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TMI Blog2020 (4) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... ng bearing on the income of the assessee in their respective orders. The ld. DR has not advanced any arguments against the contentions raised by the ld. AR for the assessee, thus we are not convinced with the penalty levied by the authorities below. - Decided in favour of assessee. - ITA. Nos: 1957 to 1960/AHD/2017 - - - Dated:- 9-1-2020 - Shri Mahavir Prasad, Judicial Member And Shri Amarjit Singh, Accountant Member For the Appellant : Submission For the Respondent : Shri Vinod Tanwani, Sr. D.R. ORDER PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. These four appeals filed by the Assessee are directed against the order of the Ld. CIT(A). Since in all these four appeals assessee is common only amount and assessment years are different but for the sake of brevity, we would like to dispose of all four appeals together. The assessee has taken following grounds of appeal: 1.0 ORDER PASSED UNDER SECTION 271 (1) (C) IS BAD IN LAW. 1.01 On the facts and circumstances of appellant's case and in law, the Id. CIT (Appeal) has erred to appreciate the initiation of penalty proceedings is bad in law as it was silent on whether it is concealment of income or fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmed the action of the ld. A.O. 4. Now assessee has come before us. 5. In this case, a search /survey u/s 132/133A was conducted in the Dhanjimama Group of cases on 03.07.2012. In the search/survey proceedings, based on documents found, the partner of the assessee firm on behalf of the firm has disclosed an amount of ₹ 13,87,086/- for the year under consideration. 6. The revenue contention is that the disclosure of ₹ 13,87,076/-was made due to search and survey at the premises of Dhanjimama Group were assessee is partner of the firm. 7. On the other hand, ld. A.R. contention is that no search and survey has taken place at the premises of the assessee and assessee has voluntarily disclosed the income of the department. Thus, in such case, penalty cannot be imposed. 8. And further stated that in a recent decision of Supreme Court in the case of Rajkumar Gulab Badgujar 111 Taxmann.com 257 wherein it is held that wherein the returned income has been accepted u/s 153C and therefore, it is held that in such case, penalty cannot be imposed. 9. Ld. A.R. also cited an order of Co-ordinate Bench in the matter of Parag V. Chugh vs. DCIT in ITA Nos. 581 to 586 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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.] From the above provision, it is clear that the penalty shall be imposed under section 271AAB of the Act where there is undisclosed income within the meaning of the explanation to 271AAB of the Act. However, we note that there was no documentary evidence found by the search team suggesting that there was any undisclosed income of the assessee. As such the income disclosed by the assessee was voluntarily without having found any document in the course of search. We also note that there no reference made by the authorities below to the documents of incriminating nature having bearing on the income of the assessee in their respective orders. The ld. DR has not advanced any arguments against the contentions raised by the ld. AR for the assessee. In holding so we draw support and guidance from the order of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oks of accounts or to the sales conducted by the assessee to the sale deeds. Therefore, we are unable to accept the contention of the revenue that the loose sheet found during the course of search indicates any undisclosed income or asset or inflation of expenditure. The Hon'ble ITAT Delhi Bench in the case of Ajay Sharma v. Dy.CIT [2013] 30 taxmann.com 109 held that with respect to the addition on account of alleged receivables as per seized paper, there is no direct material which leads and establishes that any income received by the assessee has not been declared by the assessee. An addition has been made on the basis of loose document, which did not closely prove any concealment or furnishing of inaccurate particulars by the assessee. Hence penalty u/s 158BFA (2) of the Act is not leviable. The facts of the assessee's case shows that there was no undisclosed income found during the course of search and no incriminating material was found, hence we hold that there is no case for imposing penalty u/s 271AAB of the Act, accordingly, we set aside the order of the lower authorities and cancel the penalty u/s 271AAB of the Act. In view of the above, we are not convinced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .01 On the facts and circumstances of appellant's case and in law, the Id. CIT (Appeal) has erred to appreciate the initiation of penalty proceedings is bad in law as it was silent on whether it is concealment of income or furnishing of inaccurate particulars of income as both cannot exist at the same time. 1.02 . Your appellant therefore prays Your Honour to hold so now and treat the penalty proceedings as bad in law. 2.00 IMPOSITION OF PENLATY TO THE TUNE OF ₹ 4, 01,836 /-UNDER SECTION 271 AAB OF THE INCOME TAX ACT, 1961. 2.01 On the facts and circumstances of appellant's case and in law, the Id. CIT (Appeals) has erred in confirming the levy of penalty to the tune of ₹ 4,01,836 /- under section 271 AAB of the Act by the Id. AO on disclosure of additional income in the return of income filed under section 153Aof the Income Tax Act, 1961 . While doing so, the Id. CIT (Appeals) failed to appreciate that the additional income did not have the character of undisclosed income admitted during the course of search proceedings. Additional income declared in the returned income is a voluntary act and therefore appellant cannot be held guilty for lev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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