9911796707
TMI Blog2025 (1) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... same are being disposed off by this common order. 2. Revenue has raised following grounds in quantum appeal (ITA No.6942/Del/2019): - "1. On facts and circumstances of the case and in law, the Ld CIT (A) erred in law while concluding that the addition of Rs. 2 crores made by AO in respect of unexplained cash found during search over and above the income of 9 crore surrendered by the assessee u/s 132(4) based on page 3, 4 & 6 of LP-1 would tantamount to double addition. No evidence/details were given by assessee so prove that the sum of Rs. 2 Cr received back on cancellation of alleged deal was from the very same person to whom the cash advances of 9 Cr was given at earlier occasion. 2. On facts and circumstances of the case and law, the Ld CIT (A) failed to appreciate that the contention of the assessee that transactions recorded on the page No. 3,4 & 6 of LP-1 of the seized documents were unexplained cash advances of 9 Cr given for purchase of land on three different dates out of which only 2 Cr being received back due to non-execution of the deal was only a make belief argument devoid of logic because if the deal was cancelled, he should have received back the entire amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shell, the Revenue, in Quantum appeal vide argumentative grounds, has challenged the deletion of Rs. 2.00 Crores by the Ld. CIT(A). The appeal of the Revenue revolves around the reasoning that Rs. 2.00 Crores was not part of the surrendered income of Rs. 9.00 Crores. 2.2 In Penalty appeal, the Revenue has challenged the finding of the Ld. the CIT(A); i.e. upholding of penalty @ 10% as against 30% levied by the Assessing Officer ((hereinafter, 'AO'). In C.O., the assessee has questioned the basis of upholding of penalty @ 10%. ITA No.6942/Del/2019: 3. The assessee was searched under section 132 of the Income Tax Act, 1961 (hereinafter, the 'Act') on 30.09.2015 along with AIRWIL Group of cases, a Real Estate Developer of Noida, Uttar Pradesh. Various incriminating documents were seized from the premises of the assessee. The assessment of AY 2016-17 was completed under section 143(3) of the Act at income of Rs. 11,88,88,240/- as against the returned income of Rs. 9,88,88,240/-. During the course of search proceedings, the statement of the assessee was recorded under section 132(4) of the Act, wherein he had surrendered the income of Rs. 9.00 Crores for the relevant year i.e. F.Y. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read asunder:- "उपरोक्त प्राप्त नकद धन राशी में से रूपये एक करोड़ नौ लाख उन्नासी हजार तिन सौ उन्नीस मात्र मेरा Business entity (कम्पनी) को Booked of A/c में दर्ज है (cash in hand) तथा इसके साक्ष्य के रूप में, में cash Books as on date तथा कम्पनी रिजोल्यूशन प्रस्तुत कर रहा हूँ I & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... खरीद हेतु बयाना दिया जो कि मेरे निवास से प्राप्त डायरी (स्पाइरल) जो कि आपके LP -1 में सीज्ड है में भी दर्ज है I किसी कारण यह सौदा पूर्ण न हो पाने के कारण : मुझे मेरा दिया हुआ बयाना ; रूपये दो करोड़ मात्र कि रकम मुझे वापस 28/09/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 367;सकी तारीख वारी विवरण इन पेजों पर लिखी है I मैं यहाँ स्पष्ट करना चाहूँगा कि जैसा प्रश्न संख्या 7 में मैंने बताया है कि इन रूपये नौ करोड़ में से ही रुपये दो करोड़ वापस मिला था जो आज कार्यवाही के दौरान सीज हुआ है I ज ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5;ं सरेंडर करता हूँ तथा निवेदन करता हूँ कि मेरे विरुध कोई भी दण्डात्मक कार्यवाही नहीं कि जाएगी I मैं पुनः स्पष्ट कर रहा हूँ कि उपरोक्त अघोषित आय वित्त वर्ष 2015-2016 में मेरी नियमित आय के अतिरिक्त एवं उपर से होगी I" 5.1 The Ld. AR also placed em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus, it is concluded that the cash seizure of Rs 2,00,00,000/- includes the total surrender of Rs 9,00,00,000/- made by the appellant, during this relevant assessment year. Therefore, further addition made by the AO of Rs. 2,00,00,000/- would tantamount to double addition of the same amount, which is impermissible in low." 5.2 The Ld. AR further submitted that the statement recorded under section 132(4) of the Act had to believe true and complete until proved otherwise with the help of corroboratory evidence. The statement under section 132(4) of the Act had been recorded during the course of search operations when the assessee was under stress and wanted to come out of the clean. He further submitted that the Ld. CIT-DR had not brought any material on the record to contradict the findings of the CIT(A). Hence, the order of the Ld. CIT(A) required to be upheld. 