TMI Blog2012 (12) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... of the specified previous year represented “either wholly or partly” which onus lay upon the assessee stood discharged - As decided in DCIT Versus Pioneer Marbles & Interiors Pvt Ltd [2012 (2) TMI 261 - ITAT, KOLKATA] wherein entire tax and interest has been duly paid well within the time limit for payment of notice of demand u/s 156 and well before the penalty proceedings were concluded, the assessee could not be denied the immunity u/s 271AAA(2) only because entire tax, along with interest, was not paid before filing of income tax return or, for that purpose, before concluding the assessment proceedings - Levy of penalty u/s.271AAA in the instant cases are not justified - penalty so levied cancelled - in favour of assessee. - I.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2007-08 and had actually considered initiation of penalty proceedings u/s.271(1)(c). However, the Assessing Officer corrected himself in the Assessment Year 2008-09 for Pramod Kumar Jain and M/s.JRC Resources when he initiated penalty proceedings in the assessment order u/s.143(3) r.w.s. 153A. The assessees are transporters and retail traders in cement, Asbestos sheets and undertake labour contracts. The Assessing Officer after issuing show cause u/s.271AAA observed that the assessee has made disclosure for the respective amounts but failed to specify the manner in which such income had been derived and therefore in view of Explanation (a) to Section 271AAA imposed penalty being 10% of the amount surrendered u/s.132(4) as well as accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee u/s.132(4).The manner was also accepted by the Assessing Officer in the light of the fact that the business entities of the assessee being a Company and the individuals are being accepted by the Assessing Officer when the law provides that the undisclosed income is the income of a specified previous year represented either wholly or partly by any money, bullion or jewellery etc. Having accepted the returns with the declared income being the surrendered income, the Assessing Officer could not insist on defining the manner in which the same was given insofar as he had acknowledged that the income had been in the form of trucks and buildings which value was enhanced on the basis of part income generated from business was identified. If that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (2) thereof has to be considered together and not in isolation. The condition with respect to the manner specific for the purpose of invoking the provisions has not been defined but accepted by the Assessing Officer in as many words. The definition of undisclosed income clarifies the manner insofar as the Assessing Officer after the search only can initiate penalty u/s.271AAA when these three conditions together are not satisfied. Penal provisions are punitive and not part of the tax structure insofar as the intention of the legislation was not to take 10% over and above the tax as a matter of levy of penalty u/s.271AAA automatically. To conclude his argument, he submitted that the penalty has been levied by creating a fiction in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the learned CIT(A) rightly considered that conditions mentioned in Section 271AAA(2) are to be satisfied together was justified in confirmation of the penalty so levied. He fully supported the orders of the authorities below for his part of submissions. 6. We have heard the rival contentions and perused the material available on record. On consideration of the facts and circumstances of the case, we are inclined to hold that no definition could be given to the specified manner insofar as the very statement on oath u/s.132(4) specifies the manner on which the assessee is prepared to pay tax thereon. The inscribing in the books of account was taken care of by the assessee when he filed the returns in pursuance to notice u/s.15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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