9911796707
TMI Blog2016 (11) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2. The Learned Commissioner of Income Tax, Appeal - 40 erred in law & on facts in stating that the appellant's AR reliance on the decision of the Hon'ble Gujarat High Court in the case of CIT vs. Mahendra C. Shah ( 299 ITR 305 ) & Allahabad High Court in the case of CIT vs. Radha Kishan Goel (278 ITR 454) & Also Hon'ble ITAT decision in the case of Mls Kanakia Spaces Pvt. Ltd. ( ITA No. 6763/MUM/2011 ) is distinguishable from our case. 3. Rival contentions have been heard and record perused. 4. In this case, assessee is aggrieved for levy of penalty of Rs. 1.00 lakh u/s.271AAA in respect of cash amount surrendered during course of search for which due taxes were deposited with interest. 5. The facts in brief are that dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of CIT vs. Mahendra C. Shah (299 ITR 305) the Hon'ble Gujarat High Court considered similar statement under section 132(4) to grant immunity under section 271(1)(c). The Hon'ble High Court held as under:- "When the statement is being recorded by the authorized officer it is incumbent upon the authorized officer to explain the provisions of Explanation 5 in entirety to the assessee concerned and the authorized officer cannot stop short at a particular stage so as to permit the Revenue to take advantage of such a lapse in the statement. The reason is not far to seek. In the first instance, the statement is being recorded in the question and answer form and there would be no occasion for an assessee to state and make averment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any modification. Revenue's grounds are rejected. 8. Learned AR also placed on record the order of ITAT-Delhi Bench in case of Sudha Gupta in ITA No.5445/Del/2012 dated 22/08/2014, wherein similar penalty imposed for the amount surrendered during course of search was deleted by Tribunal. 9. Reliance was also placed on the decision of ITAT Mumbai in the case of Gulabrai V Gandhi vs. ACIT, reported as 84 ITD 370 (ITAT Mumbai), wherein it was held that when the statement u/s 132(4) was recorded in question and answer form, the benefit of immunity from penalty cannot be denied to the assessee on the ground of not specifying the manner in which income was derived by her. 10. On similar facts ITAT, Delhi in the case of Mrs. Raj Rani Gupt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been decided by various High Courts. Before 1.6.2007, the penalty provisions on search and seizure were contained in section 271(1)(c) and immunity was granted to the assessee vide clause (2) of explanation 5 appended to section 271(1)(c). Provisions of clause (2) of explanation 5 appended to section 271(1)(c) are similar to immunity granted to assessee under clause (2) of section 271AAA." 12. Similarly, ITAT Cuttack Bench in case of Ashok Kumar Sharma vs. DCIT - 149 TTJ 33 deleted similar penalty by observing as under:- The assessees have disclosed concealed income while giving statements u/s.132 during the course of search and paid the tax thereon and showed the said undisclosed income in the return filed under the head "income f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt was taken care of by the assessee when he filed the returns in pursuance to notice u/s.153A accounting the assets. Therefore, the case laws cited at the Bar clearly indicate that the penalty is not automatic if one of the purported condition is not fulfilled although all the conditions have been agreed to of having fulfilled by the Assessing Officer insofar as the tax and interest has been recovered." 14. ITAT-Chandigarh Bench in case of Munish Kumar Goyal, 45 taxmann.com 563 upheld the deletion of penalty u/s.271AAA after observing as under:- "A plain reading of section 271AAA would show that if the assessee during the course of search admits certain undisclosed income and pays taxes on the same then penalty cannot be levied in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
