TMI Blog2016 (9) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... . - Decided against assessee. - I.T.A. No.305/Nag/2015. - - - Dated:- 22-9-2016 - Shri Shamim Yahya, Accountant Member. (S.M.C.) Appellant by : Shri Mukesh Agrawal.. Respondent by : Smt. Agnes P. Thomas. ORDER This appeal by the assessee is directed against the order of learned CIT(Appeals)-III, Nagpur dated 13-10-2015 and pertains to assessment year 2008-09. The ground of appeal reads as under : That on the facts and in the circumstances of the case the learned CIT Appeals erred in confirming penalty of R.2,66,700/- levied by AO u/s 271AAA of I.T. Act. The levy of penalty is unjustified, arbitrary and deserves to be deleted. 2. The assessee in this case is an individual earning salary. During the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the assessee s submission, it is seen that the assessee has neither disclosed the manner in which the undisclosed income of ₹ 26,67,000/- was earned nor substantiate such manner. The assessee is an individual and the and manner of earning the undisclosed income can not be ascertained unless the assessee specifically reveals that before the AO. In the return filed by the assessee, the undisclosed income of ₹ 26,67,000/- has simply been shown as other sources . Therefore, there was no way the AO could have deciphered the manner of earning the undisclosed income of the assessee. Accordingly, the penalty levied of ₹ 2,66,700/- by the AO is held to be in order. The order of the AO is confirmed. In the result, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Nandini Realtors Pvt. Ltd. in ITA No. 415/Nag/2015 vide order dated 6th May, 2916 where similar penalty u/s 271AAA was deleted by the Tribunal. 6. I have carefully considered the submissions and perused the records. I may gainfully refer to the provisions of section 271AAA as under : Section 271AAA of Income-Tax Act, 1961 deals with Penalty where search has been initiated (1) The Assessing Officer may, notwithstanding anything contained in any other provisions of this Act, direct that, in a case where search has been initiated under section 132 on or after the 1st day of June, 2007, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r represented, either wholly or partly, by any entry in respect of an expense recorded in the books of account or other documents maintained in the normal course 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; o (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.] 7. I may also refer to provisions of section 273B which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me has been derived and further there is no substantiation of the manner in which the undisclosed income was derived. 9. The case laws from the Hon ble Gujarat and Allahabad High Court were not in the context of section 271AAA penalty. Hence they do not support the case of the assessee. The other case laws referred from Tribunal are on different set of facts. 10. In the case law of Concrete Developers vs. ACIT of Nagpur Bench cited above, the search and seizure operations were carried out at business premises of the assessee who was engaged in the business. In the present appeal before the ITAT the assessee is an individual and earning only salary income. Further more in the said decision the Tribunal has noted the assessee s statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was on the basis of entries contained in the work in progress sheet seized during the course of search. So admittedly the income in this case was related to the business while in the present case the assessee is having only salary income and no source whatsoever has been stated leave alone the manner and substantiating of the same. In the case of Nandini Realtors Pvt. Ltd. of Nagpur ITAT (supra), the Tribunal has noted that the income offered was duly disclosed in the books of accounts of the assessee and the manner in which the investment was made has also been duly incorporated. Hence this case is different from that of the present assessee. 11. Accordingly in my considered opinion the case laws referred by the learned counsel of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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