9911796707
TMI Blog2019 (9) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... ,91,800/- on 17.10.2008. The assessee has not admitted any undisclosed income u/s. 132(4). Post search and seizure enquiry, the Revenue got confirmation from the sellers of the plots that they received on money payments from the assessee, when the such facts were brought to the assessee, she had admitted the on-money receipts of Rs. 2,46,30,500/-. Subsequently, on issue of notice u/s. 153A, the assessee filed a return admitting the total income of Rs. 2,02,62,800/- on 29.10.2010, in which she has claimed Rs. 6,50,000/-towards agricultural income which was not declared in the original return. After examining the facts and circumstances of the assessee's case, the Assessing Officer levied penalty on the concealed income of Rs. 2,52,88,500/- [2,86,80,300-33,91,800] u/s. 271(1)(c) at Rs. 78,30,787/-, which is 100% of tax sought to be evaded, by an order in F.No: CEN/11-(3)/PTY/271(1)(c)/11-12 dated 27.06.2011. On an appeal, the CIT (A) in his order in ITA No. 20/11- 12 dated 06.03.2013 directed the AO to levy penalty @ 10% u/s.271AAA on the undisclosed income of the assessee. Aggrieved by that order, the assessee as well as the Revenue filed appeals before the ITAT. The ITAT in its ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in ITA No. 986/Mds/2013 that the penalty cannot be levied u/s. 271AAA, it is automatic that the levy of penalty made u/s. 271(1)(c) is confirmed. The assessee has not challenged the levy of penalty u/s. 271(1)(c) nor there is any finding against the levy of penalty 271(1)(c) in that order. On the other hand, the ld.DR invited our attention to the relevant portion of the order and submitted that there is a clear finding of the Tribunal in sustaining the penalty levied u/s. 271(1)(c) and hence the ld. DR pleaded that the order of the ld.CIT(A) may be confirmed. 6. We heard the rival contentions. Since this Tribunal order in ITA No.986/Mds/2013, supra, is subject matter, in order to make things clear, we extract the relevant portion as under : "2. The assessee has raised following grounds of appeal: 2.1 The CIT(A) went wrong in directing the Assessing Officer to levy penalty u/s. 271 AAA of the Income Tax Act on the undisclosed income. 2.2 The CIT(A) having found that the penalty levied u/s. 271(1)(c) is untenable, ought to have quashed the entire order impugned before him. 2.3 The CIT(A) having found that the penalty levied by the Assessing Officer u/s. 271(1)(c) is un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lture income. Finally, the Ld. AO is of the opinion that the assessee has not disclosed the said information in Return of Income u/s. 139(1) of the Act but disclosed in Return of income filed in compliance to the notice u/s. 153A of the Act and the assessee could not produce any books of accounts or substantiate the claim and the income was offered under income from other sources and levied the penalty of Rs. 48,35,016/- and passed order dated 27.06.2011. 4. Aggrieved by the order of penalty the assessee has filed an appeal with the CIT(A). In the appellant proceedings, the Ld. AR of the assessee argued that the Ld. AO erred in levying penalty as the assessee has offered Rs. 1,52,19,000/- in Return of income filed in compliance to notice u/s. 153A of the Act. The income includes on money payments made to the sellers and agricultural income which is not liable to tax and was disclosed voluntarily. The assessee in assessment proceedings accepted the income of Rs. 1,52,19,000/- to buy peace with the Income Tax Department and therefore there is no concealment of income and penalty cannot be levied. Further, the agricultural income is not taxable and exempted from Income tax and penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o tax, if any payable by him as computed at the rate of 10% of undisclosed income of the specified previous year and dealt exhaustively on the provisions at page 5 and 6 of the order and conclude that the provisions of section 271AAA of the Act are applicable to the assessee. The Ld. CIT(A) found that the undisclosed income offered by the assessee and addition in the assessment proceedings are liable for penalty u/s. 271AAA of the Act and directed the Assessing Officer to levy penalty @ 10% of such undisclosed income of the assessee and partly allowed the appeal. Aggrieved the assessee has filed an appeal with the Tribunal. 5. Before us, the Ld. AR of the assessee argued that the CIT(A) erred in giving directions to the Assessing Officer for levy of penalty u/s. 271AAA of the Act on the undisclosed income. The Ld. CIT(A) having found that the penalty levied u/s. 271(1)(c) is not tenable should have vacated the entire penalty order and further erred in not providing specific opportunity to the appellant before giving directions to the Assessing Officer for levy of penalty and the provisions of section 271AAA of the Act are not applicable to the assessee and prayed for allowing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any other provisions of this Act, direct that in a case where search has been initiated u/s. 132 on or after the 1st day of June, 2007 [but before the 1st day of July, 2012], the assessee shall pay by way of penalty, in addition to tax, if any, payable by him, a sum computed at the rate of ten percent of the undisclosed income of the specified previous year". (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 assessee has not furnished the return of income for the previous year before the said date; or (ii) in which search was conducted." 7. We perused the provisions and found that the directions of the CIT(A) to levy of penalty u/s. 271AAA cannot be sustained. On application of said provisions to the present case, the search u/s. 132 of the Act was conducted on 26.08.2008 and the due date of filing the Return of income of assessee is 31.07.2008 and the assessee has filed the Return of income on 17.10.2008, which is after the due date of Return of Income u/s. 139(1) of the Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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