on 04.10.2012. The search led to undisclosed income disclosures, and the Assessing Officer framed the assessment accepting the disclosed income. The penalty proceedings were initiated, and the Assessing Officer levied penalties on the grounds of undisclosed income.

3. Confirmation or Deletion of the Penalty by the CIT(A):
The CIT(A) partly affirmed the penalties, confirming them only to the extent of undisclosed income corroborated by evidence found during the search. The CIT(A) relied on various judicial precedents, including the Supreme Court’s judgment in Dilip N. Shroff vs. Jt. CIT, which held that imposition of penalty is not automatic and requires discretion on the part of the Assessing Officer. The CIT(A) directed the penalty to be calculated only on the amount of undisclosed income supported by evidence found during the search.

4. Validity of the Penalty Proceedings and Notices:
The assessee argued that the penalty notices did not specify the limb of the penalty pertaining to undisclosed income or expenditure. The tribunal found no merit in this technical plea, relying on the Supreme Court’s decision in Sandeep Chandak vs. PCIT, which upheld the validity of the penalty proceedings despite such objections.

5. Applicability of Judicial Precedents and Legislative Intent:
The tribunal referred to various judicial precedents, including the decisions in CIT vs. Punjab Tyres, P.CIT vs. Dr. Vandana Gupta, and MAK Data (P) Ltd. vs. CIT, to determine the applicability of Section 271AAB. The tribunal concluded that Section 271AAB penalty applies in cases where the search leads to the discovery of undisclosed income, and it is not automatic. The tribunal upheld the CIT(A)’s findings that the penalty should be limited to the undisclosed income corroborated by evidence found during the search.

Conclusion:
The tribunal dismissed both the Revenue’s appeals and the assessee’s cross-objections. The CIT(A)’s findings were upheld, confirming the penalties only to the extent supported by evidence found during the search. The tribunal emphasized that Section 271AAB penalties are not automatic and must be based on corroborative material discovered during the search.