TMI Blog2019 (8) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... r satisfaction of the conditions envisaged in clause (i) and clause (ii) of sub-section (2) of Sec.271AAA is concerned. Even in the return of income filed by the assessee the undisclosed income of ₹ 1 crore that was declared by him in his statement recorded u/s 132(4) had been merely put under the head business income , which also does neither specify nor substantiates the manner in which the undisclosed income that was declared in his statement recorded under Sec.132(4) , was derived by him. Accordingly assessee had failed to both specify and substantiate the manner in which the undisclosed income of ₹ 1 crore declared in his statement recorded u/s 132(4) was derived by him, therefore, the CIT(A) vide his order dated 16.10.2017 had rightly upheld the penalty u/s 271AAA - Decided against assessee. - ITA No. 663/Mum/2018 - - - Dated:- 7-8-2019 - Shri Ravish Sood, Judicial Member And Shri N.K. Pradhan, Accountant Member For the Appellant : Ms. H iral D. Sejpal, A.R For the Respondent : Shri Rajesh Ojha, D.R ORDER PER RAVISH SOOD, JM The present appeal filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved, the assessee carried the matter in appeal before the CIT(A). The CIT(A) vide his order, dated 29.06.2011 was persuaded to accept the claim of the assessee and deleted the penalty imposed by the A.O under Sec. 271AAA. 5. The revenue being aggrieved with the order of the CIT(A) carried the matter in appeal before the Tribunal. The Tribunal vide its order passed in the case of the assessee i.e DCIT, Central Circle-39, Mumbai Vs. Shri Ramesh K. Makrani (ITA No.5907/Mum/2012, dated 23.09.2015) did not find favour with the view taken by the CIT(A) that as no specific question about the manner in which the undisclosed income was derived by the assessee was asked at the time of recording of his statement under Sec.132(4), therefore, no penalty under Sec. 271AAA could have been imposed. In fact, the Tribunal held a conviction that the view taken by the CIT(A) clearly militated against the provisions of Sec. 271AAA. It was observed by the Tribunal, that the initial burden to show that all the three conditions prescribed in Sec. 271AAA(2) were complied with was cast upon the assessee. Accordingly, it was observed by the Tribunal that the assessee remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Tribunal while restoring the matter to the file of the CIT(A), vide its order passed in ITA No.5907/Mum/2012, dated 23.09.2015 (copy placed on record). It was submitted by the ld. A.R that as directed by the Tribunal the assessee had submitted the requisite explanation as regards the source of the undisclosed income that was declared by him in his statement recorded under Sec.132(4). It was averred by the ld. A.R that despite the fact that the assessee had duly complied with directions of the Tribunal and satisfied the conditions contemplated in sub-section (2) of Sec.271AAA, the CIT(A) had erred in upholding the penalty imposed on the assessee under the said statutory provision. 8. Per contra, the ld. Departmental Representative (for short D.R ) relied on the orders of the lower authorities. It was submitted by the ld. D.R that the assessee had failed to substantiate the manner in which the undisclosed income was derived in the course of the statement recorded under Sec.132(4). It was submitted by the ld. D.R, that despite the fact that the Tribunal had in all fairness restored the matter to the file of the CIT(A) and afforded another opportunity to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the view taken by the CIT(A). It was noticed by the Tribunal that the burden to show that all the three conditions provided in sub-section (2) of Sec.271AAA were duly complied with was cast upon the assessee. At the same time, the Tribunal taking cognizance of the fact that no specific question about the manner in which the undisclosed income was derived was asked from the assessee in the course of recording of his statement under Sec. 132(4), had thus in all fairness acceded to his request and had restored the matter to the file of the CIT(A), with a direction to afford an opportunity to him to explain his case. We may herein observe that the Tribunal while restoring the matter to the file of the CIT(A) had categorically recorded certain material aspects viz. (i) that, the initial burden to show that all the three conditions prescribed in Sec. 271AAA(2) are complied with is placed upon the assessee; (ii) that, the assessee should disclose the manner in which the undisclosed income declared in the statement recorded u/s 132(4) was derived; (iii) that, the head under which the undisclosed income was disclosed by the assessee in his return of income would show the manner in which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um and substance, the matter had been restored to the file of the CIT(A) for affording an opportunity to the assessee to specify and substantiate the manner in which the undisclosed income which was declared in his statement recorded under Sec.132(4), was derived by him. We find that despite having been afforded another opportunity, the assessee had failed to substantiate the manner in which the undisclosed income of ₹ 1 crore that was declared in his statement recorded under Sec.132(4), was derived by him. In fact, the assessee in the course of the set aside proceedings had chosen to sit tight lipped and not divulge the manner in which the undisclosed income of ₹ 1 crore that was declared in his statement recorded under Sec. 132(4), was derived by him. As is discernible from the order of the CIT(A), the assessee had merely stated before him that as he was mainly dealing in land, therefore, the cash balance available with him was generated from various purchase and sale transactions in land conducted by him. Apart there from, a similar claim also finds mentioned in the affidavit , dated 22.01.2015 that was filed by the assessee before the CIT(A). We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We are afraid that the general statement of the assessee that as he was mainly dealing in land, therefore, the cash balance available with him was generated due to various purchase and sale transactions can by no means be comprehended to have satisfied the aforesaid statutory requirement contemplated in sub-section (2) of Sec. 271AAA. Accordingly, the affidavit , dated 22.01.2015 filed by the assessee merely making a mention of the aforesaid facts would also not come to the rescue of the assessee insofar satisfaction of the conditions envisaged in clause (i) and clause (ii) of sub-section (2) of Sec.271AAA is concerned. Apart there from, we find that even in the return of income filed by the assessee the undisclosed income of ₹ 1 crore that was declared by him in his statement recorded under Sec. 132(4) had been merely put under the head business income , which also does neither specify nor substantiates the manner in which the undisclosed income that was declared in his statement recorded under Sec.132(4) of the Act, was derived by him. Accordingly, in terms of our aforesaid observations, we are of the considered view that as the assessee had failed to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
