9911796707
TMI Blog2019 (10) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... That the appellant craves the permission to add to or amend to any of the above grounds of appeal or to withdraw any of them. Ground no. 1 is regarding validity of initiation of penalty proceedings under section 271AAB for want of specifying the default as per clauses (a) to (c) of section 271AAB(1) of the IT Act. 2. The assessee is an Individual and derives income from salary, rental income and income from other sources. A search and seizure action under section 132 of the IT Act was carried out by the department on the members of Goyal Group on 11.03.2015 of which assessee is one of the members. During the course of search and seizure, a pocket diary was found and seized as Exhibit 2 Annexure AS containing notings of advances for purchase of land on different dates total amounting to Rs. 24,58,50,000/-. The assessee in his statement recorded under section 132(4) disclosed the said income of Rs. 24,58,50,000/- as additional business income for the year under consideration. The assessee has also declared an additional income of Rs. 5,19,125/- on account of excess jewellery found from the residence of the assessee. The assessee filed his return of income under section 139(1) on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout specifying the undisclosed income which the assessee is required to show cause. Thus in the absence of specific charge against the assessee, he was not in a position to counter the show cause issued by the AO as well as his cogent reply to the show cause notice. Though the AO while passing the impugned order has imposed the penalty as per clause (a) of section 271AAB(1) of the Act, however, no such ground was specified in the show cause notice issued by the AO. Therefore, the penalty order passed by the AO is not sustainable in law when the initiation of proceedings suffers from illegality. In support of his contention, he has relied upon the following decisions :- CIT vs. Manjunatha Cotton & Ginning Factory 359 ITR 565 (Karnataka) Muninaga Reddy vs. ACIT 396 ITR 398 (Karnataka) CIT vs. SSA's Emerald Meadows 73 taxmann.com 248 (SC) Ravi Mathur vs. DCIT ITA No. 969/JP/2017 dated 13.06.2018. Shri Padam Chand Pungliya vs. ACIT ITA No. 112/JP/2018 dated 05.04.2019. Apart from the above decisions, the ld. A/R has also referred to a series of decisions on the point and submitted that this Tribunal has taken a consistent view that the penalty proceedings under section 271 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO has given a clear finding while passing the penalty order then the uncertainty charges at the time of initiation of penalty proceedings has been made good and substituted with a conclusive default at the time of passing the penalty order. Therefore, the Tribunal has upheld the validity of initiation of penalty proceedings. As regards the penalty under section 271AAB is mandatory in nature, the ld. D/R has submitted that as per the Finance Bill 2012 whereby this new section 271AAB has been introduced in the Statute, it was proposed to provide levy of penalty and the assessee shall pay by way of penalty in addition to tax, if any, payable by him equivalent to a sum computed at the rate of 10% to 30% of the undisclosed income. Thus the languages of the notes on clauses of Finance Bill clearly manifest the mandatory nature of levy of penalty. The ld. D/R has then referred to section 271AAB of the Act and submitted that provisions of section 273B are not applicable in case of penalty levied under section 271AAB. Therefore, the penalty is mandatory and not discretionary. The ld. D/R has further contended that the assessee was very well aware about the default and the nature of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the said disclosure itself is not sufficient and conclusive proof to hold that the income disclosed by the assessee is an undisclosed income as per the definition provided under Explanation to section 271AAB of the Act. Since the income was declared by the assessee in the return of income, therefore, the issue did not crop up in the assessment proceedings whether the said income disclosed by the assessee in the statement recorded during the search and seizure action under section 132(4) and offered to tax in the return of income is an undisclosed income in terms of definition under section 271AAB of the Act. Thus the AO is required to consider and decide this issue in the penalty proceedings under section 271AAB of the Act. A mere disclosure by the assessee and surrender of income to tax would not ipso facto lead to the conclusion that the said income is undisclosed income as per the definition provided under section 271AAB of the Act to attract the penalty. Therefore, it is a condition precedent for invoking the provisions of section 271AAB that the said income disclosed by the assessee in his statement under section 132(4) is an undisclosed income in terms