6. We have heard both the parties and perused the material available on record. We find force in the argument of the Ld. AR on the simple reasoning that the assessee had categorically admitted in the statement recorded under section 132(4) of the Act that the advance of Rs. 2.00 Crores given for a plot got refunded back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified the charge liable for penalty under section 271AAB(1) of the Act. Therefore, the penalty levied under section 271AB(1)(a) of the act was not leviable at all. In support of the argument, the Ld. AR placed reliance on the decision of the co-ordinate Bench in the case of Jaina Marketing & Associates, 162 taxman.com 439 wherein it was held that the penalty notice should specify and convey the charge against the assessee for which penalty has been proposed to be levied. He drew our attention to the relevant portion of the said decision as under: "21. As could be seen from the above the notice issued u/s 271AAB of the Act, it does not depict the charge against the Jaina Marketing & Associates, Delhi assessee as to under which Clause (a), (b) or (c) or Section 271AAB (1) or Clause (a) or (b) of 271 AAB (1A) of the Act penalty is leviable on the assessee. Therefore, we 0are of the opinion that the notice initiating penalty u/s 271AAB of the Act is vague and the assessee was not made aware of the actual charge on which the penalty proceedings will be initiated on the assessee. The various judicial precedents have held that the penalty notice should be clear enough to convey the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 274 read with section 271AAB (APB Page 1) that the AO was not clear as to on what precise charge the appellant was asked to show cause, whether the assessee shall pay by way of penalty under clause (a), (b) or (c) of section 271AAB. The AO has just mentioned "deliberately concealed the true income". Thus, the AO without mentioning specific default of the assessee in terms of clause (a), (b) or (c) of section 271AAB of the Act, the, show cause notice issued in routine manner cannot be considered a valid notice in the eyes of law and accordingly the levy of penalty against the assessee is held to be void ab initio. Further, the assessee has substantiated the undisclosed cash available, as to the extent of surrendered income of Rs. 8,73,000/-. 6. In view of the above, considering the peculiar facts, the grievance of the assessee is accepted as genuine and as such the order of the Id. CIT (A) sustaining the penalty is hereby quashed. 7. In the result, appeal of the assessee is allowed." 22. The Indore Bench of the Tribunal in ITA No. 869/1nd/2018 in the case of Shri Ashok Bhatia vs. DCIT vide order dated 05.02.2020 held as under:- "8. From perusal of the above provision we o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court in the case of CIT V/s Manjunatha Cotton Ginning Factory and CIT v/s SSA'S Emerald Meadows (supra) held that such show cause notices would not satisfy the requirement of law as notice was not specific. 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 161 Taxmann 218 held that "the quasi-criminal proceedings u/s 271(1)(c) of the Act ought to comply with the principles of natural justice". 15. We, therefore respectfully following the judgment of jurisdictional High Court in the case of PCIT V/s Kulwant Singh Bhatia (supra), decision of Coordinate Bench of Chennai in the case of DCIT V/s R. Elangovan (supra) and Jaipur Bench in the case of Ravi Mathur Vs DCIT (supra) and in the given facts and circumstances of the case wherein the matter written in the body of the notice issued u/s 274 of the Act does not refer to the charges of provision of Section 271AAB of the Act makes the alleged notice defective and invalid and thus deserves to be quashed. Since the penalty proceedings itself has been quashed the impugned penalty of Rs. 64,22,348/- stands deleted. Thus, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reddy Sreelakshmi, Tirupati. ii) Indore Bench of the Tribunal in ITA No. 249/Ind/2021 dated 28.06.2022 ACIT vs. Shri. Arnit Tiwari iii) Jabalpur Bench of the Tribunal in ITA No. 1218/JP/2019 dated 02.08.2022 Shri Mahaveer Prasad Agarwal vs. DCIT. 25. For the detailed reasoning and discussion made above and considering the fact that no specific charge has been mentioned in the penalty notice issued u/s 271AAB of the Act and also following the principles laid down in the above judicial pronouncements, we delete the penalty imposed by the A.O. On this technical ground for the Assessment Years 2018-19 & 2019-20. 26. Since, penalty is cancelled on technical ground, the adjudication of levy of penalty on merits becomes academic in nature. Hence, no opinion is rendered thereon and they are left open. Accordingly, Appeals filed by the assessee are allowed." 8. In view of the fact that no specific charge has been mentioned in the penalty notice issued u/s 271AAB of the Act, following the reasoning of the decision in the case of Jaina Marketing & Associates(supra) and also following principles laid down in the judicial pronouncements mentioned in the case of Jaina Marketing & Assoc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
