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2018 (11) TMI 1002 - AT - Income TaxLevy of Penalty u/s 271(1)(c) where penalty u/s 271AAA levied on the same amount - amount which was offered by the Assessee as current liability on account of advances received - Undisclosed income referred to in Section 271AAA(1) - Held that:- A valid presumption can legitimately arrived at, that the same income, which is assessed in the hands of the assessee in one year and has been accepted by the assessee, will not be offered by the assessee in any subsequent year. Subsequent conduct of NHPL, is not recognizing any income under Project completion Method, in any subsequent year, despite substantial lapse of time imparts validity to this presumption. Thus, the character of the income assessed in the Assessment Orders, changed from protective additions (at the time of Assessment Order) to substantive additions at the time when penalty orders were passed by the AO because the NHPL has accepted the additions by not filing the appeals. As the character of the additions, at the time of penalty orders U/s 271AAA of I.T. Act had already undergone change from protective additions to substantive additions, the contentions raised by the Ld. Counsel for NHPL has no merit. We are of the view that both the assessees, NHPL and NDPL have failed to comply with Section 271AAA(2)(i) and Section 271AAA(2)(ii). In addition, NHPL has also failed to comply with Section 271AAA(2)(iii). It is readily inferred from perusal of Section 271AAA of I.T. Act that the three requirements U/s 271AAA(2), i.e., Sections 271AAA(2)(i), 271AAA(2)(ii), 271AAA(2)(iii) of I.T. Act are cumulatively required to be fulfilled by an Assessee, to escape penalty U/s 271AAA(1) of I.T. Act. Thus, both the assessees, NHPL and NDPL are hit by Section 271AAA(1) of I.T. Act. However, once penalty U/s 271AAA of I.T. Act has been levied in respect of undisclosed income, the AO was in error of law prescribed U/s 271AAA(3), in imposing further penalty U/s 271(1)(c) in respect of the same undisclosed income. U/s 271AAA(3) of I.T. Act, there is clear embargo on the AO for imposing penalty U/s 271(1)(c) in respect of undisclosed income referred to in Section 271AAA(1). As far as penalty U/s 271(1)(c) in the case of NHPL for A.Y. 2012-13 in respect of undisclosed income of ₹ 63,00,000/- is concerned, the Ld. CIT(A) has given detailed reasoning for confirming this penalty. The relevant portion of the order of the CIT(A) has already been reproduced in earlier part of this order, and we have noticed that the order of the CIT(A) derives support from the precedents in the cases of MAK Data P. Ltd. v. CIT (2013 (11) TMI 14 - SUPREME COURT), CIT v MAK Data P Ltd. [. [2013 (1) TMI 574 - DELHI HIGH COURT], CIT v Acrotech Ltd. [2013 (9) TMI 901 - DELHI HIGH COURT]. Assessee did not bring any material for our consideration to warrant any interference with order of Ld. CIT(A) as far as her decision to confirm the penalty U/s 271(1)(c) of I.T. Act in the case of NHPL for A.Y. 2012-13 in respect of undisclosed income of ₹ 63,00,000/- is concerned.
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