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2017 (11) TMI 1760 - AT - Income TaxLevy of penalty u/s 271AAB - undisclosed income disclosed during the search - non specifying the manner in which such undisclosed income has been derived and substantiates the manner in which the undisclosed income was derived - nature of penalty provisions as contained in section 271AAB(1)(a) and 271AAB(1)(c) - whether these provisions provide for levy of penalty on account of separate and independent charges or these provision provide for levy of penalty for the same charge under section 271AAB? - Held that:- The provisions of Section 271AAB(1)(a) are pari materia to Section 271AAA(2) so far as it relates to satisfaction of condition whereby it requires specifying the manner of earning of undisclosed income as well as to substantiate the manner in which the undisclosed income was derived. The legal proposition so laid down in context of section 271AAA(2) thus equally applies in context of section 271AAB(1)(a) of the Act. On review and examination of above statement of the assessee recorded u/s 132(4) of the Act, we find that no specific question(s) were raised to the assessee drawing his attention to the provisions of section 271AAB which require the assessee to specify the manner of earning of undisclosed income as well as to substantiate the manner in which the undisclosed income was derived. In absence of a specific query raised during the course of search drawing assessee’s attention to the provisions of section 271AAB where the statement of the assessee was recorded u/s 132(4) about the manner in which the undisclosed income has been derived and its substantiation thereof, the AO was not justified in invoking the residuary provisions of clause (c) of section 271AAB(1) instead of clause (a) of section 271AAB(1) of the Act. The assessee having satisfied the other conditions specified in section 271AAB(1)(a), which remain undisputed, in terms of admission of undisclosed income in the statement recorded u/s 132(4), payment of taxes together with interest, if any in respect of undisclosed income on or before the specified date and declaring the undisclosed income in the return of income for the specified previous year on or before the specified date, we are of the view that the ld CIT(A) has rightly varied the levy of penalty and confirm the levy of penalty @ 10% in terms of section 271AAB(1)(a) of the Act. In the result, we affirm the order of the ld CIT(A) and dismiss the appeal of the assessee as well as the revenue.
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