9911796707
TMI Blog2022 (3) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... supra. So, we find that this commission income which the assessee offered u/s. 132(4) of the Act for AY 2013-14 does not fall in the ken of undisclosed income for the purpose of levy of penalty under section 271AAB. So since the assessee s disclosure does not fall in the definition of undisclosed income in sub clause (i) to clause (c) of section 271AAB of the Act, the penalty u/s. 271AAB of the Act cannot be legally sustained in the facts of this case as rightly held by the Ld.CIT(A) by relying on the decision of this Tribunal in M/s. Rashmi Metaliks. - Decided in favour of assessee. - I.T.A. No. 638/Kol/2020 - - - Dated:- 23-3-2022 - Shri A. T. Varkey, JM And Shri Manish Borad, AM For the Appellant : Shri Akkal dudhwewala, FCA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 8 crores, in this AY [2013-14] the assessee had offered to pay tax on a sum of ₹ 7,45,00,000/-. So, the assessee filed the return duly offering this sum (₹ 7.45 cr.) and had paid tax accordingly. Even though the AO accepted the return of income filed by the assessee pursuant to the notice u/s. 153A of the Act, thereafter, the AO levied penalty u/s. 271AAB of the Act in respect of ₹ 7,45,00,000/- @ 10% which is ₹ 74,50,000/- on the declared income of ₹ 7,45,00,000/. Being aggrieved by the AO s action of levying penalty, the assessee preferred an appeal before the Ld. CIT(A) who was pleased to delete the same by relying on the decision of this Tribunal in M/s. Rashmi Metaliks, supra. Aggrieved by the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .45 cr) was the alternative argument against levy of penalty u/s 271AAB of the Act which was not at all required to be considered for adjudicating the correctness of the impugned action of Ld. CIT(A) deleting the penalty. According to the Ld. AR, the defense set up by the assessee for non-levy of penalty u/s. 271AAB of the Act was that search happened on 18.02.2013 meaning it happened in the AY 2013-14 (which is the relevant assessment year under consideration), which means the assessee had time till 31.03.2013 to enter/reflect the same (commission income of ₹ 7.45cr) in any documents/note books/diaries as contemplated in the definition of un-disclosed income u/s 271AAB of the Act. The Ld. AR reminded us of the fact that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in contrast to person who are required to maintain as per section 44AA and required to get audited their account as per section 44AB of the Act. In such a backdrop we need to appreciate the contention of Ld. AR of the assessee that the income which he offered u/s. 132(4) of the Act during the search on 18.02.2013 to the tune of ₹ 7.45 cr., even otherwise could have been shown by the assessee in his return of income because the assessee had enough time to do so till 31.03.2013 (the relevant assessment year being AY 2013-14 means he has time till 31.03.2013 to enter/offer as regular income ₹ 7.45 cr.) In other words, the assessee s defense is that even if there was no search conducted on him on February 18, 2013, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted. (emphasis given) 8. From a bare reading of the definition of undisclosed income it is noted that in order to be qualified as an undisclosed income , there should be something which is described therein [as per the definition given under sub clause (i) of clause (c) of section 271AAB of the Act] which was found in the course of search which has not been recorded in the books of account or other documents maintained in the normal course of business. In other words, during search if any income of the specified year represented by any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or other documents or transactions was found in the course of a search, which has (A) not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as discovered from any diary/note book found during search. Answer to this is that no such material was discovered by the search team other than the admission made by the assessee of this commission income to the tune of ₹ 7.45 cr. In this regard, we note that it is not the case of AO that the transaction in respect of which the assessee had offered the commission income had been discovered during search. Taking into consideration, the aforesaid facts, and since search took place on 18.02.2013, the assessee had time till 31.03.2013 to enter the same (commission income of ₹ 7.45 cr.) in other document as contemplated under definition of un-disclosed income (supra). Therefore, in the absence of any discovery/seizure of any mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
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