TMI Blog2019 (8) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... ention to various decisions of the ITAT holding that penalty u/s 271AAB is not automatic and there has to be undisclosed income as defined under the section for the levy of penalty. We therefore consider it fit to restore the issue back to the Ld.CIT(A) to adjudicate the matter afresh in accordance with law ,after considering all the submissions of the assessee. CIT(A) is directed to pass a speaking order, after considering all necessary facts relevant to the issue, i.e. the surrender letter of the assessee ,the statement recorded during search u/s 132(4) making the surrender and any other relevant material/facts, for deciding the issue. Needless to add the assessee be granted proper opportunity of hearing. Appeal of the assessee is ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed income amounting to ₹ 10,00,000/- u/s 132(4) of I.T. Act, 1961. Consequently penalty proceedings u/s 271AAB were initiated on 31.03.2016 and a show cause notice u/s 274 r.w.s. 271AAB of I.T.Act,1961 was issued to the assessee as to why penalty u/s 271AAB of the Act , be not imposed on the same. In response the assessee filed reply stating that during the course of search, the assessee had offered an additional income of ₹ 10 Lacs on account of business transactions which were not recorded in the regular books of accounts. The assessee had further stated that this additional income was offered on the grounds that no penalty would be imposed. The reply of the assessee was considered but not found tenable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no undisclosed income of the assessee, as defined in section 271AAB of the Act, for the purpose of levy of penalty. The Ld.Counsel for the assessee pointed out that even before the Ld.CIT(A) the assessee had vehemently argued that penalty u/s 271AAB was not automatic and that there had to be undisclosed income found, as defined in the section, for the levy of penalty. Our attention was drawn to the submissions made before the Ld.CIT(A) reproduced at para 4.1 of the order. Drawing our attention to the same it was pointed out that the assessee had relied upon the decision of the Kolkatta Bench of the ITAT in the case of SSP Steel and Power Limited vs CCIT 171 TTJ 749 in support of its aforesaid contention. Ld.Counsel for the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and penalty, therefore, had been rightly levied. The Ld. DR further rebutted the contention of the Ld.Counsel for the assessee that the penalty be levied @ 10% as against 30% levied in the present case, pointing out that the assessee had failed to pay taxes on its surrender income on account of which as per the provisions of sub-clause (c) of sub section (1) of section 271AAB of the Act, the assessee was liable to pay penalty @ 30% only. 8. To this, the Ld.Counsel for the assessee countered by stating that during search the assets owned by the assessee had been seized and it was virtually left with no money to pay tax and further that it had pleaded with the Department to release its assets so as to facilitate paym ..... X X X X Extracts X X X X X X X X Extracts X X X X
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