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2022 (5) TMI 159 - AT - Income TaxTransfer of case u/s 127 - transferring the jurisdiction of the case from Jalgaon to Nashik - jurisdiction of AO to pass orders - contention of the appellant that the Assessing Officer had no jurisdiction to pass the assessment order, as no opportunity was offered by the Commissioner of Income Tax-II, Nashik while passing the order u/s 127 - HELD THAT - We are of the considered opinion that this issue cannot be agitated in the assessment proceedings, as assessment proceedings are independent of proceedings u/s 127 of the Act. The proceedings u/s 127 are independent of the assessment proceedings, in the event an assessee is aggrieved by an order u/s 127, necessary remedy lies elsewhere as held by the Hon ble Punjab Haryana High Court in the case of Jaswinder Kaur Koover vs. CIT 2006 (11) TMI 153 - PUNJAB AND HARYANA HIGH COURT It is trite law that an assessee is barred from raising contention that no opportunity was given to the assessee while transferring the jurisdiction of the case u/s 127 from Jalgaon to Nashik as the order of the transfer of case u/s 127 was within the knowledge of the assessee during the course of assessment proceedings and still the assessee had not chosen to participate in the matter of jurisdiction of the Assessing Officer to whom the case has been transferred. The assessee cannot be allowed latter to challenge the jurisdiction of the Assessing Officer as held in the case of Pannalal Binjraj vs. Union of India 1956 (12) TMI 1 - SUPREME COURT and the Hon ble Gujarat High Court in the case of Shivabhai Khodabhai Patel vs. CIT 1999 (12) TMI 31 - GUJARAT HIGH COURT - the objection raised by the assessee challenging the transfer of jurisdiction of the case does not stand the test of the law. Thus, this contention is devoid of any merit and, accordingly, we dismiss the same. Addition based on the information contained in the document impounded from the office premises of third party - As contended that the impounded document from the premises of the third party cannot be used as incriminating material for the purpose of making addition in the assessment made pursuant to notice u/s 153A - HELD THAT - No doubt the impounded document no.98 of Annexure A-1 was impounded from the office premises of M/s. Mahavir Civil Engineering Services Pvt. Ltd. The business premises of the appellant is also same. Therefore, there is no merit in the contention of the appellant that the document was impounded from the premises of the third party. When the document was in the name of the appellant and found in the business premises of the appellant, even loose sheets is a document as mentioned u/s 132(4) r.w.s. 292C of the Act. The contention of the appellant that the documents found in possession and control of third person in the course of search, is not correct. This presumption raised u/s 132(4A) remains uncontroverted by the appellant by leading necessary evidence. It would clear that it is a document showing the receipt of commission income, the onus lies upon the assessee to show that the said transaction was reflected in the regular books of account maintained and offered to tax. In the circumstances, Assessing Officer would be justified in drawing adverse inference on failure of the assessee to explain the contents of the document. Therefore, the Assessing Officer is justified in drawing an adverse inference that the appellant is in receipt of unaccounted income - Decided against assessee. Levy of penalty u/s 271(1)(c) r.w.s. 271AAA - appellant had offered a sum of Rs.1 crore as additional income and the assessment was completed by the Assistant Commissioner of Income Tax, Central Circle-1, Nashik passed u/s 143(3) r.w.s. 153B - HELD THAT - It is admitted position that the appellant during the course of giving statement u/s 132(4) had not disclosed the manner in which the undisclosed income had been derived and its substantiation nor was there any query posed by the Investigating Officer of the Department during recording of such statement. We have carefully gone through the provisions of section 271AAA which clearly stipulates that in case search had been initiated u/s 132 on or after 1st day of June, 2007 but before the 1st day of July, 2012, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him, a sum computed at the rate of ten per cent of the undisclosed income. Admittedly, in view of the fact that the assessee had failed to disclose the manner in which the undisclosed income has derived and its substantiation, the requirements stipulated in sub-section (2) of section 271AAA does not stand specified. There is nothing in the provisions of section 271AAA to say that an assessee is required to disclose the manner in which the undisclosed income is derived and its substantiation only on a query posed to him by the Investigation Officer. Such construction only amount to adding words to the statute which is not a permissible rule of interpretation. In view of this, we find it difficult to agree with the decision of CIT vs. Mahendra C. Shah 2008 (2) TMI 32 - GUJARAT HIGH COURT and CIT v. Radha Kishan Goel 2005 (4) TMI 47 - ALLAHABAD HIGH COURT In our considered opinion, the decision of Smt. Ritu Singal 2018 (3) TMI 593 - DELHI HIGH COURT is more reasoned and considered decision and, therefore, we prefer to follow the view of the Hon ble Delhi High Court in the case of Smt. Ritu Singal (supra) and, accordingly, uphold the levy of penalty u/s 271AAA of the Act. - Decided against assessee.
