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2019 (3) TMI 1305 - AT - Income TaxPenalty u/s 271AAA - appellant had made disclosure/surrender u/s 132(4) - if assessee has not paid the tax together with interest in respect of the undisclosed income, before the due date of filing of return of income but certainly before the assessment is made, would he get the immunity from penalty u/s 271 AAA or not? - time limit prescribed for getting the immunity - tax and interest has not been paid on or before the passing of the assessment order u/s 143 (3) - such tax should have been paid before at least due date of the filing of the return of income - HELD THAT:- As per information available on record it is apparent that assessee has not paid the tax together with the interest in respect of the undisclosed income before the due date of filing of the return of income except, case seized of INR 12,100,000 during the course of search. Admittedly on such cash seized which is adjusted by the AO later on under section 154 of the income tax act the assessee should get benefit of the sum at least. However with respect to the balance sum, the assessee has not paid tax before the due date of the filing of the return for that impugned assessment year i.e. on or before 30/9/2011. Admittedly such tax has not been paid before the due date of filing of return of income but only later on. Reading of the provisions of section 271AAA we also do not find that there is any time limit for payment of the tax, despite the necessary condition. It is rather surprising that the legislator has made a condition precedent for immunity from levy of the penalty of payment of taxes along with interest on undisclosed income, but has not prescribed the time limit for the payment of such tax. It is necessary that whenever there is a condition precedent from seeking immunity from penalty of payment of tax, naturally there should also be a timeline by which it should have been paid. The legislature has not put such timeline. The honourable courts have interpreted such timeline up to the date of assessment because that is the time when the taxes are computed on the undisclosed income. CIT A has held that assessee has not paid tax alongwith the return of income, however there is another provision for consequences of for non payment of self assessment tax u/s 140A (3) of the Act but not 271AAA of the act. As relying on SMT. RITU SINGAL [2018 (3) TMI 593 - DELHI HIGH COURT] we hold that when assessee has deposited complete tax before the assessment is made, the penalty u/s 271AAA to that extent cannot be levied. However, on reading the orders of the lower authorities as well as the information furnished by the AR, it is not certain about what is amount of tax paid before making the assessment u/s 143(3). Hence, we set aside the whole issue back to the file of the AO with a direction to levy penalty only on the proportionate sum for which tax and interest has not been paid on or before the passing of the assessment order u/s 143 (3) of the act. Accordingly, we reverse the order of the lower authorities and direct the learned assessing officer to recompute penalty u/s 271AAA of the act only on the tax along with interest on undisclosed sum remaining outstanding up to the date of assessment. - Appeal of the assessee is allowed for statistical purposes.
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