of definition pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the surrender and then arrive to the conclusion that the income disclosed by the assessee falls in the definition of undisclosed income as stipulated in the explanation to the said section. Therefore, we do not agree with the contention of the ld. D/R that the levy of penalty under section 271AAB is mandatory simply because the AO has to first issue a show cause notice to the assessee and then has to make a decision for levy of penalty after considering the fact that all the conditions provided under section 271AAB are satisfied. At the outset, we note that an identical issue has been considered by the Coordinate Bench of this Tribunal in the case of Ravi Mathur vs. DCIT (supra) in para 4 to 6 as under :- "4. We have considered the rival submissions as well as relevant material on record. A search was conducted under section 132 of the IT Act on 30th October, 2014 at the premises of the assessee. The assessee in his statement recorded under section 132(4) has disclosed an income of Rs. 10,02,00,000/- in pursuant to the entries of advances given for purchase of land recorded in the pocket diary which was found and seized during the course of search and seizure action. This is ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond Amendment) Bill, 2016 receives the assent of the President50], the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,- (a) a sum computed at the rate of ten per cent of the undisclosed income of the specified previous year, if such assessee- (i) in the course of the search, in a statement 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) on or before the specified date- (A) pays the tax, together with interest, if any, in respect of the undisclosed income; and (B) furnishes the return of income for the specified previous year declaring such undisclosed income therein; (b) a sum computed at the rate of twenty per cent of the undisclosed income of the specified previous year, if such assessee- (i) in the course of the search, in a statement under sub-section (4) of section 132, does not admit the undisclosed income; and (ii) on or before the specified date- (A) declares such income in the return of income furnished for the specified previous year; and (B) pays th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e return of income for the previous year before the date of search; or (ii) in which search was conducted; (c) "undisclosed income" means- (i) any income of the specified previous 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 54[Principal Chief Commissioner or] Chief Commissioner or 54[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.]" The section begins with the stipulation that the AO "may" direct the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed income as defined in Explanation to the said section. Therefore, the provisions of section 271AAB stipulate that the AO may come to the conclusion that the assessee shall pay the penalty. The only mandatory aspect in the provision is the quantum of penalty as specified under clauses (a) to (c) of Sec. 271AAB(1) of the Act as 10% to 30% or more as against the discretion given to the AO as per the provisions of section 271(1)(c) of the Act where the AO has the discretion to levy the penalty from 100% to 300% of the tax sought to be evaded. Thus the AO is duty bound to come to the conclusion that the case of the assessee is fit for levy of penalty under section 271AAB and then only the quantum of penalty being 10% or 20% or 30% has to be determined subject to the explanation of the assessee for the defaults. 5. Before we proceed further, the decisions relied upon by the ld. D/R are to be considered. In the case of Principal CIT vs. Sandeep Chandak & Others (supra) the issue before the Hon'ble High Court was the defect in the notice issued under section 271AAB on account of mentioning wrong provision of the Act being 271(1)(c) of the Act. The Hon'ble High Court after cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 271AAB by the AO is mandatory or discretionary has been considered by the Visakhapatnam Bench of this Tribunal in case of ACIT vs. M/s. Marvel Associates (supra) in para 5 to 7 as under :- 5. We have heard both the parties, perused the materials available on record and gone through the orders of the authorities below. During the appeal hearing, the Ld. A.R. vehemently argued that the A.O. has levied the penalty under the impression that the levy of penalty in the case of admission of income u/s 132(4) is mandatory. The Ld. A.R. further stated that penalty u/s 271AAB of the Act is not mandatory but discretionary. The provisions of section 271AAB of the Act is parimateria with that of section 158BFA of the Act relating to block assessment and accordingly argued that the levy of penalty under section 271AAB is not mandatory but discretionary. When there is reasonable cause, the penalty is not exigible. The Ld. A.R. taken