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TMI Blog2018 (2) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the order dated 6th October, 2016 of the CIT(A)-5, Delhi relating to Assessment Year 2012-13. 2. Deletion of penalty of ₹ 22,71,150/- levied by the A.O. u/s 271AAA is the only issue raised by the Revenue against the order of the ld. CIT(A) in the grounds of appeal. 3. Facts of the case, in brief, are that the assessee is a company and filed its return of income on 26th March, 2013 declaring total income of ₹ 2,12,72,940/-. A search and seizure action u/s 132 of the I.T. Act was carried out at the business premises of M/s. Aggarwal Associates and Jainco Group of cases and their relatives on 19.10.2011. This group is carrying out the activities of real estate development and related services. The information in respect of the assessee i.e. M/s. Jainco Developers Pvt. Ltd. was passed on to the present Assessing Officer along with satisfaction recorded on 21.02.2014 by the DCIT, Central Circle, Ghaziabad. The material received from Central Circle, Ghaziabad was thoroughly examined and satisfaction in concurrence to the earlier satisfaction recorded by DCIT, Central Circle, Ghaziabad was also recorded. During the course of search and seizure operation, certain d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manner in which the undisclosed income was derived. Further, such undisclosed income was not recorded on or before the date of search, in the books of accounts or other documents maintained in the normal course or otherwise not disclosed to the Chief Commissioner of Income Tax or Commissioner of Income Tax before the date of search. According to the A.O. if the search and seizure operation had not been carried out by the Department, the assessee would not have disclosed such income. According to the Assessing Officer, mala-fide intention of the assessee behind it cannot be denied in this case. 7. In appeal, the ld. CIT(A) deleted the penalty so levied by observing as under :- 3.1 I have carefully perused the written submission and the impugned assessment and penalty orders. In the assessment order the A.O has mentioned at page 2 therein the search had been carried out in the business premises of M/s Aggarwal Associates and Jainco Group and on receipt of the satisfaction note dated 21.02.2014, photocopies of seized documents and appraisal report, he issued notice u/s 153C for A.Y. 2006- 07 to 2011-2012. The assessment for the impugned year 2012-13 was completed u/s 143(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year represented, either wholly or partly, by any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or other documents or transactions found in the course of a search under section 132, which has(A) not been recorded on or before the date of search in the books of account or other documents maintained in the normal course relating to such previous year; or ( B) otherwise not been disclosed to the 22[Principal Chief Commissioner or] Chief Commissioner or 22[Principal Commissioner or] Commissioner before the date of search; or ( ii) any income of the specified previous year represented, either wholly or partly, by any entry in respect of an expense recorded in the books of account or other documents maintained in the normal course relating to the specified previous year which is found to be false and would not have been found to be so had the search not been conducted (b) specified previous year means the previous year- ( i) which has ended before the date of search, but the date of filing the return of income under sub-section (1) of section 139 for such year has not expired before the date of search and the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvey u/s 133A. The Tribunal upheld the finding of the CIT(A) that the penalty u/s 271AAA was legally not sustainable. Since the facts of the present case are identical and even better, as there is no mention of even survey action in the appellant's case, the penalty cannot be legally sustained. 3.2.2 It is found that the courts have held that section 271AAA and 271(l)(c) penalties are mutually exclusive and cannot be substituted to each other. In the case of Marvel Tea Estate 171 TTJ 589 when the A.O levied penalty u/s 271(l)(c) where as search took place at 07.09.2008, that is after 01.06.2007 as provided u/s 271AAA, it was held by the Delhi ITAT that section 271AAA(3) made it mandatory that penalty under section 271AAA is to be invoked in cases where search took place after 01.06.2007 the penalty, if any, had to be levied only under 271AA- not 271(l)(c). Applying the reverse logic as held by the ITAT Delhi in the aforestated case, in a case where no search has taken place at the assessee - premises, no penalty u/s 271AAA can be levied. In such a situation, the A.O. ought to have levied penalty u/s 271(l)(c). Accordingly grounds 1-3 are allowed. 3.5 Grounds 4 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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