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TMI Blog2019 (8) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties that the issue involved in all the appeals was identical, relating to penalty levied u/s 271AAB1)(c) of the Act and emanated from identical set of facts. These appeals were therefore heard together and are being disposed off by this consolidated order. For the sake of convenience, we shall be dealing with the appeal of the assessee in I TA No.1587/Chd/218 and the decision rendered therein will apply mutatis mutandis to other appeals also. ITA No.1587/Chd/2018: (A.Y 2014-15) 3. Brief facts relating to the case are that during the course of assessment proceedings the Assessing Officer(A.O) noticed that at the time of search proceedings the assessee had admitted undisclosed income amounting to Rs. 10,00,000/- u/s 132(4) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect as to how the case of the appellant is covered under clause (a) or under clause (b) of section 271AAB(l) of the IT act. Therefore, I hold that case of the assessee is covered under the provisions of section 271AAB (l)(c) and the penalty @ minimum 30% or maximum 90% is attracted. Therefore, under the facts and circumstances of the case, the penalty of Rs. 3,00,000 imposed by the AO u/s 271AAB (l)(c) of the IT Act in this case is found sustainable as per law and hence confirmed." 5. Before us, the Ld.Counsel for the assessee contended that no penalty was leviable in the present case at all since there was no undisclosed income of the assessee, as defined in section 271AAB of the Act, for the purpose of levy of penalty. The Ld.Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of other group concerns of the assessee which were also covered in the search action, penalty had been levied/confirmed @ 10% of the undisclosed income only, in similar facts and circumstances. It was therefore pleaded that considering the similarity of facts and circumstances of the group concerns with the assessee the penalty levied in the present case @ 30% was unjustified and ought to be restricted to 10% only. 7. The Ld. DR countered by stating that since the assessee had suo moto made the surrender, the same tantamounted to undisclosed income of the assessee and penalty, therefore, had been rightly levied. The Ld. DR further rebutted the contention of the Ld.Counsel for the assessee that the penalty be levied @ 10% as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T holding that penalty u/s 271AAB is not automatic and there has to be undisclosed income as defined under the section for the levy of penalty. 10. We therefore consider it fit to restore the issue back to the Ld.CIT(A) to adjudicate the matter afresh in accordance with law ,after considering all the submissions of the assessee. The LD.CIT(A) is directed to pass a speaking order, after considering all necessary facts relevant to the issue, i.e. the surrender letter of the assessee ,the statement recorded during search u/s 132(4) making the surrender and any other relevant material/facts, for deciding the issue. Needless to add the assessee be granted proper opportunity of hearing. The appeal of the assessee is therefore allowed for statis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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