TMI Blog2016 (11) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... be dealt with under section 271(1)(c) by any stretch of imagination even. So, we are of the considered view that the very initiation of the penalty proceedings against the assessee under section 271(1)(c) are vitiated in view of the amended provisions of law applicable effective from June 1, 2007, till July 1, 2012, as the additional income to the tune of ₹ 36,80,520 was disclosed by the assessee on the basis of the search operation conducted on February 10, 2009. So, without going into the merits of the case, we are of the considered view that the initiation of penalty proceedings as well as the penalty orders and the impugned order passed by the learned Commissioner of Income-tax (Appeals) are not sustainable in the eyes of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the penalty of ₹ 12,24,600 when the returned income and the assessed income are the same and no additions have been made by the Assessing Officer in the assessment order. 4. That the Commissioner of Income-tax (Appeals) has, in view of the facts and in the circumstances of the case, erred on facts and in law in upholding the invocation of Explanation 5A to section271(1)(c) of the Income-tax Act, 1961. 5. That the Commissioner of Income-tax (Appeals) has erred on facts and in law in dismissing the appeal of the assessee and the Commissioner of Income-tax (Appeals) has failed to adjudicate the matter in a judicious manner. 6. That the evidence and submissions filed and materials available on record have not been prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the light of Explanation 5A to section 271(1)(c) effective from June 1, 2007. The assessee found to have not declared the income from the trading business amounting to ₹ 36,02,828 in the original return of income which he has declared in response to the notice under section 153A of the Act on the basis of the seized documents in which numerous unaccounted cash transactions were found. The assessee chose to file the income and expenditure account of such transactions describing the total income from trading business quantifying the share of each individual. So, had the search not been conducted, additional income shown by the assessee in respect of the trading business could not have been disclosed. No condition mooted out by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty has been initiated, vide notice under section 274 dated December 31, 2010, without any specific charge, hence, the notice and the order passed under section 271(1)(c) are illegal, bad in law and without jurisdiction. 6. Keeping in view the settled principle of law that the additional evidence if necessary for the complete adjudication of the controversy in hand cannot be disallowed on hyper technical ground and since the additional grounds raised by the assessee are legal in nature and necessary for the complete adjudication of the controversy at hand, the present application is allowed and the assessee is allowed to incorporate the additional grounds. 7. We have heard the learned authorised representatives of the parties t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re search has been initiated under section 132 on or after the 1st day of June, 2007, but before the 1st day of July, 2012, 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 per cent. of the undisclosed income of the specified previous year. (2) Nothing contained in sub-section (1) shall apply if the asses see,- (i) in the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived ; (ii) substantiates the manner in which the undisclosed income was derived ; and (iii) pays the tax, together with interest, if any, in respect of the undisclosed income. (3) No penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 271AAA(1) and not under section 271(1)(c) as has categorically been provided in sub-section (3) of section 271AAA. The intention of the Legislature in incorporating the provisions contained under section 271AAA effective during the period June 1, 2007, to July 1, 2012, is to provide general amnesty in search and seizure cases, and the case of the assessee undisputedly falls under section 271AAA and cannot be dealt with under section 271(1)(c) by any stretch of imagination even. 14. So, we are of the considered view that the very initiation of the penalty proceedings against the assessee under section 271(1)(c) are vitiated in view of the amended provisions of law applicable effective from June 1, 2007, till July 1, 2012, as the additi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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