TMI Blog2018 (11) TMI 1721X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions envisaged in sec. 271AAB cannot be initiated against the assessee. A perusal of the heading to the provision of sec. 271AAB reads as penalty where search has been initiated and on further perusal of the provision of section 271AAB it reveals about the assessee s disclosure by statement u/s. 132(4) about any undisclosed income in the course of search. Admittedly, in the present case, there has been no search u/s. 132 of the Act. Search happened in the case of Ghanshyam Misra Group of cases on 16.10.2012 and admittedly there was survey proceeding u/s. 133A on 16.10.2012 against the assessee company. We note that the AO has not initiated any 153A proceeding pursuant to the search and in case if the assessee had been search u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the I. T. Rules, 1962 and the Cross Objection of the assessee is that of the AO ought not to have levied penalty u/s. 271AAB of the Act since no search was initiated in the case of the assessee company u/s. 132 of the Act. 3. We not that the assessee has raised the legal issue in its Cross Objection so we are inclined to adjudicate the same first. Though the Ld. CIT, DR vehemently opposed the admission of the legal issue for the first time before us, we taking note of the Hon ble Supreme court decision in NTPC Vs. CIT 229 ITR 383 (SC) are inclined to admit the legal issue which the assessee has raised for the first time before this Tribunal. The assessee has challenged the invocation of penalty proceeding u/s. 271AAB of the Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sd/ (PMJ) JM AM 5. We note that on 26.07.2018 the Ld. DR sought time to prepare the reply of the Revenue as to whether the penalty u/s. 271AAB would survive since there was no search u/s. 132 of the Act carried out against the assessee company. Even the Department was directed to produce the relevant assessment records. However, the Department could not controvert the challenge raised by the assessee that in its case on 16.10.2012 only survey u/s. 133A of the Act happened and not search u/s. 132 of the Act and also that the AO initiated 153C proceedings and not 153A proceedings against the assessee and fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid facts, we are of the considered opinion that the penalty u/s. 271AAB could not have been initiated by the AO since there has been no search on the assessee company. Therefore, the assessee succeeds and the very initiation of penalty proceeding u/s. 271AAB of the Act is quoram non judice and non-est in the eyes of law and is, therefore, quashed. To come to such a conclusion, we rely on the coordinate bench decision in the case of DCIT Vs. Volga Dresses, in ITA No. 201 202/PAN/2016 for AYs 2013-14 and 2014-15 dated 27.03.2017. In the said case, it has been held as under: We have considered the rival submissions. A perusal of the provisions of section 271AAB shows that the opening words are penalty where search has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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