TMI Blog2016 (8) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... ax payable by the assessee on the disclosed income. It is a settled proposition of law that a person cannot be forced to do impossibility. Since the assessee was not having liquid funds to pay the taxes, he had no other option, but to encash the securities. Accordingly, he has requested the AO. In our view, the request so made by the assessee and subsequent encashment of the securities satisfies the conditions prescribed in sec. 271AAA of the Act for payment of tax. Accordingly, we modify the order of Ld CIT(A) and hold that the assessees have satisfied the condition relating to payment of tax also. Accordingly we direct the AO to delete the penalty levied u/s 271AAA of the Act in both the cases under consideration. - Decided against revenue. - I.T.A. No. 488/Mum/2014, I.T.A. No. 1528/Mum/2014, I.T.A. No. 1529/Mum/2014, I.T.A. No. 2581/Mum/2014 - - - Dated:- 25-5-2016 - Shri B.R. Baskaran (AM) And Amarjit Singh (JM) Assessee by Shri Neelkanth Khandelwal Department by Shri Manjunatha Swamy Shri A.K. Nayak Mr. Samson Peerinchery Mrs. Piedade Perinchery ORDER Per B. R. Baskaran, AM All these appeals were heard together and hence they are being disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer has made addition of ₹ 67,46,251/-, the details and basis of which are shown below :- Unaccounted income admitted : At Mumbai ₹ 5,46,77,257 ] At Goa ₹ 1,73,50,502 ] Ans to Q. 17 on page 3 of the assessment order Total ₹ 7,20,27,759 ] Given to the Chartered Accountant for payment of taxes Cheque ₹ 13,00,000 ] Cash ₹ 16,00,000 ] Ans to Q. No. 18 on page 4 of the assessment order Total ₹ 29,00,000 ] Cash found At Mumbai ₹ 4,20,000 ] At Goa ₹ 2,38,000 ] Ans to Q. No. 19 on page No. 4 of the assessment order Total ₹ 6,58,000 ] Total disclosure (from above) ₹ 7,55,85,759 (A) Additional amounts declared Mr Samson Perinchery ₹ 4,38,49,706 Mrs. Piedade Perinchery ₹ 2,49,89,820 (wife of the appellant) ₹ 6,88,39,526 (B) Addition made by the Assessing Officer ₹ 67,46,233 (A-B) It is reiterated by the appellant that return of income was filed pursuant to notice under s. 153A is not over and above the return of income filed under s. 139(1). It is emphasized that the return filed in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to tax in the returns as fired under s. 139(1). The A.0 had rejected the contention stating that nowhere in the statement recorded under s.132(4), such a claim had been made. In this context, I have carefully gone through the statement recorded from the appellant under s.132(4) of the Act on 18.12.2008, a copy of which is placed on record. It is seen from the said statement that in response to Question 20, the appellant had declared as under:- Q.No.20 As you have not shown these bank accounts in your return of income for A.Y 2007-08, why the above two assets of ₹ 29,00,000/, and ₹ 6,58,000/- (as per question no. 18 19) should not be considered as your undisclosed income. Ans : I had already accepted our investments in NSC/KVPs/ F.Ds/Mutual Funds of ₹ 7,20,27.777/- as income of me and my wife and I also accept Money of ₹ 29,00,000/- given to Mr. Prabhat L. Singh as my asset and R. 6,58,000/- found in cash as also my asset. I am agreeing to pay the tax for the source of all these assets which is cash deposits in my various bank accounts, in various names of my family members according to year of deposit. However, I want to request your that se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclose the sources thereof. For computing the source, one is required to take into consideration both declared and undisclosed income. Hence, there is merit in the contentions of the assessee that the aggregate income disclosed in returns filed u/s 153A of the Act (income returned u/s 139(1) plus additional income declared) should be compared with the aggregate amount of investments found during the course of search. Even if we assume for a moment that the assessee has not explained the sources of investments, the AO is required to give credit for the income already declared by the assessee in the returns of income filed for various years for the purpose of arriving at undisclosed investment. A perusal of the assessment order would show that this addition has been made by the AO with the description Unaccounted investment , meaning thereby the AO has also understood that the investment in which sources have been explained should not be added. Since the quantum found at the time of search relate to investments, what is required to be assessed is only those part of investments, sources of which could not be explained to the satisfaction of the AO. Further the Ld CIT(A) has found out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een satisfied. With regard to the payment of taxes, the assessee had requested the AO to encash Kisan Vikas Patras and the same was not found to be sufficient by the tax authorities to comply with the conditions specified in sec. 271AAA of the Act. Accordingly, the Ld CIT(A) confirmed the penalty levied u/s 271AAA of the Act. Thus the Ld CIT(A) has held that the assessee has not satisfied one condition, meaning thereby, there is no dispute that the assessees have satisfied other two conditions. In the case of Mrs. Peidade Perinchery, the Ld CIT(A) dismissed the appeal for non-appearance. 9. We have heard the parties on this issue. Since the penalty u/s 271AAA has been levied on identical set of facts in both the cases, we prefer to dispose both the appeals instead of sending the appeal of Mrs. Peidade Perinchery to the file of the Ld CIT(A). According to the Ld CIT(A), these assesses have not satisfied the conditions specified in sec. 271AAA with regard to the payment of taxes, i.e, the above said section specifies that the assessee should pay the tax together with interest, if any, in respect of undisclosed income. The facts of the case would show that the undisclosed income de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
