9911796707
TMI Blog2023 (8) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of the assessee represented by entries in books of accounts or other documents found during the search, unexplained jewellery and unexplained marriage expenses were included in the definition of undisclosed income as per the Explanation to the section. Fulfillment of the other condition, that the impugned assessment year qualified as specified previous year since as per the definition of specified previous year it included the year in which search was concluded, which he found was the fact in the present case. DR was unable to controvert the above findings of the Ld.CIT(A) - No infirmity in the order of the ld.CIT(A) holding that the correct section for levy of penalty in the present case was under section 271AAA and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Saji R. Dhananiand the assessee. The search and seizure proceedings were carried out at two residential premises belonging to one of the brothers Shri Raoof R. Dhanani (assessee before). Subsequently, assessment under section 143(3) of the Act was framed making addition to the tune of Rs.10,07,83,682/- to the returned income of the assessee under various heads. The matter went in appeal before the ld.CIT(A) who upheld the addition to the tune of Rs.9,83,23,914/- deleting the balance and on the addition confirmed by the ld.CIT(A) penalty under section 271(1)(c) of the Act was initiated and thereafter levied by the AO. The additions on which penalty was levied are as under: Para No. Nature of additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term undisclosed income and specified previous year and found that the term specified previous year included the year in which search was conducted and in the case of the assessee the assessment year involved was the search year only,. Further, he noted that all the issues on which addition was made in the case of the assessee were covered under the definition of undisclosed income which was defined in the section as any income of the specified previous year represented either wholly or partly, by any entry in respect of any expense recorded in the books of accounts or other documents maintained so in the transaction found during the course of search and which have not been recorded on before due date of search in the books of acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercising the power, the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law. (3) On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in concluding that the correct section for levy of penalty is 271 AAA of the Act, ignoring the provisions of Section 271(l)(c) of the Act, which is applicable in the circumstances when the assessee has concealed the particulars of income or when he has furnished inaccurate particulars (4) On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in observing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the said section. He noted that the requirements for levy of penalty under section 271AAA of the Act were (i) search action should have been initiated after 1stJune, 2007, (ii) there is undisclosed income and (iii) the undisclosed income relates to a specified previous year . 7. The ld.CIT(A) noted that the assessee fulfilled first condition since search in the present case was conducted in February, 2011. He noted fulfillment of the second condition of there being undisclosed income noting that all income found in the case of the assessee represented by entries in books of accounts or other documents found during the search, unexplained jewellery and unexplained marriage expenses were included in the definition of undisclosed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me referred to in section 271AAA(1) no penalty under section 271(1)(c) shall be imposed. The relevant provisions of section 271AAA of the Act are reproduced here below: 271AAA. (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 1st day of June, 2007 but before the 1st day of July, 2012, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him, a sum computed at the rate of ten per cent of the undisclosed income of the specified previous year. (2) Nothing contained in sub-section (1) shall apply if the assessee, (i) in the course of the search, in a statement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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