us to the section 271AAB of the Act and also section 158BFA(2) of the Act and argued that the words used in section 271AAB of the Act and the words used in section 158BFA(2) of the Act are identical. Hence, argued that the penalty section 271AAB of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the undisclosed income determined by the Assessing Officer under clause (c) of section 158BC: Provided that no order imposing penalty shall be made in respect of a person if- (i) such person has furnished a return under clause (a) of section 158BC; (ii) the tax payable on the basis of such return has been paid or, if the assets seized consist of money, the assessee offers the money so seized to be adjusted against the tax payable. (iii) Evidence of tax paid is furnished along with the return; and (iv) An appeal is not filed against the assessment of that part of income which is shown in the return: Provided further that the provisions of the preceding proviso shall not apply where the undisclosed income determined by the Assessing Officer is in excess of the income shown in the return and in such cases the penalty shall be imposed on that portion of undisclosed income determined which is in excess of the amount of undisclosed income shown in the return. 6. Careful reading of section 271AAB of the Act, the words used are 'AO may direct' and 'the assessee shall pay by way of penalty'. Similar words are used section 158BFA(2) of the Act. The word may direct indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hence we fortify our view by the above decisions of Tribunal in case of ACIT vs. Marvel Associates." Thus the Tribunal has analyzed all the relevant provisions of the Act as well as various decisions on this point including the decision of Hon'ble Allahabad High Court in the case of Pr. CIT vs. Sandeep Chandak, 405 ITR 648 (Allahabad) relied upon by the ld. D/R and then arrived at the conclusion that the penalty under section 271AAB is not mandatory but the AO has the discretion to take a decision and the same should be based on judicious decision of the AO. Accordingly following the earlier decision of this Tribunal in the case of Ravi Mathur vs. DCIT (supra), we hold that the levy of penalty under section 271AAB is not mandatory but the AO has a discretion after considering all the relevant aspects of the case and then to satisfy himself that the case of the assessee falls in the definition of undisclosed income as provided in the explanation to section 271AAB of the Act. 5.1. The second limb of challenging the validity of initiation of penalty proceedings for not specifying the ground and default in the show cause notice issued under section 274 has been considered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that penalty proceedings are being initiated for furnishing of inaccurate particulars or that for concealment of income makes the penalty order liable for cancellation even when it has been proved beyond reasonable doubt that the assessee had concealed income in the facts and circumstances of the case? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the penalty notice under Section 274 r.w.s. 271(1)(c) is bad in law and invalid despite the amendment of Section 271(1B) with retrospective effect and by virtue of the amendment, the assessing officer has initiated the penalty by properly recording the satisfaction for the same? (3) Whether on the facts and in the circumstances of the case, the Tribunal was justified in deciding the appeals against the Revenue on the basis of notice issued under Section 274 without taking into consideration the assessment order when the assessing officer has specified that the assessee has concealed particulars of income? 3. The Tribunal has allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer under Section 274 read with Section 271(1)(c) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment in the case of SSA's Emerald Meadows (supra), specifically observing that there was no merits in the petition filed by the Revenue. Considering the above cited judgments, we hold that the notice issued u/s.274 r.w.s. 271AAB of the Act, reproduced by us at para 5 above was not valid. Ex-consequenti, the penalty order is set aside. 