TMI Blog2016 (9) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... ction( 1) of sec. 271AAA of the Act. In the case before us, admittedly, the search was conducted on 29.9.2008, therefore, penalty, if any, has to be levied only u/s 271AAA of the Act and definitely not u/s 271(1)(c) of the Act. Therefore, this Tribunal is of the considered opinion that the CIT(A) has rightly deleted the penalty levied by the Assessing Officer. Levy of penalty u/s 271(1)(c) - Held that:- This Tribunal is of the considered opinion that mere addition in the assessment order cannot be reason for levy of penalty u/s 271(1)(c) of the Act. The Assessing Officer has to reappreciate the material available on record and find out whether there was any concealment of income. In the case before us, both the lower authorities have not reappreciated the material available on record. Merely because the assessee offered the amount as income, they have levied/confirmed penalty u/s 271(1)(c) of the Act. The fact remains that the search was conducted in the case of Shri A.N. Radhakrishnan on 29.9.2008. Therefore, penalty, if any, has to be levied u/s 271AAA of the Act and definitely not u/s 271(1)(c) of the Act. Sub-section(3) of sec. 271AAA of the Act in categorical terms declares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... band to the extent of ₹ 4 lakhs. Even though the advance was received by the assessee s daughter and gift was from assessee s husband, the same was offered for taxation. According to the ld. Counsel, the advance lease amount cannot be construed as income of the assessee during the year under consideration. Moreover, the gift received from her husband has to be taxed in the hands of the assessee s husband. Therefore, there cannot be any levy of penalty u/s 271(1)(c) of the Act. Hence, the CIT(A) has rightly deleted the penalty levied by the Assessing Officer. Referring to the order of the CIT(A), the ld. Counsel submitted that the income offered by the assessee was accepted by the Assessing Officer without any further addition. Merely because certain inference has been made in the assessment proceedings, there cannot be any reason to levy penalty automatically. Referring to sec. 271(1)(c) of the Act, the ld. Counsel submitted that unless there is a concealment of income, there cannot be any levy of penalty u/s 271(1)(c) of the Act. In the present case, there was no concealment of income, therefore, the CIT(A) has rightly deleted the penalty levied by the Assessing Officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act in respect of the undisclosed income referred to in sub-section(1) of sec. 271AAA of the Act. In the case before us, the penalty levied by the Assessing Officer squarely falls u/s 271AAA of the Act. Therefore, there cannot be any levy of penalty u/s 271(1)(c) of the Act in view of section 271AAA(3) of the Act. Therefore, this Tribunal is of the considered opinion that the CIT(A) has rightly deleted the penalty levied by the Assessing Officer. Accordingly, the same is confirmed. 7. Now coming to assessment year 2006-07 in I.T.A.No. 649/Mds/2013, Shri Sahadevan, ld. DR submitted that consequent to the search operation in the case of Shri A.N. Radhakrishnan, on 29.9.2008, the Assessing Officer issued notice u/s 153C of the Act to the assessee. The assessee declared an income of ₹ 8,49,855/-. Moreover, by way of letters dated 24.12.2010 and 28.12.2010, the assessee has also offered additional sum of ₹ 1,05,88,900/-. Since ₹ 1,05,88,900/- was not offered in the original return, according to the ld. DR, there was a concealment of income,. Therefore, the CIT(A) is not justified in deleting the penalty levied by the Assessing Officer u/s 271(1)(c) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Assessing Officer. 10. Now coming to assessment year 2007-08, the assessee filed the appeal against the order of the CIT(A) confirming penalty levied by the Assessing Officer u/s 271(1)(c) of the Act. 11. Shri S. Sridhar, ld. Counsel for the assessee submitted that there was a search in the case of Shri A.N. Radhakrishnan, husband of the assessee, on 29.9.2008. Consequently, notice u/s 153C of the Act was issued. The assessee has declared taxable income of ₹ 8,01,979/-. In fact, the assessment proceedings was completed u/s 153C of the Act on 31.12.2010. During the course of assessment proceedings, the assessee has also offered a sum of ₹ 40,50,000/- being the advance lease rental received from Smt. U. Anitha. According to the ld. Counsel, the advance received by the assessee cannot be taken as income of the assessee during the year under consideration. Even though there was an addition that cannot automatically result in levy of penalty u/s 271(1)(c) of the Act. Referring to the order of the CIT(A), the ld. Counsel submitted that the CIT(A) confirmed the penalty un 271(1)(c) of the Act mainly based upon the statement recorded u/s 131(1) of the Act. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The fact remains that the search was conducted in the case of Shri A.N. Radhakrishnan on 29.9.2008. Therefore, penalty, if any, has to be levied u/s 271AAA of the Act and definitely not u/s 271(1)(c) of the Act. Sub-section(3) of sec. 271AAA of the Act in categorical terms declares that no penalty can be levied u/s 271(1)(c) of the Act when the income falls u/s 271AAA(1) of the Act. In the case before us, it is not in dispute that the income falls u/s 271AAA(1) of the Act. Therefore, no penalty can be levied u/s 271(1)(c) of the Act. In view of the above, we are unable to uphold the orders of the authorities below. Accordingly, the orders of the lower authorities are set asie and the penalty levied by the Assessing Officer u/s 271(1)(c) of the Act is deleted. 14. Now coming to assessment year 2008-09, both the assessee and Revenue filed appeals. 15. Shri Sahadevan, ld. DR submitted that the Assessing Officer levied penalty u/s 271(1)(c) of the Act in respect of the income offered by the assessee. According to the ld. DR, the assessee has offered a sum of ₹ 86 lakhs by way of letter dated 24.12.2010 and 28.12.2010 claimed that it was lease advance received by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1)(c) of the Act in respect of the income offered by the assessee to the extent of ₹ 86 lakhs. Therefore, the assessee filed the appeal in respect of penalty confirmed by the CIT(A) to the extent of ₹ 14 lakhs and ₹ 80 lakhs being the investments made in KK Nagar property and Thalakanchery property. 17. We have considered the rival submissions on either side and also perused the material available on record. The assessment was completed u/s 153C of the Act consequent to the search conduced in the case of Shri A.N. Radhakrishnan on 29.9.2008. Initially, the assessee filed the return declaring income ₹ 8,93,951/-. The assessee has also filed a revised return declaring additional income of ₹ 86 lakhs said to be received from lease advance by her daughter and also investment made in KK Nagar and Thalakanchery property to the extent of ₹ 94 lakhs. The disclosure made by the assessee was in fact accepted by the Assessing Officer. Since the income was not disclosed in the return, the Assessing Officer found that there was concealment of income. However, on appeal by the assessee, the CIT(A) accepted the claim of the assessee to the extent of income d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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