Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2019 (6) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (6) TMI 923 - AT - Income TaxPenalty u/s 271AAB - residual surrender of income made during recording of statements u/s 132(4) - Surrender on account of jewellery and silver items found at the residence of the assessee - HELD THAT:- When the benefit of the personal jewellery of various family members is required to be given while considering the undisclosed income on account of jewellery as well as valuation of the same has been based on the cost of acquisition for treated as undisclosed income. Since, the valuation as well as the year of acquisition was not ascertained either during the course of search or in the subsequent prevailing even in the penalty proceeding. Therefore, this issue of levy of penalty U/s 271AAB in respect of surrender made on account of jewellery and silver items is set aside to the record of the AO to verify and consider all the relevant facts as discussed above and then decide the same afresh at the giving an opportunity of hearing to the assessee. The penalty in respect of surrender of ₹ 50 lacs an account of any other discrepancy or irregularity:- It is clear from the record that the assessee has made a surrender of ₹ 50 lacs on account of any other irregularity or discrepancy if any found. There is no dispute that no such discrepancy or irregularity was detected either by the department during search proceedings or by the AO during the assessment proceedings and penalty proceedings then mere surrender of the amount without any incriminating material or any undeclared assets it cannot be treated as undisclosed income of the assessee in terms of Section 271AAB. See SHRI RAJENDRA KUMAR GUPTA VERSUS THE DCIT, CENTRAL CIRCLE-2, JAIPUR. [2019 (1) TMI 1545 - ITAT JAIPUR] In the case in hand when no such discrepancy or irregularity was found by the AO then the mere surrender U/s 132(4) will not ipso facto attract the penalty U/s 271AAB until and unless the same is qualified as undisclosed income as per definition provided in the explanation to Section 271AAB. The levy of penalty U/s 271AAB is not mandatory but the AO is required to take a decision based on the facts and material and then to arrive to the conclusion that the income disclosed by the assessee falls in the definition of undisclosed income as provided in the explanation to Section 271AAB. Since, we have decided the issue of levy of penalty on merits in favour of the assessee therefore, we do not propose to go into the issue challenging the validity of initiation of the penalty U/s 271AAB. - Decided in favour of assessee.
|