9911796707
TMI Blog2020 (11) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1. Findings of the AO: As stated earlier the appellant in response to notice u/ s.153A filed return of loss at Rs. 1,43,05,649/-. Subsequently the appellant revised its return of income from loss of Rs. 1 ,43,05,649/ - to income of Rs. 29,62,330/ -. The AO passed order ujs.153A/143(3) on 27.12.2016 determining total income at Rs. 29,62,330/-. However, in the assessment order the AO noted that that the appellant has concealed the income to the tune of Rs. 1,72,67,982/- on account loss being converted to positive income. Accordingly, the AO initiated penalty proceedings for concealment of income u/s 271(1)(c) on 29.06.2017 levying a penalty of Rs. 1,12,05,200 at the rate of 200% of the tax sought to be evaded. 3.2 Appellant's contention: During the course of appellate proceeding, the appellant has filed submission as under: a) Facts of the Case * A search was conducted in the premises of appellant on 03.09.2014. * The search team has not found any incriminating material! documents against your appellant for the year under consideration . * On 30.11.2014 your appellant has submitted tax audit report along with audited financial statement showing net profit of Rs. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 comes under the purview of definition of "Specified previous year" as given in explanation - (b) of section 271AAB which is applicable to the company and section 271(1)(c) is not applicable. But ignoring the above section the Ld. A. O. has imposed penalty under section 271 ( l)(C ) without any legal sanction hence the same is void and illegal and deserve to be quashed off" 3.3 Appellate finding and decision: I have gone through the penalty order, assessment order and submission of the appellant. The undisputed fact is that a search & seizure action u/s 132(1) was carried out at the business and residential premises of Jagdmba group of cases on 03.09.2014. The appellant is one of the members of the said group. The appellant submitted that in a case where a search has been initiated under section 132(1) on or after the 1st day of July, 2012 the penalty if any that need to be levied is u/s.271AAB and not u/s.271(1)(c) as its case falls under the specified previous year. Accordingly, the appellant urged to quash the order passed ujs.271(1)(c). In this regard, it would be of particular relevance to look into the provisions of section 271AAB of the Act. '271AAB. Penalty w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of search, but the date of furnishing 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 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 Chief 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 fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of section 271AAB, the notice issued under section 271 (1)(e) cannot be said to be valid for initiation of proceedings under section 271AAB. Further, there is no material difference with regard to levy of penalty u/s.271AAA and u/s.271AAB except the date of initiation of search. In following decisions it was held that where the assessee is covered by sec.271AAA, initiation and levy of penalty vi] s.271 (l)(c) was held to be bad in law. (i) The The Hon'ble ITAT Delhi Bench in the case of Aswani Kumar Arora Vs. ACIT reported in (2016) 50 ITR (Trib) 37 dated 19/05/2016. The relevant portion is reproduced hereunder: "13. When aforesaid undisputed facts are examined in the light of the amended provisions contained under subsection (2) and (3) of section 271 AAA, the penalty in this case, if at all leviable, it should have been levied under section 271AAA(1) and not u/s 271(1)(c) as has categorically been provided in sub-section (3) of section 271AAA. Intention of the legislative in incorporating the provisions contained u/s 271AA effective during the period 1st June, 2007 to 1st July, 2012 is to provide general amnesty in search and seizure cases, and the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judicial pronouncements, I hold that the appellant for the assessment year under appeal, cannot be visited with penalty under section 271(1)(c) of the Act, as the appellant's case falls under section 271AAB. I further hold that the mistake being so grave and fatal the same cannot be cured by resorting to section 292B of the Act. Accordingly the AO is directed to delete penalty levied under section 271(1)(c) of Rs. 1,12,05,200/-." It is thus clear from a perusal of the foregoing extracted lower appellate discussion that the CIT(A) has reversed Assessing Officer's action for the sole reason that since the instant lis involves a search case covered under a specific provision u/s 271AAB of the Act, the impugned proceedings u/s. 271(1)(c) ought not to have been initiated. This clinching aspect has gone unrebutted from the Revenue side that the Assessing Officer had indeed involved sec. 271(1)(c) proceedings only. The tribunal's co-ordinate bench decision(s) (supra) have already made it clear that the specific provision dealing with such penalty i.e. sec. 271AAB has overriding effect over the general one that the sec. 271(1)(c) in other words. We adopt the same reasoning mutati ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
