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TMI Blog2015 (9) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... mulatively satisfied the three conditions contemplated in section 271AAA(2) of the Act and accordingly is eligible for immunity from levy of penalty - Decided in favour of assessee. - ITA Nos.1773 & 1774/Kol/2012 - - - Dated:- 20-8-2015 - Shri Mahavir Singh and Shri M.Balaganesh, JJ. For The Appellant: Shri S.M.Surana, Advocate For The Respondent: Shri Amitava Bhattacharjee, JCIT,Sr.DR ORDER Per Shri M.Balaganesh, AM These appeals of assessee arise out of the order of ld. CIT(A)-Central-II, Kolkata in Appeal No.72/CC-XII/CIT(A)-C-II/11-12 dated 14.09.2012 passed for A.Y. 2008-09 and Appeal No.73/CC-XII/CIT(A)-C-II/11-12 dated 14.09.2012 passed for A.Y.2009-10 confirming the levy of penalty u/s 271AAA of the Income Tax Act, 1961 (hereinafter referred to as the Act ). The issue involved in both these appeals are identical in nature in respect of levy of penalty u/s 271AAA of the Act and hence they are taken up together and disposed off by a common order for the purpose of convenience. 2. The only issue to be decided in these appeals is as to whether the ld. CIT(A) is right in confirming the levy of penalty u/s 271AAA of the Act in the facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the years on the ground that the assessee s case does not fall under sub-section (2) of section 271AAA of the Act as cumulative conditions stipulated therein are not satisfied by the assessee. Aggrieved, the assessee challenged this issue before the ld. CIT(A), who confirmed the action of the ld. AO by stating that the assessee has not clearly substantiated the manner in which he has derived the undisclosed income. He further concluded that the assessee has not paid the tax together with the interest on the undisclosed income disclosed by him u/s 132(4) of the Act and no further evidence were produced by the assessee either before AO or before him as proof for payment of tax and accordingly the assessee is not entitled for immunity from levy of penalty u/s 271AAA (2) of the Act. Aggrieved, the assessee challenged this issue before this Tribunal for both the years. 4. Shri S. M. Surana, Advocate, the ld. AR appeared on behalf of the assessee and Shri Amitava Bhattcharjee, JCIT, Sr. DR, the ld. DR appeared on behalf of the revenue. 5. The ld. AR argued that pursuant to the search conducted in the premises of the assessee on 11.09.2008, the assessee had made a disclosu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the course of the search and seizure operation, the assessee, vide his disclosure petition filed before the ADIT (Investigation), Unit-III(4), Kolkata had disclosed an amount of ₹ 1,60,06,550/- being his undisclosed income during the F.Y. 2007-08 relevant to the Assessment Year 2008-09. During the course of the assessment proceedings, a statement of the assessee was recorded u/s 131 of the Act on 10.11.2010. In his statement, in reply to Question No.2, while explaining the basis, working and the manner in which the said income disclosed was earned, Shri Naresh Chandra Agrawalla stated as under :- First of all, let me state that there was a mistake in the computation of undisclosed income in my disclosure petition filed before the ADIT (Investigation), Unit-III(4), Kolkata whereby I had disclosed ₹ 1,60,06,550/- in aggregate during the Financial Years 2007-08 and 2008-09. However, I have detected the said mistake and subsequently disclosed ₹ 27,88,222/- in my return of income filed u/s 153A for the A.Y. 2008-09 (relevant to the F.Y. 2007-08) and ₹ 1,59,71,000/- in my return of income filed u/s 139 for the A.Y. 2009-10 (relevant to the F.Y.2008-09). I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R/5. Page Nos.7,8,9,10,12 and 13 of VAR/5 reveal cash receipts of ₹ 5,45,000/- (in aggregate) by me as loan not recorded in my regular books of accounts. These receipts are included in the cash found and disclosed by me. Further, in reply to Question No.4, while explaining the contents of page 21 of the seized documents ALT/15, Shri Naresh Chandra Agrawalla stated as under :- During the F.Y. 2007-08, I and my group/family separated away from M/s. Akshara Highrise Pvt. Ltd. in which I was a director due to some disputes. For this, the Net Worth of M/s Akshara Highrise Pvt. Ltd. was worked out to ₹ 68,03,117/- as appears from this Page No0.21 of ALT/15. I received 1/3rd share of the same, i.e., ₹ 22,67,672/- (Rs.60,000/- in cheque and ₹ 22,07,672/- in cash) on behalf of my group/family during the F.Y. 2007-08 itself from Shri Prakash Chandra Agrawalla and his group which is known as the Akshara Group . I would like to state here that this amount of ₹ 22,07,672/- is part of the amount of ₹ 27,58,222/- disclosed by me as explained in my reply to your question No.2 above. The ld. AR further argued that the assessee had duly substantiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayed for confirmation of the orders of the lower authorities. 