2016 (7) TMI 457 - AT - Income Tax

Non-levy of Penalty u/s 271AAA - revision u/s 263 - Held that - In support of claim the assessee has produced the ledger copy of the party where we find that all the transactions were routed through banking channel. After considering the submissions of the both parties and facts of the facts we find that assessee has duly substantiate the manner in which the undisclosed income was derived. We also find the AO being quasi judicial authority has not initiated the penalty proceedings in the assessment order is his jurisdictional authority. The ld. CIT cannot just substitute the authority of the AO with his opinion. Thus assessee is very much entitled for impounded from the penalty proceedings as specified u/s. 271AAA of the Act sub clause (2) of the Act. Therefore in our considered view, we find the impugned revision order unsustainable in law, and we, therefore, cancel the same. - Decided in favour of assessee

Issues Involved:
1. Legality of the revision order passed under Section 263 of the Income Tax Act, 1961.
2. Requirement of initiating penalty proceedings under Section 271AAA of the Act.
3. Compliance with the conditions for immunity from penalty under Section 271AAA.
4. Examination of whether the Assessing Officer's (AO) order was erroneous and prejudicial to the interest of revenue.
5. Jurisdiction of the Commissioner of Income Tax (CIT) under Section 263 to revise the AO's order.

Issue-wise Detailed Analysis:

1. Legality of the Revision Order Passed Under Section 263:
The primary issue in this appeal was whether the revision order passed by the CIT under Section 263 of the Income Tax Act, 1961, was valid. The CIT had revised the assessment order on the grounds that the AO had not initiated penalty proceedings under Section 271AAA. The Tribunal examined the conditions under Section 263, which require that the order must be both erroneous and prejudicial to the interest of revenue. The Tribunal concluded that the AO's order was not erroneous as it was a possible view that no penalty was leviable, and thus, the revision order was unsustainable in law.

2. Requirement of Initiating Penalty Proceedings Under Section 271AAA:
The CIT held that it was mandatory for the AO to initiate penalty proceedings under Section 271AAA, as the assessee had disclosed an undisclosed income of ?18.10 crores. However, the Tribunal noted that the AO had considered the conditions for immunity from penalty under Section 271AAA and had determined that no penalty was necessary. The Tribunal emphasized that the AO's decision not to initiate penalty proceedings was within his jurisdictional authority and could not be substituted by the CIT's opinion.

3. Compliance with the Conditions for Immunity from Penalty Under Section 271AAA:
The Tribunal examined whether the assessee had fulfilled the conditions for immunity from penalty under Section 271AAA(2). These conditions include admitting the undisclosed income, specifying and substantiating the manner in which such income was derived, and paying the tax along with interest. The Tribunal found that the assessee had indeed fulfilled these conditions by disclosing the income during the search, substantiating the manner of deriving the income, and paying the due tax and interest. Therefore, the Tribunal concluded that the AO's decision not to initiate penalty proceedings was justified.

4. Examination of Whether the AO's Order Was Erroneous and Prejudicial to the Interest of Revenue:
The Tribunal referred to the legal standards for determining whether an order is erroneous and prejudicial to the interest of revenue. It cited the case of CIT vs. Gabriel India Ltd., where it was held that an order is erroneous if it is not in accordance with law and prejudicial if it causes a loss of revenue. The Tribunal found that the AO had exercised his quasi-judicial powers correctly and that the CIT could not substitute his judgment for that of the AO. The Tribunal concluded that the AO's order was neither erroneous nor prejudicial to the interest of revenue.

5. Jurisdiction of the CIT Under Section 263 to Revise the AO's Order:
The Tribunal emphasized that the CIT's power under Section 263 is supervisory and can only be exercised if the order is both erroneous and prejudicial to the interest of revenue. The Tribunal noted that the CIT had not provided sufficient material to prove that the AO's order met these criteria. The Tribunal reiterated that the CIT could not initiate revision proceedings based on a mere difference of opinion or without concrete evidence of error and prejudice. Consequently, the Tribunal held that the CIT had overstepped his jurisdiction under Section 263.

Conclusion:
The Tribunal allowed the assessee's appeal, canceling the revision order passed by the CIT under Section 263. The Tribunal found that the AO's decision not to initiate penalty proceedings under Section 271AAA was a valid exercise of his jurisdictional authority and that the CIT had no grounds to revise the order. The Tribunal's decision was pronounced in open court on 29/06/2016.

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