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TMI Blog2019 (5) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... AL [ 2018 (9) TMI 1560 - DELHI HIGH COURT] - thus we cancel the penalty levied under Section 271AAA - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ment under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived; (ii) substantiates the manner in which the undisclosed income was derived; and (iii) pays the tax, together with interest, if any, in respect of the undisclosed income." As per the above provision, penalty u/s 271AAA is required to be levied if either of the above condition is violated. The assessee has not fulfilled conditions mentioned at (i) & (ii). The charge for levy of penalty is clearly specified in the assessment order and on that vary charge penalty has been levied. Hence, decision of Delhi High Court in the case of PCIT Vs Bhavi Chand Jindal is not applicable. Reliance is placed upon the following judgements which clearly state that even if charge is not clearly specified, it is a question of fact which cannot be raised in an additional ground: 1. Sundaram Finance Ltd. Vs CIT [2018] 99 taxmann.com 152 (SC) SLP dismissed against High Court ruling that where assessee claimed depreciation on non-existent assets, penalty under section 271(1)(c) was to be levied for filing inaccurate particulars of income 2. Sundaram Finance L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising such a plea at this belated stage. 17. Thus, for the above reasons, Substantial Questions of law Nos. 1 and 2 are answered against the assessee and in favour of the revenue. The additional substantial question of law, which was framed is rejected on the ground that on facts the said question does not arise for consideration as well as for the reasons set out by us in the preceding paragraphs. In the result, Tax Case Appeals are dismissed. No costs." In the above case, it is humbly submitted the assessee has filed additional ground of appeal which deserves not to be admitted in view of the following decisions: 1. Ultratech Cement Ltd Vs Addl.CIT [2017-TIOL-785-HC-MUMIT] (Copy Enclosed) where Hon'ble Mumbai High Court held that an additional ground for claiming deduction u/s 80IA cannot be allowed by the Tribunal, when no claim was made before the original authority and there is nothing on record to indicate as to what prevented the assessee from raising such a claim before lower authorities. 2. Addl. CIT Vs Gurjargravures (P.) Ltd [1978] 111 ITR 1 (SC) (Copy Enclosed) where Hon'ble Supreme Court held that the High Court was not justified in holding that if an ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to clarify that assessee company has not specified and substantiated the manner in which such unaccounted income has been derived by it during the search and seizure operation. Therefore, penalty provisions of Section 271AAA of the I.T. Act are attracted and applicable in the case of assessee company for A.Y. 2011-12. Relevant portion of Section 271AAA of the I.T. Act is reproduced below for ready reference:" 8. Then, he referred to Section 271AAA and thereafter, he recorded the following finding :- "Clearly, from the statement of Sh. Arvind Goel, recorded during the post-search proceedings, it is clear that the assessee company has failed to explain the manner in which the undisclosed income was derived during the year under consideration. Therefore, I have reason to believe that it is a fit case for initiating penalty proceeding u/s 271AAA of the I.T. Act. Accordingly penalty u/s 271AAA of the I.T. Act is being separately initiated." 9. Thus, initially the Assessing Officer recorded the finding "that assessee company has not specified and substantiated the manner in which such unaccounted income has been derived by it". But, subsequently, he recorded the finding "that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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