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TMI Blog2024 (11) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... re not recorded on or before the date of search in the books of account maintained in the normal course. But under the given facts of the case, we find that no such incriminating material has been referred having nexus with the undisclosed income offered during the course of search. Now, this being the first step, which is sine qua non for proceeding ahead for visiting the assessee with the penalty under Section 271AAB of the Act and since the same is absent in the given case there is no jurisdiction left with the learned Assessing Officer to proceed with the initiation of penalty under Section 271AAB of the Act. As decided in Shri Paras mal Jain [ 2023 (7) TMI 1080 - ITAT JAIPUR] where it has been held that income surrendered is not to be construed as an undisclosed income specified in clause (c) to explanation of Section 271AAB(1) of the Act - Thus delete the impugned penalty of ₹5 lacs levied u/s 271AAB - Decided in favour of assessee. - Shri Rajpal Yadav, VP And Shri Dr. Manish Borad, AM For the Assessee : Shri P.K. Sanghai, AR For the Revenue : Shri Ankur Goyal, DR ORDER PER DR. MANISH BORAD, AM: These appeals at the instance of the assessee are directed against the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee in the written submission, we notice that the co-ordinate Bench of Jaipur in the case of DCIT vs. Smt. Indira Agrawal, Kota in ITA No. 1444/JP/2018 dated 22nd March, 2019, held as under:- 4.3 It is undisputed fact that the income surrendered during the search u/s 132(4) was duly included/ offered for tax while filing return of income u/s 153A and due taxes thereon was paid. The income surrendered and included/ offered for tax while filing return of income was accepted as such by the AO. 4.4 In above factual situation, the penalty u/s 271(1)(c) cannot be levied as the matter is covered one. Apart from the consideration given on the several case laws cited by the applicant it is worth to place the reliance on the decision Hon'ble ITAT, Jaipur Bench, Jaipur in the case of Ajay traders V/s DCIT, Central Circle, Alwar (ITA No. 296/ JP/2014) pronounced on 06.05.2016 as follows: - 4.3. We have heard rival contentions and perused the material on record. It is undisputed fact that during the course of search, no incriminating documents were found and seized. The assessee surrendered the additional income under section 132(4) at Rs. 15 lacs and requested not to impose penalty u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as cancelled. Accordingly, this ground of appeal 1 to 6 is allowed. In view of the facts and circumstances of the case and a detailed discussion in the foregoing paras of this order, we do not find any error or illegality in the impugned order of the ld. CIT(A) in deleting the penalty U/s 271(1)(c) of the Act. 09. Similar view was also taken by the Hon'ble Delhi High Courtin case of CIT v. Best. Infrastructure India Pvt. Ltd reported in (2017) 397 ITR 82, Delhi, where penalty levied under Section 271(1)(c) of the Act was deleted on the ground that the additional income surrendered by the assessee cannot be treated as concealed income only on the basis of statements recorded during the search dehors seized material. 010. Further, Hon'ble Delhi High Courtin case of Raj Pal Bhatia (2011) 333 ITR 315 (Delhi) held that the statements recorded cannot be construe as a material found during the course of search for the purpose of Chapter 14B. Further, the co-ordinate Bench Jaipur in case of Ajay Traders Vs. DCIT in ITA No. 296/JP/2014, has held that if no incriminating documents are found during the course of search explanation 5A to Section 271(1)(c) of the Act is not applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 014. We have heard the rival contentions and perused the records available on record. Assessee is aggrieved with the levy of penalty of ₹5 lacs under Section 271AAB (1) of the Act computed at the rate of 10% of the additional income of ₹ 50 lacs voluntarily disclosed during the course of search in the statement recorded under Section 132(4) of the Act. The facts remain undisputed at the end of learned Departmental Representative that no incriminating material if any found during the course of search has been referred by the learned Assessing Officer, and that the additional income voluntarily offered by the assessee is only on the basis of the statement recorded under Section 132(4) of the Act. Now, assessee who has admitted the undisclosed income in the statement under Section 132(4) of the Act has duly been offered it to tax and furnished the return declaring such additional income. Now Section 271AAB of the Act reads as under: - 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 1st day of July, 2012 but before the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us year declaring such undisclosed income therein; (b) a sum computed at the rate of sixty per cent of the undisclosed income of the specified previous year, if it is not covered under the provisions of clause (a). (2) No penalty under the provisions of section-270A or clause (c) of sub-section (1) of section-271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1) or sub-section (1A). (3) The provisions of sections 274 and 275 shall, as far as may be, apply in 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-139 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-139 for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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