9911796707
TMI Blog2014 (1) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Naresh Kumar Agarwal. All these appeals have been filed by the Revenue against different orders of the ld. CIT(A)-Central-II, Kolkata for A.Yrs. 2008-09 and 2009-10. The only issue involved in all these appeals relate to the deletion of penalty imposed by the AO u/s 271 AAA of the I.T. Act. 2. At the time of arguments both the parties agreed that since the facts in all these appeals are common therefore whatever view the Tribunal may take in the case of Shri Naresh Kumar Agarwal the same view may be taken in the case of other assesses. ITA Nos.1289-1290/Kol/2012 (Shri Naresh Kumar Agarwal) 3. The brief facts are that a search and seizure action u/s 132 of the I.T.Act was conducted in the case of 'Sri Ram Sonthalia & Kushal Group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of search, bank accounts and the investments made in the firms. Thereafter, the AO has also stated about the disclosure made by the appellant in the course of search for A.Y.2008-09 and A.Y.2009-10. In the assessment completed by the AO, he accepted the disclosure made by the appellant and shown in the return of income. However, he made certain observations and initiated the penalty proceedings u/s 271AAA of the Act. From the assessment order it is apparent that the AO has not discussed about any of the seized document which could reveal that the appellant had earned the undisclosed income for which disclosure of undisclosed income was made by him. There is no observation of the AO as to whether the disclosure made by the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome. The appellant also failed to substantiate the disclosure by furnishing the documents or other related and matching documents. The source of the undisclosed income which was claimed as from the real estate business and other businesses could neither be proved nor could be substantiated in any manner by the appellant. Therefore, the conditions laid down in sub-section (2) of section 271AAA are not satisfied. On the other hand, it is argued by the appellant that the conditions of sub-section (2) of section 271AAA are satisfied because in the course of search he has admitted the undisclosed income in the statement u/s 132(4) and also specified the manner in which such income has been derived. The appellant declared the undisclosed income i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that the AO was not justified in imposing the penalty. The provisions of section 271AAA were inserted in the statute by the Finance Act, 2007, w.e.f. 1.4.2007. The sub-section (1) of section 271AAA says that, the AO may, notwithstanding anything contained in any other provisions of the Act, direct that, in a case where search has been initiated under section 132 on or after the 1st day of ]une,2007, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him, a sum computed at the rate of ten percent of the undisclosed income of the specified previous year. The meaning of 'specified previous year' has also been defined in Explanation (b). From the reading of sub-section (i), it is apparent that the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogus expenses. In the case of appellant cash of Rs. 9,67,5001- was found from various premises which he stated to be treated as undisclosed income for A.Y.2009-10 and part of the disclosure. Besides that, as per the assessment order jewellery worth Rs. 15,99,811/- was declared for A.Y. 2009-10. The AO has not discussed anything about the undisclosed income for the year under consideration detected as a result of search. For the year under consideration the appellant made surrender of undisclosed income at Rs.l,25,00,0001- and paid the tax and same was also accepted by the AO. Under the circumstances, I am of the opinion that merely for the reason that the appellant had offered a higher amount of undisclosed income and also paid the tax ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant had admitted the undisclosed income in the course of search in the statement u/s 132(4) and specified the manner in which such undisclosed income has been derived. The appellant also paid the tax on such undisclosed income. I find force in the submission of the appellant that since no document was found during the search which could even indicate any undisclosed income earned by him, the question of substantiating the same is impractical. Therefore I am of the considered opinion that the appellant could not be denied immunity under section 271AAA(2) of the Act. In view of the above, it is to be held that the AO was not justified in imposing penalty u/s 271AAA of the Act. He is directed to delete the penalty. The ground no.1 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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