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TMI Blog2016 (9) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that there was search in the case of Shri A.N. Radhakrishnan on 29.9.2008. On the basis of the material found during the course of search operation, notice was issued to the assessee u/s 153C of the Act. The assessee filed the return of income on 19.10.2020 declaring the taxable income of Rs. 4,03,911/-. The assessee has also offered an additional sum of Rs. 9,59,433/- during the course of assessment proceedings. According to the ld. DR, since the assessee has not declared the above sum of Rs. 9,59,433/- in the return of income, the assessee has concealed the income, therefore, the Assessing Officer has rightly levied penalty u/s 271(1)(c) of the Act. 4. On the contrary, Shri S.Sridhar, ld. Counsel for the assessee submitted that, in fact, Rs. 5,59,433/- was the lease advance received by the assessee's daughter, Premalatha and gift received from the assessee's husband to the extent of Rs. 4 lakhs. Even though the advance was received by the assessee's daughter and gift was from assessee's husband, the same was offered for taxation. According to the ld. Counsel, the advance lease amount cannot be construed as income of the assessee during the year under consideration. Moreover, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal is of the considered opinion that the lease advance cannot be construed as income of the assessee. Moreover, if at all any addition has to be made, it has to be made in the hands of assessee's daughter Premalatha and definitely penalty cannot be levied in the hands of the assessee. Moreover, in respect of the gift received from the assessee's husband, penalty, if any, has to be levied only in the hands of the assessee's husband. 6. Furthermore, assessment proceedings was completed u/s 153C of the Act consequent to the search conducted u/s 132 of the Act on 29.9.2008. The Parliament with effect from 1.4.2007 enacted sec. 271AAA for levy of penalty in case where search was initiated on or after 1.6.2007 but before 1.7.2012. Sub-section (3) of sec. 271AAA of the Act in categorical terms declares that no penalty can be levied u/s 271(1)(c) of the Act in respect of the undisclosed income referred to in sub-section(1) of sec. 271AAA of the Act. In the case before us, the penalty levied by the Assessing Officer squarely falls u/s 271AAA of the Act. Therefore, there cannot be any levy of penalty u/s 271(1)(c) of the Act in view of section 271AAA(3) of the Act. Therefore, this Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no justification for levy of penalty u/s 271(1)(c) of the Act. The Assessing Officer has to reappreciate the material available on record and find out whether the income actually relates to the assessee. Moreover, by sec. 271AAA of the Act, the Parliament enacted a separate provision for levy of penalty. Sub-section (3) of sec. 271AAA of the Act in categorical terms declares that no penalty can be levied u/s 271(1)(c) of the Act in respect of the income which falls in subsection( 1) of sec. 271AAA of the Act. In the case before us, admittedly, the search was conducted on 29.9.2008, therefore, penalty, if any, has to be levied only u/s 271AAA of the Act and definitely not u/s 271(1)(c) of the Act. Therefore, this Tribunal is of the considered opinion that the CIT(A) has rightly deleted the penalty levied by the Assessing Officer. 10. Now coming to assessment year 2007-08, the assessee filed the appeal against the order of the CIT(A) confirming penalty levied by the Assessing Officer u/s 271(1)(c) of the Act. 11. Shri S. Sridhar, ld. Counsel for the assessee submitted that there was a search in the case of Shri A.N. Radhakrishnan, husband of the assessee, on 29.9.2008. Conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has to be taken into consideration at the time of computing capital gains when the sale deed was executed. If the assessee has paid Rs. 40,50,000/- for purchase of the flat, the same has to be treated as income of the assessee during the year in which the advance was paid. This Tribunal is of the considered opinion that mere addition in the assessment order cannot be reason for levy of penalty u/s 271(1)(c) of the Act. The Assessing Officer has to reappreciate the material available on record and find out whether there was any concealment of income. In the case before us, both the lower authorities have not reappreciated the material available on record. Merely because the assessee offered the amount as income, they have levied/confirmed penalty u/s 271(1)(c) of the Act. The fact remains that the search was conducted in the case of Shri A.N. Radhakrishnan on 29.9.2008. Therefore, penalty, if any, has to be levied u/s 271AAA of the Act and definitely not u/s 271(1)(c) of the Act. Sub-section(3) of sec. 271AAA of the Act in categorical terms declares that no penalty can be levied u/s 271(1)(c) of the Act when the income falls u/s 271AAA(1) of the Act. In the case before us, it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undisclosed income in Thalakachery property. The assessee in fact filed a revised return on 31.10.2010. The disclosure made by the assessee was accepted by the Assessing Officer and the same was brought to taxation. According to the ld. Counsel, the entire addition was made by the Assessing Officer only on the basis of the disclosure made by the assessee voluntarily, therefore, there was no concealment of income. On appeal by the assessee, the CIT(A), however, found that the penalty was rightly levied in respect of two additions i.e investments in KK Nagar property to the extent of Rs. 14 lakhs and Thalakanchery property to the extent of Rs. 80 lakhs. However, the CIT(A) deleted penalty levied by the Assessing Officer u/s 271(1)(c) of the Act in respect of the income offered by the assessee to the extent of Rs. 86 lakhs. Therefore, the assessee filed the appeal in respect of penalty confirmed by the CIT(A) to the extent of Rs. 14 lakhs and Rs. 80 lakhs being the investments made in KK Nagar property and Thalakanchery property. 17. We have considered the rival submissions on either side and also perused the material available on record. The assessment was completed u/s 153C of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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