2019 (6) TMI 143 - AT - Income Tax

Penalty proceedings u/s 271AAA - undisclosed income - Notice was issued initiating penalty proceedings u/s 274 r.w.s. 271AAA of the Act and the penalty imposed thereon u/s 271AAB - AR submitted that at the time of search seizure operation, no incriminating documents were seized and the transactions were recorded in the books and argued that there was no concealment of income by the assessee - HELD THAT - As decided in GANPATI INDUSTRIAL PVT. LTD., JEKAY INTERNATIONAL PVT. LTD. VERSUS DCIT, CIRCLE-4 (2) , KOLKATA 2019 (2) TMI 1631 - ITAT KOLKATA there is no dispute regarding the payment of tax together with interest in respect of such undisclosed income and the specified date of filing return of income. So, therefore, it is clear from the record that the assessee admitted undisclosed income and the statement was recorded u/s 132(4) of the Act to that effect. The assessee also explained the manner of such earning i.e. out of commodity profit in AO s order. In our opinion, the assessee is liable to pay penalty as the facts and circumstances of the present case fulfilled the conditions that required to attract penalty @ 10% in terms of clause (a) of sub-section (1) of section 271AAB The Hon ble Supreme Court has upheld the above judgement and is reported as Sandeep Chandak vs Pr.CIT 2018 (6) TMI 106 - SC ORDER pleased to hold that the provisions of Section 271AAB automatically attracts and the proceedings are to be carried out/completed where a search and seizure operation is carried out in which the assessee have surrendered the amount u/s 132(4) statement of undisclosed income, specify the manner in which this income was derived, filed return of income, admit the same and had paid taxes and interest on the same. No infirmity in the order of CIT(A) and it is justified. Thus, ground no-1 raised by the assessee is dismissed.

Issues Involved:

1. Validity of penalty proceedings initiated under Section 271AAA and subsequently imposed under Section 271AAB of the Income Tax Act, 1961.
2. Whether the penalty under Section 271AAB is maintainable in the absence of specific mention of the applicable limb.
3. The relevance of incriminating material found during search operations.
4. The applicability of Section 292B in curing defects in penalty notices.
5. The necessity of recording satisfaction in the assessment order for initiating penalty proceedings.

Issue-wise Detailed Analysis:

1. Validity of Penalty Proceedings Initiated Under Section 271AAA and Subsequently Imposed Under Section 271AAB:

The appellant argued that the penalty proceedings initiated under Section 271AAA and subsequently imposed under Section 271AAB were not maintainable. The respondent countered that the initial notice under Section 271AAA was followed by a notice under Section 271AAB, and the penalty imposed was based on the latter notice. The Tribunal noted that the search and seizure operation was conducted on the Jalan Group, and similar issues were previously decided in favor of the department. The Tribunal found that the AO had requisite jurisdiction to impose the penalty under Section 271AAB, and the initial reference to Section 271AAA did not invalidate the proceedings.

2. Whether the Penalty Under Section 271AAB is Maintainable in the Absence of Specific Mention of the Applicable Limb:

The appellant contended that the specific limb of Section 271AAB was not mentioned by the AO, rendering the penalty unsustainable. The respondent argued that Section 271AAB does not have specific limbs but different situations with varying penalty rates. The Tribunal agreed with the respondent, stating that the case fell under the situation attracting a 10% penalty rate, and the penalty was rightly imposed.

3. The Relevance of Incriminating Material Found During Search Operations:

The appellant claimed that no incriminating documents were seized during the search, and all transactions were recorded in the books. The respondent presented documents as incriminating material and argued that the appellant disclosed the same as undisclosed income under Section 132(4). The Tribunal noted that the search resulted in the disclosure of ?5 crores as undisclosed income, which was admitted by the appellant. The Tribunal found that the penalty provisions under Section 271AAB were applicable as the appellant admitted the undisclosed income, specified the manner of earning, and paid the tax along with interest.

4. The Applicability of Section 292B in Curing Defects in Penalty Notices:

The respondent argued that even if the wrong provision was quoted, the authority's jurisdiction was not affected, and the order could not be invalidated solely on that ground. The Tribunal agreed, citing the principle that mentioning a wrong provision does not invalidate an order if the authority has the requisite jurisdiction. The Tribunal found that the appellant had participated in the proceedings and could not later claim the notice was invalid.

5. The Necessity of Recording Satisfaction in the Assessment Order for Initiating Penalty Proceedings:

The respondent argued that the notice initiating penalty could not be declared invalid if the AO had arrived at a prima facie satisfaction for initiation of penalty proceedings. The Tribunal agreed, stating that the AO had discussed the facts and circumstances leading to the initiation of penalty proceedings under Section 271AAB in the assessment order. The Tribunal found that the AO had the requisite satisfaction for initiating the penalty proceedings.

Conclusion:

The Tribunal upheld the penalty imposed under Section 271AAB, finding no infirmity in the order of the CIT(A). The Tribunal dismissed the appellant's grounds, stating that the penalty provisions under Section 271AAB were applicable as the appellant admitted the undisclosed income, specified the manner of earning, and paid the tax along with interest. The Tribunal also found that the initial reference to Section 271AAA did not invalidate the proceedings, and the AO had the requisite jurisdiction to impose the penalty. The appeal of the assessee was dismissed.

← Previous Next →