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2019 (10) TMI 997 - AT - Income TaxPenalty u/s 271AAB - surrender of income during the search and seizure action - HELD THAT - Tribunal in case of Shri Surajmal Bansal HUF and others including Shri Navneet Bansal Vs DCIT who is husband of the assessee has considered the issue of levy of penalty U/s 271AAB of the Act arising from the disclosure and surrender made by the other family members of the assessee under the same search and seizure action conducted on 05/02/2015. In the case in hand the surrender was made in respect of entries found regarding the advance in names of certain persons for land and otherwise which are identical entries as in case of other family members and particularly in the case of the husband of the assessee Shri Navneet Bansal Vs. DCIT 2019 (4) TMI 1113 - ITAT JAIPUR decided the leviability of penalty U/s 271AAB of the Act in the identical facts and circumstances and considering this issue as common in respect of all the four appeals of the family members and the HUF. Following the earlier order of this Tribunal passed in the identical facts and circumstances of the case penalty levied in the present appeal U/s 271AAB of the Act is deleted. - Decided in favour of assessee
Issues Involved:
1. Validity of the notice issued for initiating penalty under Section 271AAB of the Income Tax Act, 1961. 2. Justification of the penalty imposed under Section 271AAB of the Income Tax Act, 1961. Issue-wise Detailed Analysis: 1. Validity of the Notice Issued for Initiating Penalty Under Section 271AAB: The assessee argued that the notice issued by the Assessing Officer (A.O.) for initiating penalty under Section 271AAB was not in accordance with the law as it did not specifically point out the default for which the penalty was sought to be imposed. This issue, however, was not adjudicated upon as the Tribunal decided the case on merits. 2. Justification of the Penalty Imposed Under Section 271AAB: The Tribunal examined whether the penalty under Section 271AAB was justified. The assessee had surrendered a sum of ?1.30 crores during a search and seizure action and included this amount in the return of income. The A.O. imposed a penalty of ?13,00,000 under Section 271AAB, which was upheld by the Commissioner of Income Tax (Appeals) [CIT(A)]. The Tribunal noted that in a similar case involving other family members of the assessee, the penalty under Section 271AAB was deleted. The Tribunal emphasized that the penalty under Section 271AAB is not automatic and the A.O. has the discretion to decide based on the facts and circumstances whether the income disclosed during the search qualifies as "undisclosed income." The Tribunal referred to the definition of "undisclosed income" under Section 271AAB, which includes income represented by money, bullion, jewelry, or other valuable articles or entries in books of account or other documents found during the search. In this case, the Tribunal found that the entries related to advances for land purchase were recorded in a diary, which is considered as "other documents" maintained in the normal course. The Tribunal observed that these entries would have been recorded in the assessee’s capital account and balance sheet by the end of the financial year, not necessarily by the date of the search. The Tribunal also pointed out that an advance represents an outflow of funds, whereas the definition of "undisclosed income" under Section 271AAB focuses on inflow of funds not recorded in the books of account. The Tribunal concluded that the advances for land purchase did not qualify as "undisclosed income" under Section 271AAB. Additionally, the Tribunal referenced its earlier decisions in similar cases, where it was held that the deeming provisions of Sections 69 and 69B of the Income Tax Act, which deal with unexplained investments, could not be automatically applied to penalty proceedings under Section 271AAB. Based on these observations, the Tribunal deleted the penalty imposed under Section 271AAB on the advances for land purchase. The Tribunal's decision was consistent with its earlier rulings in similar cases involving the assessee's family members. Conclusion: The Tribunal allowed the appeal of the assessee, deleting the penalty imposed under Section 271AAB of the Income Tax Act, 1961. The decision was based on the interpretation that the advances for land purchase did not constitute "undisclosed income" as defined under Section 271AAB, and the penalty was not mandatory but discretionary, to be imposed based on the merits of each case.
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