9911796707
TMI Blog2024 (7) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... not been considered properly. 4. That the appellant craves leave to add or amend the ground of appeal before the appeal is finally heard or disposed off." 3. Briefly the facts of the case are that a search and seizure operation under section 132(1) was carried out on 08/10/2010 in Sood Group of cases wherein one of the partner of the assessee firm, Shri Sanjay Kumar Sood surrendered a sum of Rs. 2.50 Crores on behalf of the assessee firm in terms of his statement recorded under section 132(4) of the Act which include an amount of Rs. 75 Lacs for A.Y 2010-11 and Rs. 1.75 crores for A.Y 2011-12. Thereafter, in his subsequent statement recorded on 14/10/2010, he has reiterated the surrender so made at the time of search. Similarly, another partner of the assessee firm, Shri Ajay Kumar Sood in his statement recorded under section 132(4) has confirmed the additional income so surrendered on behalf of the assessee firm. Thereafter, in the return filed in response to notice under section 142(1), the assessee firm has shown surrendered income of Rs. 1.75 crores and paid due taxes and interest thereon. 3.1 As per the AO, since the assessee has failed to specify the manner in which it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and relied on various judicial pronouncements with regard to substantiating the manner in which the undisclosed income was derived. The submissions so filed were considered by the Ld. CIT(A) but not found acceptable and the penalty under section 271AAA so imposed by the AO was sustained and appeal of the assessee was dismissed. 5. Against the findings and directions of the Ld. CIT(A) in sustaining the penalty so levied, the assessee has again come in appeal before us. 6. During the course of hearing, the ld AR drawn our reference to the statement of Shri Sanjay Kumar Sood, one of the partners of the assessee firm wherein, in his statement recorded under section 132(4), he has stated that he, on behalf of the Firm, makes a voluntary disclosure of additional income of Rs. 75 lacs for F.Y. 2009-10 relevant to A.Y 2010-11 and Rs. 175 lakhs for the F.Y 2010-11 relevant to A.Y 2011-12 over and above regular income of the firm subject to no penal action or prosecution as per the provisions of the Act. It was further stated by him in the said statement that the voluntary disclosure is made to cover any discrepancy in the documents and books seized during the course of search, work in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same as done in earning the regular business income and it is just that the same is not disclosed and recorded in the books of accounts prior to date of search. It was accordingly submitted that the assessee has satisfied the necessary conditions for seeking immunity from levy of penalty as the assessee has made a disclosure of undisclosed income in the statement recorded under section 132(4) of the Act and has paid taxes alongwith interest on such undisclosed income. It was accordingly submitted that there is no basis for levy of penalty under section 271AAA of the Act. 6.3 Further reliance was placed on the following Coordinate Benches decisions such as DCIT Vs. Shri Sanjee Goyal in ITA No. 109/Chd/2015 & Others (Chd Trib), Shri Manoj Sahni Vs. DCIT in ITA No. 1372/Chd/2017 & Others (Chd Trib), DCIT Vs. Shri Pardeep Aggarwal in ITA No. 1100/Del/2015 (Del Trib), Sunil Kumar Bansal Vs. DCIT 70 SQT 137 (Chd Trib), ACIT Vs. Munish Kumar Goyal 152 ITD 453 (Chd Trib), Neerat Singal Vs. ACIT 161 TTJ (Del Trib), Pramod Kr. Jain Vs. DCIT(2012) 77 DTR (CTK. Trib) 244, Ashok Kr. Sharma Vs. DCIT (2012) 77 DTR (CTK. Trib) 241 and decisions of Hon'ble Courts in case of CIT Vs. Sudhir Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty provisions have to be strictly construed and in the instant case, the provisions of Section 271AAA have been invoked by the AO and it thus needs to be seen whether the conditions specified therein have been fulfilled before the levy of penalty is fastened on the assessee firm. The said provisions provides that the Assessing officer may direct that where the search has been initiated on or after June 1, 2007, the assessee shall pay by way of penalty at the rate of 10% of the undisclosed income of the specified previous year. Therefore, the essential condition which needs to be satisfied before levy of penalty is that there is an undisclosed income of the specified previous year as found during the course of search. The term "undisclosed income" has been specifically defined in the explanation to section 271AAA to mean any income of the specified previous year represented either wholly or partly by any money, bullion, jewellery or other article or thing found during the course of search which has 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. Therefore, the fact that surre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical error as so pointed out by ld DR. It seems to us that the ld CIT(A) was swayed by the contention of the assessee in seeking immunity from levy of penalty u/s 271AAA(2) of the Act and in that context, he apparently held that it is for the assessee to demonstrate that income so surrendered falls in the definition of undisclosed income as so defined. As we have held earlier, it is for the Assessing officer to record a specific finding that undisclosed income as so defined has been found based on tangible verifiable material found during the course of search and the onus is thus on the Assessing officer (and not on the assessee) to satisfy the conditions before the charge for levy of penalty is fastened on the assessee. The assessee might be seeking immunity under section 271AAA(2) but before that the charge for levy of penalty has to be satisfied by the AO and for that, it for the AO to record a specific finding as to the fulfillment of conditions specified therein and which apparently has not been fulfilled in the instant case. In light of aforesaid discussion and in the entirety of facts and circumstances of the case, we are of the considered view that there is no justifiable a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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