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TMI Blog2021 (12) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... her in the fact and circumstances the ld. CIT(A) erred in allowing the appeal of the assessee without considering the facts that the father of the assessee declared in his statement on oath that the amount was provided as a unaccounted cash loan given by the assessee who considered the same as undisclosed in her hand and filed ITR for the relevant AY by mentioning the same income accordingly. 3. Whether in the facts and circumstances the Ld. CIT(A) erred in relying the case law of I.T.A.T. bench in the case of DCIT vs. Volga Dresses ITANo.201 & 202/PAN/2016 whereas that does not pertain to jurisdictional by the dept. and further appeal was filed by the revenue. 4. The appellant craves leave to add to or deduct from or otherwise amend the above grounds of appeal. The Assessee has raised following grounds of appeal in CONo.12/Ind/2020: 1. The Ld. AO has grossly erred under the facts and circumstances of the cases in levying of Rs. 65,00,000/- under section 271AAB without proving concealment. 2. 2. The Ld. AO has erred in his order on fact by setting that the surrendered income was declared in return filed on 21.04.2017 after issue of notice u/s 153C of the Income Tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 274 of the Act and after considering the submissions made by the assessee penalty of Rs. 65,00,000/- was levied. 4. Aggrieved assessee preferred an appeal before the ld. CIT(A) and succeeded. 5. Now revenue is in appeal before this Tribunal. Ld. Departmental Representative (DR) vehemently argued supporting the order of Ld. AO and also submitted that the surrender of Rs. 2 crore was made by the assessee's father who was real owner of the undisclosed income which he routed as gifts in the hands of his daughter. Supporting the order of Ld. AO he requested confirm the penalty levied u/s 271AAB of the Act. 6. Per contra Ld. counsel for the assessee supported the finding of Ld. CIT(A) and also submitted that the notice of search was not issued in the name of assessee. Notice u/s 274 of the Act issued to assessee is defective as it does not specify specific charge against the assessee. He also referred to the written submissions running from pages 1 to 8 and paper book pages running from 1 to 67. 7. We have heard rival contentions and perused the records placed before us. Revenue's sole grievance is that the Ld. CIT(A) erred in deleting the penalty levied u/s 271AAB of the Act at Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch was initiated against the assessee therefore section is not applicable , Assessment was done on assessee u/s 143(3) r.w.s, 153C which itself is evidence of search not being conducted on. assessee. Therefore, section 271AAB is not applicable. 02- Statement u/s132(4) where income is surrendered was given by father of the assessee and not the assessee herself, therefore, sub-clause (i) of sub section (1l( a) of section 271AAB also is not complied in present case .. ' 03~ Section 271AAB is applicable only on the assessments conducted u/s 153A not on cases assessed ujs153C. 4.3 It would be pertinent to reproduce the language of section 271AAB of the IT Act, 1961:- "271AAB. (1) The Assessing Officer may, notwithstanding anything contained in any other provisions of this Act, direct that, in a' case where search has been initiated under section 132 on or after the 1 st day of July, 2012 [but before the date on which the Taxation Laws (Second Amendment) Bill, 2016 receives the assent of the President], 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not covered under the provisions of clause (a).) (2) No penalty under the provisions of 45[section 270A or} clause (c) of subsection (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1) 45a!or sub-section (1 A}}. (3) The provision of sections 274 and 275 shall, as far as may be, apply in (c) relation to the penalty referred to in this section .. Explanation.-For the purposes of this section,- (a) "specified date" means the due date of furnishing of return of income under sub-section (1) of section ]39 or the date on which the period specified in the notice issued under section 153A for furnishing of return of income expires, as the case may be; (b) "specified previous year" means the previous year- (i) which has ended before the date of search, but the date of furnishing the return of income under sub-section (1) of section 139Jor 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. specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order. The. Appellant had also paid tax and return was also filed before the . issuance of notice u j s 153C of the Act. 4.7 Hence after taking into account all the factual matrix and circumstances of the case, the following points are emerged out:- 1. No search was conducted in the appellant's case, thus the said section does not apply. 2. No books of account were maintained by the appellant as she was not engaged in any business activity. She had received the said amount as gift. 3. The assessment was completed u/s 143(3) r.w.s. 153C not in the section 153A, therefore, the said section does not attract in the appellant's case. 4. The appellant had deposited entire tax and had filed the return of income before the due date u/s 139 of the Act, which had been accepted by the Assessing Officer in the first para of the order. The appellant has also paid tax and return was also filed before the issuance of notices u/s 153C of the Act. 4.8. Thus, in view of the above facts, the penalty so imposed by the Assessing Officer is hereby deleted and accordingly, this ground of appeal is allowed. 9. From perusal of the above finding of Ld. CIT(A) as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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