TMI Blog2019 (12) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... : Shri Prakash Jhunjunwala, Shri Abhishek Jhunjhunwala, ARs For the Respondent : Shri Kumar Padmapani Bora, DR ORDER PER MAHAVIR SINGH, JM: This appeal by assessee is arising out of order of the Commissioner of Income Tax (Appeals)]-48, Mumbai [in short CIT(A)], in Appeal No. CIT(A)-48/I.T.-05/DC CC-2(4)/2017-18 vide dated 20.06.2018. The Assessment was framed by the Dy. Commissioner of Income Tax, Circle-2(4), Mumbai (in short DCIT/ AO) for the A.Y. 2013-14 vide order dated 16.03.2015 under section 143(3) of the Income-tax Act, 1961 (hereinafter the Act ). 2. The only issue in this appeal of assessee is against the order of CIT(A) confirming the levy of penalty under section 271AAB of the Act. For this, the assessee has raised the following 4 grounds: - The appellant prefers an appeal against the order dated 20/05.2018 passed by Ld. Commissioner of Income Tax (Appeal)-48, Mumbai on following amongst other grounds each of which are without prejudice to any other: - 1.0 On facts and circumstances of the case and in law, Ld. CIT(A) erred in confirming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtrapolated the figures and made addition to the total income and estimated the total income at ₹1,36,42,784/-. The CIT(A) deleted the addition made on estimate basis but sustained the addition of unexplained money found and seized during the course of search on Gold Sukh Safety Vaults Ltd in locker No. 400 amounting to ₹79.50 lacs as unaccounted money. The AO issue penalty notice under section 271AAB of the Act and levied the penalty vide Para 6 as under: - 6. On considering the facts of the case and submissions of the assessee including case laws relied thereon, the penalty matter is decided as under: - a) The assessee has admitted undisclosed income in the stamen under sub section (4) of section 132. b) Specified the manner in which such income has been derived. c) Filed return on 15.11.2013 declaring total income, 82,06,510/- and vide letter filed on 13.11.2013, requested for the adjustment of the cash seized with the tax on such undisclosed income within the date specified. Accordingly, the penalty u/s 271AAB is computed in understand manner: - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r declaring such undisclosed income therein; 5.2.1 A plain reading of section 271AAB shows that it merely means that statement under section 132(4) should have been recorded during the course of, where search has been initiated under section 132. Thus it is not compulsorily require that search warrant should be in the name of the assessee. The only two requirements are (i) a search should have been initiated and (ii) in the course or search statements under section 132(4) should be recorded admitting the undisclosed income. The AO has levied minimum penalty of 10% as per clause (a) of section 271AAB. Therefore, the ground No. 2 has no force and is dismissed. Aggrieved, now assessee is in appeal before Tribunal. 5. Before us, assessee contended that this issue is covered by various decisions of co-ordinate benches of this Tribunal. He also stated that there is no search conducted under section 132 of the Act on the assessee and assessment was framed under section 153C of the Act as a result of cash found an addition of unexplained money found and seized during the course of search on Gold Sukh Safety Vaults Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. DCIT vs. Cargo Solutions Pvt. Ltd. in ITA No. 227/Kol/2017 CO. No. 78/Kol/2018 dated 28.11.2018 2. DCIT vs. Volga Dresses in ITA Nos. 201 202/PAN/2016 dated 27.03.2017. 3 DCIT vs. Velji Rupshi Faria 97 Taxmann.com 460 Mum.ITAT 4 DCIT Vs. Shreeji Corporation in ITA No. 73 74/Ahd/2017 8. From the above case laws, the one of the case decided by co-ordinate Bench in the case of DCIT vs. Cargo Solutions in ITA No. 227/Kol/2017 CO. No. 78/Kol/2018 dated 28.11.2018, wherein vide Para 5 read as under: - 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also talks of the assessee declaring any undisclosed income in the course of the search in the statement under section 132(4). Admittedly in the present case, that is in the case of the assessee firm in appeal there has been no search. Search admittedly is on the residence of one of the partner of the assessee firm. Further a perusal of the order of the learned LD. CIT(A) also clearly shows that the learned CIT(A) has cancelled the penalty on the ground that there was no search in the case of the assessee firm. The revenue has not been able to point out as to how this finding of the learned CIT(A) is erroneous. This being so the finding of the learned CIT(A) on this issue stands confirmed. Since we allow the legal issue raised by the assessee in its Cross Objection in respect of penalty proceedings u/s. 271AAB of the Act, the revenue appeal has become academic and infructuous. Therefore, we dismiss the revenue s appeal and allow the Cross Objection of the assessee. 9. In view of the above, we noted that in all the above case laws, the co-ordinate Benches have taken a consistent view holding that the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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