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TMI Blog2013 (4) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006-07 and F.Y. 2007-08. it is also noticed from the examination of Page 23 of the seized documents of Annexure A-3/Party BO-III which also contains the details of some expenses incurred by Mr. Rajiv Gupta during F.Y. 2006-07. During the course of assessment proceedings, M/s BPTP Ltd. was issued a detailed questionnaire on 21.08.2009 and was asked to explain the transactions recorded on the aforesaid Pages 30-31 of Annexure A-1; Page 23 of Annexure A-3 and Pages 1-9 of Annexure A-25, and also to produce evidence as to where the transactions contained in the above documents are accounted for in its books of account. In fact, for the year under consideration, Pages 30-31 of Annexure A-1/Party BO-III and Pages 7 to 9 of Annexure A-25/Party BO-III revealed that certain payments were made to various persons to facilitate the colonization of land at Faridabad and the total of these payments was arrived at ₹ 56,57,400/- in the following manner:- Sr. No. Description Amount 1. Pages 30-31 of Annexure A-1/Party BO-III and Pages 7 and 9 of Annexure A-25/Party BO-III. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dients necessary for invocation of the provisions of Section 271AAA were present in the case; that apparently, the Assessing Officer had overlooked the amendment and had conducted the proceedings u/s 271 (1)(c); that the assessee did not, at any stage during the penalty proceedings, raised any objection against the wrong quoting of the Section; that even while filing the appeal [before the Ld. CIT (A)], this issue had not been raised and even the statement of facts filed along with the grounds of appeal made no mention qua this issue; that it appeared that the new provision had escaped the attention of the Assessing Officer as well as the assessee; that Section 271(1)(c) of the Act and Section 271AAA thereof essentially deal with penalty leviable on income not declared or disclosed by the assessee; that proper satisfaction regarding concealment of income had been recorded by the Assessing Officer in the assessment order; that proper opportunity for defending itself in the concealment penalty proceedings had been provided to the assessee; that since the assessee had not raised any objection regarding satisfaction or opportunity of hearing, these facts stood admitted by the assessee; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moreover, Section 271AAA starts with a non obstante clause and by virtue of Sub-section (3) it specifically excludes Section 271(1)(c) of the Act; that the Ld. CIT (A) has further erred in observing that both Sections 271(1)(c) and 271AAA deals with the same default; that the decision of the Madras Bench of the Tribunal in Samy Auto Parts vs. ITO , 44 ITD (Mad) 44 has wrongly been distinguished by the Ld. CIT (A), harbouring the aforesaid incorrect notion of the two provisions dealing with the same default; that the Ld. CIT (A) has also wrongly concluded that the objection raised by the assessee was merely a technical objection, whereas such objection questioned the very jurisdiction of the Assessing Officer qua the levy of the penalty; that the Ld. CIT (A) erred in observing that the assessee s case was squarely covered by the provisions of Section 271AAA of the Act, without dealing with the assessee s objection that the penalty had been wrongly imposed, having actually been levied u/s 271 (1)(c) of the Act; and that therefore, the order under appeal, being not sustainable in the eye of law, be cancelled on allowing the appeal of the assessee and the wrong imposition of the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Department that the applicable provision to the case of the assessee for the year under consideration, is Section 271AAA and not Section 271 (1)(c). Section 271AAA (1) provides for the levy of penalty in cases where search has been initiated u/s 132 of the Act, on or after 01.06.2007. Section 271AAA (3), however, specifically excludes imposition of penalty u/s 271(1)(c) of the Act on the assessee in respect of undisclosed income referred to in Section 271AAA (1). 11. That being so, to say that Sections 271 (1)(c) and 271AAA are in pari materia with each other is, on the face of it, incorrect. Too, the Ld. CIT (A) has himself been of the view that the case is covered under the provisions of Section 271AAA, which has been admitted by the assessee and which, as discussed, is also the clear obtaining situation. The issue is as to whether where the penalty has been imposed under a Section, which is not applicable, can it be transposed to be taken to be a levy of penalty under the correct provision of law, which does not stand invoked. At this stage, it needs to be recorded that the action of the assessee in not raising any objection in this regard is not detrimental to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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