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TMI Blog2014 (8) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the contentions/surrender of the assessee has therefore erred in initiating the penalty and consequently levying the penalty u/s 271AAA - The overt action of the AO clearly revealed that the manner of having earned the income was accepted - Assessee has honoured the surrender made u/s 132(4) and paid the taxes thereon being part of the total surrender, which is not in dispute - The position is alike in respect of the 'surrender on account of furniture and fixtures and on account of misc. income - CIT(A) has rightly directed the AO to delete the penalty levied of ₹ 50,50,000 – thus, the order of the CIT(A) is upheld – Decided against Revenue. - ITA No.3856,3857/Del/2013 - - - Dated:- 14-8-2014 - G D Agarwal And H S Sidhu, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the manner in which undisclosed income has been earned remained not satisfied. (ii) That the appellant craves to add, delete or modify any of the grounds of appeal before or at the time of hearing. 4. The brief facts of the case are that the assessee was searched on 5.3.2009. Return of income in response to notice u/s. 142(1) and 143(2) was filed on 29.9.2009 declaring a total income of ₹ 7,36,41,640/- which was accepted u/s. 158B(1)(b) r.w.s. 271AAA was issued, which culminated into penalty of ₹ 50,50,000/-. 5. Against the above, Assessee appealed before the Ld. CIT(A), who in turn elaborately considered the submissions of the assessee, impugned penalty order, the assessment order and statements recorded u/s. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being recorded. - ITAT, Nagpur Concrete Developers vs. ACIT (ITA No.381(Nag.) of 2012 wherein various ITAT decision and Hon ble Supreme Court have been discussed as under:- DCIT vs. Pioneer Marbles Interiors P Ltd [2012] 50 SOT 571/9 taxmann.com 301, has held that if the impugned tax is paid before completion of assessment, the condition laid down under section 271AAA should be treated as satisfied. Hon ble Supreme Court decision in the case of Collector Land Acquisition vs. Mst. Katiji [1987] 167 ITR 471, has held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the assessee is covered by the aforesaid decisions and Revenue has not brought any contrary decision thereto. 7.2 We also find that the Ld. CIT(A) has considered the submissions of the assessee, the impugned penalty order, the assessment order and statements recorded u/s. 132(4). He found that it is the assessee s contention that in the course of statement u/s 132(4) the amount of ₹ 4,65,00,000/- was surrendered which was on basis of a Nevla Supari notebook seized as A-12 pages 1-4, which was accepted by the AO. As regards ₹ 40,00,000/- comprising of ₹ 20 lacs surrendered on account of furniture and fixtures and ₹ 20 lakhs on account of misc. income, the assessee submits that the explanations offered h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o rebut the claim of the assessee that the manner of earning the incomes have been substantiated. Nonetheless in the very following paragraph he has however initiate penalty, recording 'satisfaction'. The amount of ₹ 4,65,00,000/- had been stated to have been earned from commission through transaction on various land and property deal as per the seized Nevla Supari notebook from the bedroom of the assessee. This reply had been furnished by the assessee to the question for substantiating the manner of earning the same. This reply was again reiterated in question no.8 when asked if the assessee wanted to say anything more. No further question was asked by the search party and during assessment proceedings as evident from the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o initiate penalty u/s 271AAA. The AO after accepting the contentions/surrender of the assessee has therefore erred in initiating the penalty and consequently levying the penalty u/s 271AAA. The overt action of the AO clearly revealed that the manner of having earned the income was accepted. Assessee has honoured the surrender made u/s 132(4) and paid the taxes thereon being part of the total surrender, which is not in dispute. The position is alike in respect of the 'surrender on account of furniture and fixtures of ₹ 20,00,000/- and on account of misc. income of ₹ 20,00,000/-. We find that in view of the discussion above, Ld. CIT(A) has rightly directed the AO to delete the penalty levied of ₹ 50,50,000/-. 7.6 In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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