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TMI Blog2016 (10) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty under Section 271(1)(c) of the Act. In view of the specific prohibition under Section 271AAA(3) of the Act, this Tribunal is of the considered opinion that the Assessing Officer cannot levy penalty under Section 271(1)(c) of the Act. Therefore, the CIT(Appeals) ought to have deleted the entire penalty levied by the Assessing Officer. In view of the above, this Tribunal is unable to uphold the orders of the lower authority. Accordingly, the orders of the Assessing Officer, as confirmed by the CIT(Appeals), are set aside and the entire penalty levied by the Assessing Officer is deleted. - Decided in favour of assessee. - ITA No.987/Mds/2013, ITA No.1306/Mds/2013, ITA No.1306/Mds/2013 - - - Dated:- 1-9-2016 - SHRI N.R.S. GANESAN, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. counsel, there was no concealment of income on the part of the assessee. 3. Shri G. Baskar, the Ld. counsel for the assessee, further submitted that during the year under consideration, the assessee has sold her share of property at Tirupathi for a sale consideration of ₹ 22 lakhs. In fact, the assessee s mother Smt. Sakunthala Rangarajan acquired the property through her mother by way of gift on 30.08.1980. In turn, Smt. Sakunthala Rangarajan gifted the property to her three daughters equally on 29.06.2003. The said property was sold on 21.11.2005 for a sale consideration of ₹ 66 lakhs. The assessee s 1/3rd share comes to ₹ 22 lakhs. While computing the long term capital gains, the assessee took the cost of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel, that would not automatically levy penalty under Section 271(1)(c) of the Act. 5. On the contrary, Shri Supriyo Pal, the Ld. Departmental Representative, submitted that the Assessing Officer levied penalty in respect of three additions. Out of three additions on which penalty was levied, the CIT(Appeals) confirmed the penalty levied by the Assessing Officer in respect of only one addition. In respect of two other additions, the CIT(Appeals) deleted the penalty levied by the Assessing Officer. Therefore, the Revenue has also filed appeal in I.T.A. No.1306/Mds/2013 in respect of deletion of penalty by the CIT(Appeals). In respect of the penalty levied on the addition of ₹ 9 lakhs, the CIT(Appeals) found that the assessee coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year under consideration. Since the assessee claims cash balance as on 01.04.2002, it is for the assessee to establish the cash balance by producing necessary material. Since such material was not produced, according to the Ld. D.R., the addition was made. Therefore, according to the Ld. D.R., the CIT(Appeals) has rightly confirmed the penalty levied by the Assessing Officer. 6. The Ld. Departmental Representative further submitted that with regard to addition of ₹ 11.97,289/-, being the difference between the income shown in the return of income under Section 153A of the Act and the original return, the assessee has offered entire amount for taxation. Since it was unearthed during the course of search operation, the CIT(Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med the penalty levied by the Assessing Officer. The CIT(Appeals) has also deleted the penalty with regard to difference between the income returned in the original return and the return filed under Section 153A of the Act. The fact remains that there was search operation in the year 2010 and undisclosed income was assessed under Section 153A of the Act. Therefore, this Tribunal is of the considered opinion that the penalty, if any, can be levied only under Section 271AAA of the Act. In other words, the undisclosed income computed by the Assessing Officer squarely falls in subclause (i) of 271AAA of the Act. Therefore, in view of sub-section (3) of Section 271AAA of the Act, there cannot be any levy of penalty under Section 271(1)(c) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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