6. Since we have set aside the penalty order for the impugned assessment year, the appeal filed by the Revenue has become infructuous." In view of the decision of the Chennai Bench (supra), the show cause notice issued by the AO in the case of the assessee is not sustainable." We further note that in the case in hand, the AO in the show cause notice has neither specified the grounds and default on the part of the assessee nor even specified the undisclosed income on which the penalty was proposed to be levied. For ready reference we reproduce the show cause notices issued by the AO under section 274 read with section 271AAB on 30th March, 2016 and 16th August, 2016 as under :- " No. ACIT/CC-1/JPR/2015-16 &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his opportunity of being heard in person or through Authorized Representative, you may reply to show cause in writing on or before the said date which will be considered before any such order is made. Yours faithfully, Sd/- ( Devangi Swarnkar ) Asstt. Commissioner of Income-tax, Central Circle-1, Jaipur. " Thus it is clear that both the show cause notices issued by the AO for initiation of penalty proceedings under section 271AAB are very vague and silent about the default of the assessee and further the amount of undisclosed income on which the penalty was proposed to be levied. Even the Hon'ble Jurisdictional High Court in case of Shevata Construction Co. Pvt. Ltd in DBIT Appeal No. 534/2008 dated 06.12.2016 has concurred with the view taken by Hon'ble Karnataka High Court in case of CIT vs. Manjunatha Cotton & Ginning Factory, 359 ITR 565 (Karnataka) which was subsequently upheld by the Hon'ble Supreme Court by dismissing the SLP filed by the revenue in the case of CIT vs. SSA's Emerald Meadows, 242 taxman 180 (SC). Accordingly, following the decision of the Coordinate Bench as well as Hon'ble Jurisdictional High Court, this issue is decided in favour of the assessee by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not wish to avail yourself of this opportunity of being heard in person or through Authorized Representative, you may show cause in writing on or before the date fixed for hearing on 25.05.2017 at 11.00 AM which will be considered before any such order(s) is/are made. (Kamlesh Kumar Meena) Dy. Commissioner of Income-tax Central Circle-2, Jaipur." "NOTICE UNDER SECTION 274 READ WITH SECTION 271 READ WITH SECTION 271AAB OF THE INCOME -TAX ACT, 1961. Date : 14-12-2016. To, Name Shri Mukund Sharan Goyal Address 24, Goyal House, Ajmer Road, Jaipur. PAN ABIPG 1414D Whereas in the course of assessment proceedings for the AY 2015-16 penalty proceeding were initiated u/s 274 and 275 read with the section u/s 271AAB of the IT Act and a penalty notice was issued accordingly. You are hereby allowed further opportunity of being heard and to show cause why an order imposing penalty on you should not be made u/s 271AAB of the Income-tax Act 1961. If you do not wish to avail yourself of this opportunity of being heard in person or through Authorized Representative, you may show cause in writing on or before the date fixed for hearing on 11.01.2017 at 11.00 AM which will be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny actual transaction but only for sake of obtaining the surrender from the assessee, the search party has forced upon these documents on the assessee. The ld. A/R has referred to the CBDT Circular No. 286 of 2003 dated 10th March, 2003 and submitted that the CBDT expressed its concern about the practice of confession of additional income during the course of search and seizure proceedings which do not serve any useful purpose in the absence of any evidence of income which leads to information on what has not been disclosed or is not likely to be disclosed. Hence the ld. A/R has submitted that the Board has time and again advised the taxing authorities to avoid obtaining an admission/confession of undisclosed income under coercive/undue influence. He has then referred to the Circular dated 18th December, 2018 and submitted that the CBDT has repeated its earlier instructions. Thus the ld. A/R has submitted that in the absence of any undisclosed income indicated or discovered on the basis of seized material, the disclosure made in the statement under section 132(4) is not sufficient to levy the penalty under section 271AAB of the Act. In support of his contention, he has relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are recorded. Nothing adverse was found which suggest that the assessee's intention was not to disclose the income recorded in the seized documents. The settled position of law is that the power to levy penalty inherently has power not to levy penalty. Thus, the ld. CIT (A) confirmed the penalty under a wrong notion. The provisions of section 271AAB itself speak that these are not mandatory. The reference is made to section 271AAB and submitted that the term "The AO may" used in the section does not make the levy of penalty as mandatory. The section starts that the Assessing Officer "MAY" direct. Thus it is not 'SHALL' which would have made the levy of penalty mandatory. Thus the ld. CIT (A) was wrong in observing that levy of penalty u/s 271AAB was mandatory. Secondly the provisions of section 271AAB(3) lay down that penalty shall be levied under the section with reference to section 274. In other words the provisions of section shall apply in levying penalty under this section. Section 274 speaks that "no order imposing penalty under this chapter shall be made unless the assessee has been heard or has been given a reasonable opportunity of being heard." Thus hearing has to be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the