TMI Blog2019 (12) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee has not declared any income in the returns filed in response to the notice issued u/s 153A(1)(a) more than what has been declared in the regular returns.The addition has been made by the revenue based on the seized material. The due date of filing of return has already been expired. AR contention that the presidential assent has been received on 13.08.2009, hence not applicable cannot be accepted as the provisions of the Act clearly says that this provision is applicable with retrospective effect from 01.06.2007. Keeping in view, since no prima facie case can be made on applicability of any legal ground on this issue, we hereby decline to admit the additional grounds taken by the assessee on this issue. Issue of notice u/s 274 read with Section 271(1)(c) dated 23.12.2011, we find that the Assessing Officer has not specified under which limb of the provisions of Section 271(1)(c), the penalty is being initiated and levied. The specific mention whether the penalty is levied whether for concealment of particulars of income or for furnishing inaccurate particulars of income. As relying on M/S. SAHARA INDIA LIFE INSURANCE COMPANY, LTD. [ 2019 (8) TMI 409 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) of the Income Tax Act, 1961. It was contended that the instant case of the assessee is covered under the provisions of Section 271AAA. Admission of the additional ground has been opposed in principle by the ld. DR and argued that the facts of the case do not entitle admission of additional grounds. 6. We have perused the judgment of the Hon ble Apex Court in the case of National Thermal Power Co. Ltd. Vs Commissioner Of Income Tax on 4 December, 1996, (229 ITR 383) on this issue. The relevant portion of the judgment is as under: Under Section 254 of the Income-tax Act, the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. 8. The reframed question, therefore, is answered in the affirmative, i.e., the Tribunal has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee. We remand the proceedings to the Tribunal for consideration of the new grounds raised by the assessee on the merits. 7. The background leading to additional ground is that for the assessment year 2005-06, return declaring income of ₹ 1,48,33,570/- was filed on 28.10.2005. On 30.07.2009, a search seizure operation u/s 132(1) was conducted on the assessee, who is engaged in the business of manufacture and trading of metal sheets. During the course of search, certain documents were seized and the assessee had made surren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 828/- under Section 271(1)(c) of the Income Tax Act, 1961. On the grounds that assessee was also covered u/s 132 in the search conducted on 30.07.2009, the assessee filed his return u/s 139 at an income of ₹ 1,48,33,570/- and the same has been treated as returned filed in response to notice u/s 153A of the Act. Further, addition of ₹ 5,59,802/- was made during the year under consideration by the AO on the basis of the documents seized during the search which were related to the assessee which the assessee has also admitted to this undisclosed income as stated in the assessment order by the Assessing Officer. 11. Heard the arguments of both the parties and perused the material available on record. 12. We find that, Explanation 5A to section 271(1)(c) was introduced for the first time by the Finance Act, 2007 and was amended w.r.e.f. 1.6.2007 by the Finance Act, 2009, Explanation 5A to section 271(1)(c) is applicable to cases where search was conducted on or after 1.6.2007. The provisions of the relevant provisions of the Act are as under: [ Explanation 5A.- Where, in the course of a search initiated under section 132 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undisclosed income and specifies the manner in which such income has been derived; (ii) substantiates the manner in which the undisclosed income was derived; and (iii) pays the tax, together with interest, if any, in respect of the undisclosed income. (3) No penalty under the provisions of clause (c) of sub-section (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1). (4) The provisions of sections 274 and 275 shall, so far as may be, apply in relation to the penalty referred to in this section. Explanation.-For the purposes of this section,- (a) undisclosed income means- (i) any income of the specified previous year represented, either wholly or partly, by any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or other documents or transactions found in the course of a search under section 132, which has- (A) not been recorded on or before the date of search in the books of account or other documents maintained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of return has already been expired. 4. The ld. AR contention that the presidential assent has been received on 13.08.2009, hence not applicable cannot be accepted as the provisions of the Act clearly says that this provision is applicable with retrospective effect from 01.06.2007. 17. Keeping in view, since no prima facie case can be made on applicability of any legal ground on this issue, we hereby decline to admit the additional grounds taken by the assessee on this issue. 18. Regarding the grounds relating to issue of notice u/s 274 read with Section 271(1)(c) dated 23.12.2011, we find that the Assessing Officer has not specified under which limb of the provisions of Section 271(1)(c), the penalty is being initiated and levied. The specific mention whether the penalty is levied whether for concealment of particulars of income or for furnishing inaccurate particulars of income. The judgment of Hon ble jurisdictional High Court in the case of PCIT Vs Sahara India Life Insurance Co. Ltd. in ITA No. 475/2019 dated 02.08.2019 affirmed as under: 21. The Respondent had challenged the upholding of the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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