Issues Involved:
1. Jurisdiction of the Assessing Officer due to lack of opportunity under Section 127. 2. Validity of additions made under Section 153A based on documents impounded from third-party premises. 3. Justification of additions made without issuing a show cause notice. 4. Charging of interest under Section 234 and initiation of penalty under Section 271(1)(c). 5. Levy of penalty under Section 271AAA for undisclosed income. Issue-wise Detailed Analysis: 1. Jurisdiction of the Assessing Officer due to lack of opportunity under Section 127: The appellant contended that the assessment order was passed without jurisdiction as no opportunity was granted under Section 127. The tribunal held that this issue cannot be agitated in assessment proceedings as they are independent of proceedings under Section 127. The remedy for grievances under Section 127 lies elsewhere. The tribunal cited precedents including the Hon'ble Punjab & Haryana High Court in Jaswinder Kaur Koover vs. CIT and the Hon'ble Supreme Court in Pannalal Binjraj vs. Union of India, concluding that the appellant, having acquiesced to the jurisdiction, cannot later challenge it. 2. Validity of additions made under Section 153A based on documents impounded from third-party premises: The appellant argued that the impounded document from third-party premises cannot be used for making additions under Section 153A. The tribunal noted that the document was found in the business premises of the appellant, thus it cannot be considered as impounded from a third party. The tribunal upheld the addition, stating that the document indicated receipt of commission income and the appellant failed to explain or provide evidence to the contrary. Therefore, the Assessing Officer was justified in making the addition based on the impounded document. 3. Justification of additions made without issuing a show cause notice: The appellant contended that the addition of Rs. 10,00,000/- was made without issuing a show cause notice, thereby denying an opportunity for rebuttal. The tribunal did not find merit in this contention and upheld the addition, emphasizing that the appellant failed to explain the contents of the impounded document, justifying the adverse inference drawn by the Assessing Officer. 4. Charging of interest under Section 234 and initiation of penalty under Section 271(1)(c): The tribunal did not provide a detailed discussion on this issue, implicitly upholding the actions of the lower authorities by dismissing the appellant's contentions and confirming the assessment order. 5. Levy of penalty under Section 271AAA for undisclosed income: The appellant argued against the penalty under Section 271AAA, stating that the disclosure of Rs. 1 crore was voluntary and no specific query was posed regarding the manner of earning the undisclosed income. The tribunal referred to the provisions of Section 271AAA and noted that the appellant failed to substantiate the manner in which the undisclosed income was derived. The tribunal preferred the view of the Hon'ble Delhi High Court in PCIT vs. Smt. Ritu Singal, which held that failure to specify the manner of deriving undisclosed income justifies the penalty. Thus, the tribunal upheld the levy of penalty under Section 271AAA. Conclusion: All three appeals of the assessee were dismissed. The tribunal upheld the jurisdiction of the Assessing Officer, the validity of additions made under Section 153A based on the impounded document, and the levy of penalty under Section 271AAA. The tribunal emphasized the appellant's failure to provide necessary explanations and evidence, justifying the actions of the lower authorities.
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