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TMI Blog2025 (1) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... is no need to interfere with the findings of the Ld. CIT(A). Consequentially, the Quantum appeal filed by the Revenue stands dismissed. Penalty @ 30% u/s 271AAB(1)(a) - assessee surrendered the income during the course of search proceedings - non specification of clear charge - as per revenue assessee did not fulfill the terms and conditions laid down under section 271AAB(1)(a) and the assessee has also not divulged the source and manner of earning such income - HELD THAT:- As no specific charge has been mentioned in the penalty notice issued u/s 271AAB following the decision in the case of Jaina Marketing Associates [ 2024 (3) TMI 1007 - ITAT DELHI] we delete the penalty imposed by the AO on the technical ground. Merely issuing notice in general proforma will negate the very purpose of natural justice. Hon'ble Apex Court in the case of Dilip N Shrof [ 2007 (5) TMI 198 - SUPREME COURT ] held that the quasi-criminal proceedings u/s 271(1)(c) ought to comply with the principles of natural justice - Decided in favour of assessee. - Shri Yogesh Kumar Us, Judicial Member And Shri Avdhesh Kumar Mishra, Accountant Member For the Revenue : Ms. Jaya Chaudhary, CIT(DR) For the Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the fact that the cash of Rs. 2 Cr. represented unexplained money which was not recorded in books and also due to fact that the transaction of acceptance of cash and repayment in connection in with transfer of immovable property (whether finally transferred or not) is in violation of provisions of section 269SS as amended by Finance Act 2015 and hence applicable for AY 2016-17 also. 4. On facts and circumstances of the case and in law, the Ld. CIT (A) failed to appreciate that the mere statement u/s 132(4) that the cash found during search was out of cash received from earlier advances given was only a bald statement without any evidence/detail to support the same and hence the burden u/s 69A could not have been said to have been discharged. 5. On facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that unless the assessee has been able to establish the link between the unaccounted money paid and unaccounted money received, the benefit of automatic telescoping is impermissible as also held in cases of Anantharam Veerasinghaiah Co. 1323 ITR 457 (SC), Bhaiyalal Shyambihari 276 ITR 38(Alld) Vijay Agri Industries 294 ITR 610(Alld), Madathi Jamud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during search operation. Therefore, the amount of Rs 2,00,00,000/- deserves to be added to the total income of the assessee for the year as undisclosed money in the hands of the assessee under section 69A of Income The Act, 1961. Penalty u/s 271AAB of the Act is initiated on account of undisclosed income detected during the search operation. [Unexplained Cash Rs. 2,00,00,000/-] In appeal, the Ld. CIT(A) knocked off the said addition of Rs. 2.00 crores. Aggrieved, the Revenue filed appeal before the Tribunal. 4. The Ld. CIT-DR, placing emphasis on the statement recorded under section 132(4) of the Act, submitted that Rs. 2.00 Crores were not part of the surrendered income of Rs. 9.00 Crores. The Ld. CIT-DR drew our attention to some parts of statement recorded under section 132(4) of the Act to submit that Rs. 2.00 Crores was not part of the surrendered income of Rs. 9.00 Crores. 5. On the other hand, the Ld. Authorized Representative (hereinafter, the AR ) submitted that the assessee was involved in the business of sale of plot as a real estate developer. He used to advance sum not only through banking channel but also through cash during the prcess of acquisition of plots as sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52;ोड़ मात्र वित्त वर्ष 2015-16 में अपने निजी हाथों में अघोषित आय के रूप में सरेंडर करता हूँ I मैं इस पर नियम अनुसार आयकर अदा करूँगा I यह सरेंडर , मैंने स्वेच्छा से अपनी मानसिक शांति के लिए किया है I मेरा निवेदन है कि इसके कì ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 381;त हुआ है I उपरोक्त पेजों पर मेरे द्वारा किये जाने वाले जमीन को खरीद - फरोख्त का विवरण दर्ज है I एवं यह वित्त वर्ष 2015 2016 से सम्बन्धित लेन - देन है I जैसा कि मैंने पिछले उत्तर में बताया है कि मै Real Estate का काम करता अतः इसी सम्बंध ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ड़ मात्र वित्त - वर्ष 2015-16 में अघोषित आय के रूप में सरेंडर करता I मैं यहाँ यह स्पष्ट करना चाहूँगा कि प्रश्न संख्या 5 में , मेरे द्वारा सरेंडर किया हुआ रुपया दो करोड़ इस कु रुपये नौ करोड़ में शामिल है I जैसा कि डायरी की Entry ì ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,00,000/- on the basis of incriminating documents LP-1. Further, in a specific answer to question no 7. of the sworn statement appellant has specifically mentioned that Rs 2,00,00,000/- seized, during the search operation was out of advance received back on 28.09 2015 against the advance given on 07.04.2015, which is recorded on Page No. 3 of LP-1 against purchase of land. The appellant has specifically mentioned that he is into the business of purchase and sale of land and as part of such business transaction only, appellant has entered into the transaction of Rs. 9,00,00,000/-, which were recorded on Page No. 3, 4 and 6 of LP-1 and out of such sum only, Rs. 2,00,00,000/- was received back by appellant, which was found during search. The fact that appellant has specifically mentioned that