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2021 (3) TMI 558 - ITAT AGRAPenalty u/s. 271(1)(c) - surrender of income in survey proceedings - assessee argued for non-specific notice initiating the penalty - As submitted amount of 1.5 crore was declared during the course of survey and was offered for taxation to avoid litigation and to buy peace - HELD THAT:- There was no ambiguity in the mind of the assessee either at the assessment stage or at the stage of imposition of penalty that the assessee had not disclosed the income of ₹ 1.5 crore in the return of income, despite surrendering ₹ 1,80,00,000/- during survey proceedings. The above said plea of non-specific notice was not raised by the assessee before the Commissioner (appeal). In our considered opinion the notice was issued to the assessee and the assessee had also filed the reply declaring the entire undisclosed amount in the return of income, as was surrendered on survey. The sum and substance of the submission was that the assessee was well aware of the charge against the assessee and the assessee was required to plead not only the plea of non-specific notice but is also required to raise the defense of prejudice caused to him on account of nonspecific notice. In our considered opinion the assessee has not raised the plea of non-specific notice before the lower authorities and have further not raised the plea of prejudice caused to him on account of non-specific notice. Nothing has been pleaded before us or before the lower authorities to prove the prejudice caused to the assessee on account of non-specific notice. In the light of the above we do not find any merit in the contention of the assessee and therefore the CO filed by the assessee is required to be dismissed as no prejudice had been caused to the assessee - charge against the assessee was known to the assessee and had filed the reply thereto setting up the plea of buying the peace and to curtail the litigation. However in the reply the assessee has not submitted that he was not aware of the charges for which the penalty notices were issued by the assessing officer. Surrendered income during the course of survey - Initial surrender made by the assessee on 25 July 2012 was on account of the recovery of loose papers, hard disk and other documents showing the undisclosed income and investment made by the assessee, his daughter and son. It was not voluntary but it was on account of the recovery of the said documents made during survey. Further, from the conduct of the assessee, it is clear that the surrender was lacking voluntariness. In our view the assessee was forced to disclose the income on account of survey and subsequent show cause notice issued by the assessing officer. In view of the above said we do not find any justification for the CIT(appeals) to delete the penalty . Hence the order passed by the CIT (appeals) is required to be annulled and the order of the assessing officer imposing the penalty is required to be confirmed. Accordingly we confirm the penalty imposed by the assessing officer. - Decided against assessee.
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