status of family. The said items were received from both sides of relatives and friends at the time of marriage and thereafter on various other festivals and auspicious occasions. It is customary in India society that every parent, friends and relatives to present some gifts in gold etc. to her daughter and son-in-law at the time of marriage. The family of assessee is reputed and means. Thus looking to the status of the family, customs of the society and other facts and circumstances, the total silver found is reasonable and source of acquisition was explained. However, the assessee to buy piece and avoid litigation with department offered the said valuation of silver as his additional business income of the current year. However, the department has not made any efforts to ascertain the year of acquisition of the gold jewellery and then to apply the rates as prevailing in the year of acquisition and some of the jewellery even not acquired by the assessee or the family members but is inherited, then the manner in which the disclosure is obtained on account of the jewellery would not represent the undisclosed income as defined in the explanation to section 271AAB of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply to question no. 31 and 32 in his statement recorded on oath, it has been stated by the assessee that out of cash of Rs. 7,28,211/- found during the course of search, a sum of Rs. 7,00,000/- was received by him on 09.03.2015 and the same was written on page no. 6 of the pocket diary seized from his residence. It is pertinent to mention here in question no. 30, it has been stated by the assessee that the transactions in the said pocket was written by him and he admitted the ownership of that diary also. Further, as per provisions of section 132(4A), the presumption is there that "the contents of such books of accounts or other document are true". It may be humbly submitted that the genuineness of these transactions have never been raised by the assessee at point of time. In fact, his statement recorded on oath u/s 131 of the Act and in the affidavit, the assessee has affirmed his surrender of undisclosed income made u/s 132(4) of the Act and has declared the same in its return of income as undisclosed business income. The ld. D/R submitted that the word 'transactions' in the definition of undisclosed income relates to transactions found during the course of search and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord. During the course of search and seizure action under section 132 of the IT Act, a pocket diary was found and seized containing the entries of advances for land. The heading of these entries is Land Advance in the name of certain persons. However, neither any particulars of those persons are mentioned nor the particulars of the land for which the alleged advance is given is mentioned in the seized material. The entries are only certain names, dates and amount. Even from the names mentioned in the diary, the identity of these persons cannot be ascertained. Similarly the details of the land are also not given in the seized material. Thus in the absence of corresponding asset being the land acquired by the assessee or any document executed between the parties for acquiring of the land, these entries itself do not represent the undisclosed income. As per the definition provided in the Explanation to section 271AAB, if the assessee has acquired an asset which is detected during the course of search and not found recorded in the books of account then the said asset would be considered as undisclosed income but in the absence of the asset it is the mere noting in the diary which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereas the said notings are purported to be on different dates of month of April, May and June. Some of the entries are even unrealistic like Rs. 15 lacs towards purchase of paint. It is pertinent to note that how paint is purchased prior to the completion of construction and as per the entries in these papers there is an entry of some marble fixing of Rs. 5 lacs. From these entries in the alleged seized material, it is manifest that most of them are unrealistic as entry of Rs. 70 lacs is shown towards furniture which is highly impossible. Another entry of Rs. 45 lacs is shown towards steel. Thus from the notings of these papers it is clear that these are not entries representing the real and actual transactions. Further, neither during the course of search and seizure proceedings nor even in the course of statement recorded under section 132(4) any efforts were made by the search party to find out the actual existence of these assets towards which the alleged entries are recorded in the seized material/papers. Though the admission on the part of the assessee is a relevant evidence, however, when the entries/notings in the loose papers are apparently not representing the real t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinate Bench of this Tribunal