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TMI Blog2018 (2) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of the case and in law, the Ld. CIT(A) was not justified in deleting the penalty under section 271AAA and not initiating penalty under section 271(1)(c) where the intention for initiating penalty by the AO was for concealment. 2) On the facts and the circumstances of the case and in law, the Ld. CIT(A) failed to exercise his coterminous powers with the AO and initiate the correct penalty and levy the same or give directions accordingly. 3) The order of the Ld. CIT(A) may be vacated and the Assessing Officer be restored. 4. The issue raised in the present appeal is against order of CIT(A) in deleting penalty levied under section 271AAA of the Act. Revenue is aggrieved by the order of CIT(A) in deleting the penalty and also for not initiating penalty under section 271(1)(c) of the Act on the ground that intention for initiating penalty by the Assessing Officer was for concealment of income. 5. Briefly, in the facts of the case, the assessee for the year under consideration had furnished the return of income declaring total income of Rs.1,83,83,761/-. Search action under section 132 of the Act was carried out in the case of Shri Ramchandra Maruti Mohite on 25.08.2011. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e definition of 'specified previous year' under Explanation clause (b) to section 271AAA of the Act. He fairly pointed out that this was new legal plea raised by the assessee and he also pointed out that the CIT(A) had deleted penalty on the ground that the additions made in the hands of assessee have been deleted. 9. The learned Departmental Representative for the Revenue first placed reliance on the order of Assessing Officer. He stressed that where the powers of CIT(A) were coterminous with the powers of Assessing Officer, then he could have in alternate impose penalty under section 271(1)(c) of the Act. 10. We have heard the rival contentions and perused the record. The limited issue which has been raised in this bunch of appeals is against levy of penalty under section 271AAA of the Act. The learned Authorized Representative for the assessee has raised a legal plea in support of the order passed by the CIT(A) deleting penalty levied under section 271AAA of the Act. The case of assessee before us is that under Income-tax (Appellate Tribunal) Rules, 1963 (in short 'Rules'), the assessee is at liberty to support the order of CIT(A) on a ground which is purely legal but which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse relating to the specified previous year which is found to be false and would not have been found to be so had the search not been conducted; (b ) "specified previous year" means the previous year- (i) which has ended before the date of search, but the date of filing the return of income under sub-section (1) of section 139 for such year has not expired before the date of search and the assessee has not furnished the return of income for the previous year before the said date; or (ii) in which search was conducted." 12. Analysing the above said provisions of section 271AAA of the Act, it provides empowerment to the Assessing Officer to impose penalty in addition to tax, if any, payable by the assessee which would be equivalent to sum computed @ 10% of "undisclosed income" of the "specified previous year". Hence, the said penalty is leviable in cases where search had been initiated under section 132 of the Act on or after 1st day of June, 2007 but before 1st July, 2012. Search in the case of assessee was carried out on 25.08.2011, hence it was within range provided in section. Sub-section (2) to section 271AAA of the Act provides certain conditions to be fulfilled, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said date. Hence, we hold that penalty under section 271AAA of the Act can be levied only for the 'specified previous year' which is clearly defined by Explanation (b) to section and is limited to the said assessment years only. 13. Now, coming to the facts of the present case, search on the premises of assessee was carried out on 25.08.2011 and hence, the year of search is assessment year 2012-13. The years which are in appeal before us are relate to assessment years 2006-07 to 2010-11. Admittedly, none of the assessment years are the years of search. Secondly, the second condition of the due date for filing the return of income having not expired under section 139(1) of the Act is not applicable to assessment years 2006-07 to 2010-11 where the assessee was due to file the return of income us 139(1) of the Act much before the date of search. The assessee claims that it had furnished the said returns of income for the respective years before the date of search and the time limit prescribed under section 139(1) of the Act had already expired. In such circumstances and in view of the clear-cut provisions of the Act, we hold that where the assessee though during the course of search ..... X X X X Extracts X X X X X X X X Extracts X X X X
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