9911796707
TMI Blog2019 (3) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed under section 271AAA of the Income Tax Act, 1961. 3. Brief facts of the case are that a search was conducted at the premises of the assessee on 20.12.2011. The assessee has filed return of income electronically on 30.9.2012 declaring total income at Rs. 4,30,37,740/-. He included a sum of Rs. 3,80,00,000/- which according to him is part of Rs. 10.13 crores admitted at the time of search by Shri Sunil P. Sewani in his statement recorded under section 132(4). The case of the assessee is that a sum of Rs. 3.80 crores was allocated towards the assessee by Shri Sunil P. Sewani and it was admitted by the assessee also. Bifurcation of Rs. 10.13 crores has been given in the assessment order. The ld.AO accepted the return filed by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT in the case of Swapna Enterprises (supra). The discussion made by the Tribunal reads as under: "5. We have duly considered rival contentions and gone through the record. For appreciating the controversy involved, it is incumbent upon us to take note of section 271AAA. The relevant part of this section reads as under: "271AAA. 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 income o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration facts and circumstances, we are of the view that the ld.CIT(A) has rightly deleted the penalty, and accordingly, we dismiss the appeal of the Revenue." 6. In the light of the above, let us examine facts of the present case. The ld.counsel for the assessee drew our attention towards statement of Shri Sunil P. Sewani dated 21.12.2011 recorded under section 132(4) of the Act. Shri Sunil Sewani was confronted with Annexure A/1 containing 53 pages. In reply to question no.4, he admitted undisclosed income of Rs. 13 crores on his behalf and other family members and different companies. There is no dispute with regard to the disclosure made at Rs. 13 crores. His statement was again recorded on 20.4.2012 under section 131 of the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Year Amount Sunil P. Sewani Prop. of Sewani Construction 2011-12 70000000 Shri Prahaladbhai K. Sewani, Prop. Prahaladbhai Kishanchand & Co. 2011-12 31300000 Smt. Bhartiben Sewani 2010-11 9200000 Smt. Kiranben S. Sewani 2010-11 9200000 Out of Jewellery found from residence 2011-12 4800000 Out of cash found from residence 2011-12 426000 Misc. disclosure 2011-12 5074000 Total 13,00,00,000 The source of the cash paid for investment in land is income earned from various business activities during the F.Y. 2011-12. The purpose for making the payments was advance paid for reserving land. The address of the persons to whom cash was paid is riot known to me as the cash was paid to representatives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial would indicate that to the extent of Rs. 3.13 crores income was declared during the course of search by Shri Sunil P. Sewani on behalf of the assessee. This has been returned by the assessee. However, with regard to the remaining part i.e. Rs. 54.50 lakhs on account of jewellery and Rs. 12.50 lakhs on account of other discprenacy admitted in the return, there is no corresponding declaration at the time of search. Thus, qua this amount, immunity available under sub-clause (2) of section 271AAA is not available. The ld.CIT(A) has erred in deleting penalty qua this undisclosed income. Therefore, we partly allow the appeal of the Revenue and restore penalty qua addition of Rs. 54.50 lakhs and Rs. 12.50 lakhs. In other words, there will not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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