TMI Blog2018 (2) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 271AA of the Act. Accordingly, we cancel the levy of penalty - Decided in favour of assessee. - ITA No.685/Kol/2015 - - - Dated:- 14-2-2018 - Shri N.V.Vasudevan, Judicial Member And Shri Waseem Ahmed, Accountant Member For The Appellant : Shri A.K. Tulsyan, FCA For The Respondent : Shri A.K. Tiwari, CIT-DR ORDER PER Waseem Ahmed, Accountant Member:- This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-21, Kolkata dated 20.03.2015 confirming the levy of penalty u/s. 271AAA of the Income Tax Act, 1961 (hereinafter referred to as the Act ) for Assessment Year 2011-12. Shri A. K. Tulsyan, Ld. Authorized Representative appeared on behalf of assessee and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t) 10-11 23,307 Total 10,00,000 The Assessing Officer framed the assessment u/s. 143(3) at the income disclosed by assessee including the income declared u/s 132(4) of the Act in his return of income. However AO initiated the penalty proceedings u/s. 271AAA of the Act on account of income disclosed u/s. 132(4) of the Act. Subsequently, AO issued notice u/s 271AAA of the Act for levying the penalty. In this regard, assessee submitted that it has earned undisclosed income from share and commodity dealing business activities. The impugned income was duly disclosed in the income tax return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant the search operation u/s. 132 of the Act was conducted on 27.01.2011 and by the time neither the relevant previous year has ended nor the due date of filing the return of income was lapsed. There is no dispute on the fact that the appellant had accepted thee additional income of ₹ 10 lakhs in the course of search in the statement recorded u/s. 132(4) of the Act. Further, the appellant has filed his return of income for the e AY 2011-12 u/s 139(1) of the Act on 14.07.2011 declaring total income of ₹ 46,67,859/- which includes the additional income of ₹ 10 lakhs admitted by him u/s. 1321(4) of the Act. As per the return of income the appellant has worked out the total tax liability on the returned income at ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that were made before Ld. CIT(A) whereas Ld. DR vehemently relied on the order of Authorities Below. 6. We have heard the rival contentions of both the parties and perused the material available on record and perused the cited case law. In the instant case, the income was disclosed by assessee in his statement u/s 132(4) of the Act. The income disclosed by assessee was duly accepted by the AO while framing assessment proceedings u/s. 143(3) of the Act. However, the AO has levied the penalty u/s 271AAA of the Act for ₹ 1 lakh which was subsequently confirmed by Ld. CIT(A). The assessee can claim immunity from the penalty levied u/s. 271AAA of the Act in certain circumstances which reads as under:- [ Penalty where search has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enied the immunity under section 271AAA(2) only because entire tax, along with interest, was not paid before filing of income-tax return or, for that purpose, before concluding the assessment proceedings. Similarly, the Hon'ble ITAT Cuttack Bench in the case of Pramod Kumar Jain vs. DCIT reported 149 TTJ 36 (CTK) has held as under : Held that no definition could be given to the 'specified manner' insofar as the very statement on oath under section 132(4) specifies the manner on which the assessee is prepared to pay tax thereon. The inscribing in the books of account was taken care of by the assessee when he filed the returns in pursuance of notice under section 153A accounting the assets. Therefore, the penalty is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is because no prescribed method to find the manner in such income was generated has been prescribed under the statute. Therefore, respectfully following the same, we hold that the penalty levied by AO and upheld by Ld. CIT(A) is not sustainable. In view of these facts and circumstances of the case and in view of various case laws discussed above, we are of the view that the penalty u/s 271AAA of the Act is not leviable on the facts of the present case as the assessee s case falls under the sub-clause (2) of Section 271AA of the Act. Accordingly, we cancel the levy of penalty. We order accordingly. 7. In the result, assessee s appeal stands allowed. Order pronounced in the open court 14/02/2018 - - TaxTMI - TMITax - Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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