Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2021 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (2) TMI 347 - AT - Income TaxPenalty u/s 271AAB - Undisclosed income - assessee had admitted undisclosed income in its statements u/s 132(4) paid the taxes together with interest thereon and filed his return of income before specified date - HELD THAT:- Merely because the quantum of penalty varies from 10% to 30% subject to compliances with the ancilliary conditions, it cannot be said that where the AO has initiated the penalty under section 271AAB, there is any ambiguity in the charge or there is any lack of application of mind on part of the Assessing officer. In the instant case, where the notice dated 28.12.2016 was issued to the assessee to show-cause why penalty should not be levied u/s 271AAB in respect of undisclosed income of the specified previous year, the assessee was made aware of the specific charge against him and an opportunity has thus been given to him to rebut such charge and therefore, we donot see any infirmity in the initiation of the penalty proceedings and consequent penalty order so passed by the AO. In the instant case, we find that while passing the penalty proceedings, the Assessing officer has given a clear finding as reflected in the penalty order that the assessee is liable for penalty U/s 271AAB(1)(a) which provides for levy of penalty @ 10% of the undisclosed income. As held by the Co-ordinate Bench SHRI RAJENDRA KUMAR GUPTA [2019 (1) TMI 1545 - ITAT JAIPUR] the uncertain charge at the time of initiation of penalty has been made good and substituted with a conclusive default at the time of passing the penalty order and that in such a case, no fault can be found in the penalty order. Therefore, the contentions advanced by the ld AR in this regard cannot accepted. Penalty levied under section 271AAB of the Act on cash advances - HELD THAT:- As mere notings in certain loose papers without any further corroboration cannot be held as conclusive to demonstrate any transactions which have been undertaken by the assessee and which have not been disclosed to the Revenue. In any case, an advance represents an outflow of funds and what has been envisaged by the legislature while defining “undisclosed income” in section 271AAB is an inflow of funds which has not been recorded in the books of accounts or other documents on or before the date of search and not an outflow of funds. Further, the deeming fiction so envisaged in section 69 and 69B cannot be extended and applied automatically in context of section 271AAB which contains a specific definition of undisclosed income - As relying on SHRI SURAJMAL BANSAL HUF case [2019 (4) TMI 1113 - ITAT JAIPUR] we delete the penalty levied under section 271AAB of the Act on cash advances as the same doesn’t satisfy the requirement of undisclosed income as so defined U/s 271AAB. Cash physically found in possession of the assessee during the course of search - The fact that such cash has been found in possession of the assessee and remain undisclosed to the Revenue is not under dispute and thus represents undisclosed income as so defined. In the result, we confirm the levy of penalty @ 10% on the undisclosed income. Difference in valuation of stock and short stock found during the course of search - whether the difference in stock is arising out of and limited to valuation of stock, can the same qualify as undisclosed income? - HELD THAT:- We find that the department valuer has carried out the valuation of stock as per the market value as on the date of search and the same has resulted in difference in valuation which cannot be a basis to hold that it represent undisclosed income so defined in explanation to section 271AAB of the Act and the penalty levied thereon is hereby deleted. Appeal of the assessee is partly allowed.
|