sum of Rs. 2,00,00,000/- is part of Rs 9,00,00,000/- and was part of advance received back is clearly mentioned in statement u/s 132(4) of Income Tax Act, 1961 itself in response to Ques No 7 Ques No. 9 and Ques No 10. The mention of the AO that the appellant has separately offered a sum of Rs 2,00,00,000/- to tax is completely wrong and far away from the facts of the case and statement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he inference emerged from the statement recorded under section 132(4) of the Act; therefore, we are of the considered view that there is no need to interfere with the findings of the Ld. CIT(A). Consequentially, the Quantum appeal filed by the Revenue stands dismissed. Various grounds raised in the Quantum appeal are thus, consequentially disposed off as the same do not specific adjudication. Accordingly, the appeal filed by the Revenue is dismissed. ITA No.2276/Del/2023 and C.O. No.84/Del/2024: 7. The assessee has surrendered the income of Rs. 9.00 Crores during the course of search proceedings as evident from the above. The AO levied penalty @ 30% on such income under section 271AAB(1)(a) of the Act on the reasoning that the assessee did not fulfill the terms and conditions laid down under section 271AAB(1)(a) of the Act and the assessee has also not divulged the source and manner of earning such income. On the other hand, the Ld. CIT(A) has held otherwise and has given a categorical finding that the assessee has fulfilled the terms and conditions laid down under section 271AAB(1)(a) of the Act and thus, the penalty was leviable @ 10% instead of 30%. Aggrieved, the Revenue filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the statement recorded under section 132(4) Itself is not sufficient to levy the penalty under section 271AAB of the Act until and unless the income so disclosed by the assessee falls in the definition of undisclosed income defined in the explanation to section 271AAB(1) of the Act. Therefore, the question whether the income disclosed by the assessee is undisclosed income in terms of the definition under section 271AAB of the Act has to be considered and decided in the penalty Since the assessee has offered the said income in the return of income filed under section 139(1) of the Act, therefore, the question of taking any decision by the AO in the assessment proceedings about the true nature of surrender made by the assessee does not arise and only when the AO has proposed to levy the penalty then it is a pre-condition for invoking the provisions of section 271AAB that the said income disclosed by the assessee in the statement under section 132(4) is an undisclosed income as per the definition provided under section 271AAB. Therefore, the AO in the proceedings uno section 271AAB has to examine all the facts of the case as well as the basis of the surrender and then arrive to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty for the contravention of the related provisions of the Act which in the instant case relates to not surrendering of undisclosed amount during the course of search which is subsequently admitted during the course of assessment and not challenged before the Ld. CIT(A). So it was incumbent for Ld. A.O that in the notice issued u/s 274 of the Act he should have mentioned that penalty u/s 271AAB of the Act may be levied on 10/20/30% since the assessee falls in Clauses (a)/(b)/(c) of section 271AAB of the Act. He should have further mentioned that as the assessee s case falls under clause-c of section 271AAB of the Act, why she should not be visited by penalty (30% of the undisclosed income. Against this charge the assessee should have been given a reasonable opportunity of being heard. From going through the above three notices issued to the assessee on 22.03.2016, 03.06.2016 and 16.09.2016, we find that there is no mention about various conditions provided u/s 271 AAB of the Act. The Ld. A.O has very casually used the proforma used for issuing notice before levying penalty u/s 271(1)(c) of the Act for the concealment of income or furnishing of inaccurate particulars of income. Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee has been heard. or has been given a reasonable opportunity of being heard. To comply with this requirement the notice u/s 274 should be clear enough to convey the assessee about charge which is to be leveled against him/her it for levying penalty for contravention of the related provisions of the Act. So it was incumbent for Id. AO that in the notice issued u/s 274 of the Act should have mentioned that penalty u/s 271AAB of the Act may be levied @ 10/20/30% since the assessee falls in Clauses (a)/(b)/(c) of section 271AAB of the Act. He should have further mentioned that as the assessee s case falls under Clause-c of section 271AAB of the Act, why he should not be visited by the penalty (i.e. 30% of the undisclosed income. Against this charge. the assessee should have been given reasonable opportunity of being heard. 10. From going through the above notice issued to the assessee on 28.12.2017. we find that there is no mention about various conditions provided u/s 27IAAB of the Act. The Id. AO has very casually used the proforma used for issuing notice before levying penalty u/s 271(1)(c) of the Act for the concealment of income or furnishing of inaccurate particulars of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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