7. We have heard the rival submissions and perused the materials available on record. It is not in dispute that the assessee had initially made a disclosure statement u/s 132(4) of the Act pursuant to the search conducted on 11.09.2008 to the tune of ₹ 1,60,06,550/- for A. Yrs. 2008-09 and 2009-10 put together. It is also not in dispute that the assessee on realizing certain calculation mistake in the said disclosure statement came forward to file a revised disclosure statement to the tune of ₹ 1.88 crores as below :- A.Y. 2008-09 : ₹ 27,88,222/- A.Y. 2009-10 : Rs.1,59,71,000/- Rs.1,87,59,222/- It is also not in dispute that there was a seizure of cash by the department at the time of search to the tune of ₹ 1,78,25,000/-. It is seen that the assessee had filed regular return of income for A.Y. 2008-09 on 31.03.2009. The due date of filing the return of income for 2008-09 is 30.09.2008 and admittedly the search happened on 11.09.2008 and hence we c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been regularized by the Revenue, the explanation of the assessee that he has declared the additional income to buy peace of mind and to come out of vexed litigation could be treated as bona fide, accordingly the levy of penalty u/s 271(1)(c) was held to be not justified. In the instant case before us, as per the disclosure made by the assessee the return was filed which has been accepted as it is, without making any alterations therein nor was there any adverse observation in the assessment order, with regard to any discrepancy to correlate the same with the amount of disclosure. Hence we find that there was no malafide intention on the part of the assessee to conceal the figures from the department while giving the disclosure statement u/s 132(4) of the Act. Now it is to be seen that whether the assessee had satisfied the cumulative conditions contemplated in 271AAA(2) of the Act. For the sake of convenience the provisions are reproduced herein :- 271 AAA (2) Nothing contained in sub-section 91) shall apply if the assessee, - (i) in the course of the search, in a statement under sub-section (4) of section132,admits the undisclosed income and specifies the mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition, in the present case also stood satisfied. According to the Department, the assessee was not entitled to immunity under clause (2 ) as he did not satisfy the third condition for availing the benefit of waiver of penalty under section 271(1)(c) as the assessee failed to file his return of income on 31st July, 1987 and pay tax thereon particularly when the assessee conceded on August 1, 1987 that there was concealment of income. The third condition under clause (2) was that the assesee had to pay the tax together with interest, if any, in respect of such undisclosed income. However, no time limit for payment of such tax stood prescribed under clause (2). The only requirement stipulated in the third condition was for the assessee to pay tax together with interest . In the present case, the third condition also stood fulfilled. The assessee has paid tax with interest upto the date of payment. The only condition which was required to be fulfilled for getting the immunity, after the search proceedings got over, was that the assessee had to pay the tax together with interest in respect of such undisclosed income upto the date of payment. Clause (2) did not prescribe the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt order. It is, thus, obvious that the expression in the course of any proceedings under this Act cannot have the reference to survey proceedings, in this case. 15. It necessarily follows that concealment of particulars of income or furnishing of inaccurate particular of income by the assessee has to be in the income tax return filed by it. There is sufficient indication of this in the judgment of this court in the case of CIT v. Mohan Das Hassa Nand (1983) 141 ITR 203 (Del) and in Reliance Petroproducts Pvt. Ltd. (supra), the Supreme Court has clinched this aspect, viz., the assessee can furnish the particulars of income in his return and everything would depend upon the income tax return filed by the assesses. This view gets supported by Explanation 4 as well as 5 and 5A of section 271 of the Act as contended by the learned counsel for the respondent. 16. No doubt, the discrepancies were found during the survey. This has yielded income from the assessee in the form of amount surrendered by the assessee. Presently, we are not concerned with the assessment of income, but the moot question is to whether this would attract penalty upon the assessee under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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