TMI Blog2014 (1) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant: Shri A.P. Roy, JCIT,Sr.DR For the Respondent: Shri K.K. Chhaparia, FCA ORDER Per Shri P.K. Bansal, AM Since all these appeals relating to different assesees have a common issue therefore for the sake of convenience and as agreed by both the parties all these appeals have been disposed off by this common order on the basis of the facts in the case of 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' on 24.04.2008 and subsequently the assessee m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d made voluntary offer of undisclosed income in the statement u/s 132(4). The appellant declared the undisclosed income in the return filed u/s 153A and paid the tax along with interest on such income. On going through the assessment order, I find force in the submission of the appellant that, but for the statement made by him, it would not have been possible for the Department to assess the undisclosed income as offered in the return of income. In the penalty order the AO repeated the same observations as made by him in the assessment order. The AO has imposed the penalty u/s 271AAA for two reasons i.e. the appellant has filed the original return u/s 139(1) on 07.03.2009 showing income of ₹ 25,57,180/- and thereafter return was filed in response to notice u/s 153A on 24.05.2010 declaring income of ₹ 1,61,55,650/- including undisclosed income of ₹ 1,25,00,OOO/-. The AO was of Of the view that since both the returns were filed after the date of search, it is a clear case which attracts penalty provisions u/s 271AAA and that, the case is not covered by the benefit as envisaged under sub-section (2) of section 271AAA. Secondly, the AO was also of the opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he opinion 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 penalty u/s 271AAA is leviable @ 10% of undisclosed income of the specified previous year. For the purpose of section 271AAA the meaning of the undisclosed income has also been provided in Explanation (a) which reads as under: (a) undisclosed income means - (i) any income of the specified previous year represented, either wholly or partly, by any money, bullion, jewellery or other valuable article or thing or any entry in the book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated that since the amount of undisclosed income was not declared by the appellant in the return filed u/s 139(1) after the search, therefore, he would not be entitled for benefit as envisaged in sub-section (2) of section 271AAA. However, I am of the opinion that the view taken by the AO is not correct because as per the provisions to avail the benefit of sub-section (2) of section 271AAA, it is not necessary that the amount of undisclosed income should have been shown in the return filed u/s 139(1). The appellant declared the undisclosed income in the return filed u/s 153A and paid the tax along with interest. The provision of sub-section (1) of section 271AAA is not applicable if the conditions of sub-section (2) of section 271AAA are satisfied. On going through the facts of the case and as above, I am of the opinion that in the case of appellant the conditions of sub-section(2) of section 271AAA are satisfied. The 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 submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
