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Asst Commissioner Of Income Tax Versus M/s Hicons Developers

2016 (1) TMI 665 - ITAT MUMBAI

Penalty under section 271AAA - CIT(A) deleted the penalty holding that the cash seized from the assessee is deemed to be adjusted against the tax due from the assessee - Held that:- The basis for penalty levied by AO was that the assessee has not paid full tax alongwith interest on the undisclosed income which is required under section 271AAA(2)(iii) of the Act whereas in the present case the entire amount has already been deposited. Therefore it was rightly held by the CIT(A) that it is not a f .....

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favour of assessee. - ITA No.913/Mum/2014 - Dated:- 30-12-2015 - RAJENDRA, AM & SANDEEP GOSAIN, AM For the Petitioner : M/s Kusum Bansal For the Respondent : Shri Deepak Tralshawala ORDER Per: Sandeep Gosain: This appeal is preferred by Revenue against the order dated 28.11.2013 passed by CIT(A)-39, Mumbai and it pertains to A.Y. 2009-10 on the grounds mentioned below: - "1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that penalty under .....

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ied out on the assessee on 24.02.2009. During the course of search, assessee had made disclosure of income of ₹ 6,82,56,790/-. The said disclosure was specified to be in respect of sale of certain flats in La-Fonte and La-Marque projects and after adjusting cash expenses, the net income of ₹ 6,82,56,790/- was admitted and offered to tax. The return of income was filed for the relevant year offering the said income. AO had initiated penalty proceedings under section 271AAA of the Act .....

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sposed off by this consolidated order. At the very outset the learned D.R. representing the Department has submitted that during the search and seizure action, assessee voluntarily disclosed income of an amount of ₹ 6,82,56,790/-. Therefore penalty proceedings under section 271AAA of the Income Tax Act was initiated for disclosure of income of ₹ 6,82,56,790/-. It was further submitted that since assessee has not fulfilled the conditions as laid down in subsection (2) of section 271AA .....

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in La-Fonte and La-Marque projects and after adjusting the cash expenses net income of ₹ 6,82,56,790/- was offerd to tax. The return of income was filed in the relevant year offering the said income. AO had initiated penalty proceedings under section 271AAA only for the reason that all the conditions as specified in subsection (2) are not satisfied. In this respect it was submitted by assessee that subsequent to the search action on 24.02.2009 return of income was field within the prescri .....

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ction 271AAA immunity is provided in such cases if assessee has admitted undeclared income in statement under section 132(4) and specifies and substantiate the manner in which such income is derived and pays the tax together with interest in respect of such undeclared income. 6. We have heard the rival submissions and perused the records. We have also perused the detailed order passed by CIT(A) while deleted penalty. The CIT(A) has categorically mentioned in para 8 of his order as under: - " .....

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posited through challan dated 103.2011. Thus it can be seen that the seized cash has been adjusted towards the tax due on income as disclosed in the return, albeit as regular tax. Even though it has been remitted as regular tax, the fact of the matter is the entire seized cash which was in the custody of the department, had all along been requested by the assessee to adjust against the tax alongwith interest on the income as disclosed. Further, there is no dispute that the appellant has specifie .....

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income. On the said specific facts and circumstances of the case, it is held that this is not a fit case for levy of penalty under s. 271AAA for the reason that when a request for adjustment on the seized cash had been made as it is evident from the computation of income filed alongwith return of income, and when the A.Q had finally made the adjustment, the conditions as stipulated in sub-section (iii) to section 271AAA(2) is also deemed to have been satisfied. The penalty imposed of ₹ 68 .....

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