in the case of Rajendra Kumar Gupta vs. DCIT (supra) has considered the issue of out flow of funds from the assessee can be an undisclosed income for the purpose of section 271AAB of the Act in para 21 as under :- "21. During the course of search, a note book (diary) has been found referred to as Ann. AS wherein there are certain notings relating to cash advances given to various persons totaling to Rs. 82,80,000. Referring to the statement of the assessee in respect of these notings recorded u/s 132(4), ld CIT(A) has given a finding that the assessee has given a generalized statement without specifying the complete particulars of persons to whom loans were given and also failed to substantiate the same. The said findings have not been disputed by the Revenue and therefore, merely based on surrender and generalized statement of the assessee, in absence of anything specific to corroborate such entries, can it be said that such entries/notings represent undisclosed income of the assessee. As per the definition of undisclosed income u/s 271AAB, the said cash advances cannot be stated to be income which is represented by any money, bullion, jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndisclosed income. Where a specific definition of undisclosed income has been provided in Section 271AAB, being a penal provision, the same must be strictly construed and in light of satisfaction of conditions specified therein and it is not expected to examine other provisions where the same has been defined or deemed for the purposes of bringing the amount to tax. In light of the same, the undisclosed investment by way of advances can be subject matter of addition in the quantum proceedings, as the same has been surrendered during the course of search in the statement recorded u/s 132(4) and offered in the return of income, however the same cannot be said to qualify as an undisclosed income in the context of section 271AAB read with the explanation thereto and penalty so levied thereon deserved to be set-aside." Accordingly, in view of the facts and circumstances of the case as well as the decision of the Coordinate Bench of this Tribunal in the case of Rajendra Kumar Gupta vs. DCIT (supra), we hold that the entries in the seized documents representing the expenditure on account of construction of the house and purchase of other assets as well as advances in the absence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the family of the assessee consisting of assessee, his wife, his son, daughter-in-law, married daughter, 2 grandchildren, granddaughter-in-law and two great grandsons. Considering the married women in the family and one married girl as well as the male members, we find that the benefit of the Circular/Instruction No. 1916 dated 11.05.1994 shall be given in respect of all the family members. The ld. A/R of the assessee has relied upon the decision of Hon'ble Jurisdictional High Court in case of CIT vs. Satya Narain Patni, 366 ITR 325 (Raj.) wherein the Hon'ble High Court has held in para 12 & 13 as under :- "12. It is true that the circular of the CBDT, referred to supra dt. 11/05/1994 only refers to the jewellery to the extent of 500 gms per married lady, 250 gms per unmarried lady and 100 gms per male member of the family, need not be seized and it does not speak about the questioning of the said jewellery from the person who has been found with possession of the said jewellery. However, the Board, looking to the Indian customs and traditions, has fairly expressed that jewellery to the said extent will not be seized and once the Board is also of the express opinion that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this jewellery. Therefore, even if the assessee has disclosed the undisclosed income in the statement recorded under section 132(4) of the Act but for the purpose of levy of penalty under section 271AAB, all these facts are required to be taken into account. Once all these facts are considered, then the said jewellery found at the time of search and seizure action cannot be held as undisclosed income." Therefore, irrespective of the income disclosed by the assessee in the statement recorded under section 132(4) of the Act, the AO is required to consider the benefit of CBDT Instruction No. 1916 dated 11.05.1994 at the time of levying the penalty under section 271AAB. Such benefit of CBDT Instruction has to be allowed in respect of all the family members. Once the benefit is given as per the CBDT Instruction in respect of the quantity of the gold being 500 grams per married lady, 250 grams per unmarried lady and 100 grams per male member of the family, then the excess jewellery treated for undisclosed income will not survive. Accordingly, the penalty levied by the AO in respect of the excess jewellery without giving the benefit of CBDT Instruction No. 1916 is not sustainable. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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