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2013 (10) TMI 693 - AT - Income TaxPenalty u/s 158BFA - Block assessment - undisclosed income - Held that - No evidence found as a result of search - undisclosed income has been computed merely on the basis of the surrender made by the assessee in the course of the block assessment proceedings. De hors the surrender, there is no evidence which could have been said to have been found as a result of the search and, therefore, the computation of undisclosed income by the Assessing Officer in the block assessment proceedings cannot be construed as a determination of undisclosed income contemplated under section 158BC(c) or 158BB, addition is not made on the basis of any evidence found in the course of search, the penalty imposed by the Assessing Officer under section 158BFA(2) is not sustainable - Following decision of Beena Rani Versus Deputy Commissioner of Income-tax 2010 (5) TMI 648 - ITAT DELHI - Decided in favour of assessee.
Issues Involved:
1. Justification of penalty levied under Section 158BFA(2) of the Income-tax Act. 2. Requirement of recording satisfaction before imposing penalty under Section 158BFA(2). Detailed Analysis: Issue 1: Justification of Penalty Levied under Section 158BFA(2): The appeal concerns the levy of a penalty amounting to Rs. 3,00,000 under Section 158BFA(2) of the Income-tax Act for the block period from Assessment Year 1988-89 to 1998-99. The penalty was primarily based on findings from a search and seizure operation conducted on 3.9.1997, which revealed certain undisclosed incomes and investments not recorded in the books of account. The Assessing Officer assessed an income of Rs. 5,37,597, which included: - An undisclosed profit of Rs. 1,40,539 based on seized documents (Annexure A-25), which were not included in the regular books of account. - An addition of Rs. 3,15,179 on account of undisclosed investment in the business, rejecting the Assessee's claim of cash loans from various persons. The CIT(A) initially deleted these additions, but the ITAT reversed this decision, stating that: - The Annexure A-25 was not maintained in the normal course of business, lacking entries for payments or receipts of money. - The Assessee failed to produce parties or express inability to do so, and the material found during the search indicated undisclosed income. The penalty was confirmed by the CIT(A) on the grounds that the document A-25 was not intended for tax declaration and the undisclosed investment was neither recorded nor proven. Issue 2: Requirement of Recording Satisfaction Before Imposing Penalty: The Assessee argued that the levy of penalty under Section 158BFA(2) is discretionary and not mandatory. The Assessee cited several cases (CIT v. Harkaran Das Ved Pal, CIT v. Satyendra Kumar Dosi, and CIT v. Dodsal Ltd.) to support the claim that the Assessing Officer should have examined whether it was a fit case to exercise discretion in favor of the Assessee, especially since penalty proceedings are independent of assessment proceedings. The Assessee contended that: - There was no finding that any purchase or sale transaction was not recorded in the seized annexure. - The income of Rs. 1,48,539 was computed based on entries in the seized annexure, indicating that the income was discernible from the record maintained. - The addition of Rs. 3,15,179 was an ad hoc addition and not based on any material found during the search. The Ld. DR argued that the additions made during the assessment were confirmed by the ITAT and that the Assessee had admitted to undisclosed income recorded in the seized documents. The ITAT agreed with the Assessing Officer's finding that the seized document A-25 was maintained only for the Assessee's own information and not for tax declaration. The Tribunal examined the matter independently, noting that penalty proceedings are separate from assessment proceedings. It was observed that: - The question of whether the stock register amounts to books of account was debatable, with different conclusions drawn by the Assessing Officer, CIT(A), and ITAT. - No finding was recorded that any transaction was not included in the seized document, nor that any rate or quantity was incorrectly recorded. - The addition of Rs. 3,15,179 was ad hoc and not based on any material found during the search. Citing 'Beena Rani v. Dy. CIT', the Tribunal held that penalty under Section 158BFA(2) could not be imposed for ad hoc additions not based on seized material. The Tribunal found that the penalty levied was not maintainable, as the Assessing Officer did not consider the discretionary nature of the penalty proceedings. Conclusion: The Tribunal concluded that the penalty levied under Section 158BFA(2) was not justified and deleted the same. The appeal filed by the Assessee was partly allowed. The order was pronounced in the open court on 11.10.2013.
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