2019 (10) TMI 655 - AT - Income Tax

Levy of penalty u/s.271AAA - Assessee has admitted the undisclosed income in the statement recorded u/s.132(4) of the Act in the course of search - HELD THAT - There is no dispute in respect of the first condition, i.e. that the assessee has admitted the undisclosed income in the statement recorded u/s.132(4) of the Act in the course of search. Answer to Qn. No.13 as has been extracted above clearly shows that the assessee has substantiated the manner in which he has derived this income and he has substantiated the manner in which it was derived being the commission income from various commission businesses. Admittedly, no further question has also been asked to further probe or into the issue, as obviously, the search has revealed the various business incomes and source of income of the assessee. Therefore, conditions Nos.2 3 have also been complied with. In respect of condition No.4, the fact remains that the assessee has disclosed quantities and substantiated the quantities and the variation in the assessment and the returned income is only on account of rates in respect of the gold jewellery. The quantum of the jewellery representing the undisclosed investment in the jewellery has not been varied and the rate which has been adopted by the assessee is not a rate, which is improbable or unsustainable. In fact, the assessee has given his explanation for adopting the rate of ₹ 1450/- as against ₹ 1,850/- mentioned in the statement recorded and even the rate of ₹ 1850/- as stated by the assessee to be the rate on the date of search, has also been discarded and the AO had adopted the rate of ₹ 1872/- which is again a higher figure. This has also been accepted by the assessee after the first appeal. The difference is also an admitted fact and taxes and interest in respect of addition representing the undisclosed income in respect of 27.645 Kgs of gold as disclosed by the assessee at ₹ 1450/- per gram, has also been paid by the assessee. Taxes on the same has also been paid by the assessee before filing of the return, thus, the condition No.4 also stands complied. This being so, we are of the view that no penalty u/s.271AAA of the Act is liable to be levied on the assessee and consequently, delete the penalty as levied by the Assessing Officer and confirmed by the ld.CIT(A). - Decided in favour of assessee.

Summary

Issues:
Levy of penalty u/s.271AAA of the Act for undisclosed income admitted during search operation.

Analysis:
The appeal was filed against the Commissioner of Income-tax (Appeals) order confirming the penalty u/s.271AAA of the Act for the assessment year 2011-12. The assessee, a partner in a firm dealing with gold jewelry, admitted undisclosed income on excess gold jewelry found during a search operation. The conditions under section 271AAA were examined. The first condition, admission of undisclosed income in a statement recorded u/s.132(4) of the Act, was accepted. The second and third conditions, specifying and substantiating the manner of income derivation, were also met. The fourth condition, payment of tax with interest on undisclosed income, was disputed as the assessee adopted a lower rate for tax calculation. However, it was argued that the rate chosen was justified based on the acquisition cost of the jewelry. The Tribunal found that all conditions were fulfilled, leading to the deletion of the penalty.

The Tribunal noted that the assessee had substantiated the manner of income derivation and had paid taxes on the undisclosed income before filing the return. The variation in the rate of gold jewelry valuation did not affect the quantity of undisclosed investment. The chosen tax rate was deemed reasonable, considering the circumstances. As all conditions under section 271AAA were satisfied, the penalty was deemed not applicable. The appeal was allowed, and the penalty levied by the Assessing Officer was deleted.

In conclusion, the Tribunal ruled in favor of the assessee, finding that the penalty u/s.271AAA of the Act was not justified as all conditions specified under the section were met. The appeal was allowed, and the penalty was deleted.