9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (2) TMI 668 - AT - Income TaxPenalty levied u/s 271AAB - assessee in the return of income has disclosed income on account of undisclosed jewellery - HELD THAT - AO has not mentioned about unearthing of any undisclosed income as defined u/s 271AAB during search action carried out at the premises of the assessee - income declared by the assessee in the return of income or found or assessed by the Assessing officer in the assessment proceedings may be relevant for assessment of the income under section 68 /69 and other related provisions of the Act and also for the levy of penalty under section 271(1)(c) of the Act in view of the relevant provisions of section 68/69 and 271(1)(c). Assessee in this case is an individual and has earned income from partnership firm and interest income. The assessee has neither earned any business income nor earned any income exceeding ₹ 50 lakhs so as to require mandatory filing of personal assets and liabilities or to maintain books of accounts; even the assessee is not required to otherwise disclose any such income to the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner before the date of search; the alleged income is not any income represented, either wholly or partly, by any entry in respect of an expense recorded in the books of account or other documents maintained in the normal course. Assessee has neither made any surrender of any undisclosed income during the search action nor the penalty has been initiated on the basis of undisclosed income found during such search action. In view of the above factual position, the impugned order of the AO imposing the penalty on the assessee under section 271AAB of the Act does not pass the mandate of the provisions of section 271AAB - Decided in favour of assessee.
Issues Involved:
1. Legality of penalty levied under section 271AAB of the Income Tax Act, 1961. 2. Definition and scope of "undisclosed income" under section 271AAB. 3. Applicability and mandatory nature of penalty under section 271AAB. 4. Procedural requirements for imposing penalty under section 271AAB. Detailed Analysis: 1. Legality of Penalty Levied Under Section 271AAB: The assessee appealed against the order confirming the penalty levied by the Assessing Officer (AO) under section 271AAB of the Income Tax Act, 1961. The penalty was related to undisclosed jewelry worth ?21,97,221/- found during a search action under section 132 of the Act. The AO initiated penalty proceedings and levied a 10% penalty on the declared income. 2. Definition and Scope of "Undisclosed Income": The term "undisclosed income" is defined under Explanation (c) to section 271AAB. It includes any income represented by money, bullion, jewelry, or other valuable articles not recorded in the books of account or disclosed to tax authorities before the search. The assessee argued that the jewelry did not qualify as "undisclosed income" because it was accumulated from gifts received on various occasions and was not required to be recorded in the books of account due to the nature of the assessee's income sources. 3. Applicability and Mandatory Nature of Penalty Under Section 271AAB: The Tribunal observed that the levy of penalty under section 271AAB is not mandatory. The use of the word "may" in the section indicates that the AO has discretion in imposing the penalty. The Tribunal referred to various judgments where it was held that the penalty under section 271AAB is not automatic and depends on the facts and circumstances of each case. The Tribunal also noted that the provisions of section 274, which require giving the assessee a reasonable opportunity of being heard, apply to the penalty proceedings under section 271AAB. 4. Procedural Requirements for Imposing Penalty Under Section 271AAB: The Tribunal emphasized that the penalty under section 271AAB can only be imposed if the income qualifies as "undisclosed income" as defined in the section. In this case, the AO initiated the penalty during the assessment proceedings based on the income disclosed by the assessee in the return of income, not on the basis of any undisclosed income found during the search. The Tribunal held that the penalty under section 271AAB was not warranted because the income declared by the assessee did not fall within the definition of "undisclosed income" and the procedural requirements were not met. Conclusion: The Tribunal quashed the penalty order, stating that the penalty imposed under section 271AAB did not meet the legal and procedural requirements. The appeal of the assessee was allowed, and the penalty was deemed bad in law. The judgment highlights the importance of adhering to the specific definitions and procedural safeguards in penalty proceedings under the Income Tax Act.
|
