TMI Blog2020 (3) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... ed:- 6-1-2020 - Shri Mahavir Prasad, Judicial Member And Shri Waseem Ahmed, Accountant Member For the Appellant : Shri Ketan H. Shah, A.R. For the Respondent : Smt. Aparna Agarwal, CIT/DR And Shri Deelip Kumar, Sr. D.R. ORDER PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. These 11 appeals are filed by the Assessee are directed against the order of the Ld. CIT(A) and all are arising from the search of same group of a Dhanjimama Group dated 03.07.2012. Only Assessees and Assessment Years are different otherwise facts and circumstances of all the Assessees are common. Therefore, for the sake of brevity, we would like to dispose of all the appeals by way of the common order. 2. In this case, we take up ITA No. 570/Ahd/2018 for A.Y. 2011-12 in the case of Kavitaben Luhana, the assessee has taken following grounds of appeal: 1.00 IMPOSITION OF PENLATY TO THE TUNE OF ₹ 26,05,572 /- ON ADDITION MADE ON ACCOUNT OF UNDISCLOSED INCOME. 1.01 On the facts and circumstances of appellant's case and m law, the Id. CIT (Appeals) has erred \n confirming the levy of penalty to the tune of ₹ 26,05,5727- under section 271(1)(C) of the Act by the Id. AO on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h action and the findings thereof, thus the amount of ₹ 84,75,630/- is undisclosed income of the assessee. Therefore, penalty proceedings u/s 271(l)(c) of the IT Act are initiated for this default. The said income of ₹ 84,75,630/- earned from profit on sale of land or building. 2. I further wish to inform you that though I have filed return u/s 153A of the Act and certain amount was declared as additional income in the return, the same does not amount to income being declared under search proceedings. The declaration of additional income in the return was a voluntary act. Therefore said additional income does not have a character of undisclosed income found in search proceedings. In view thereof no penalty is liveable u/s 271(l)(c) of the Act on that basis. 3. I further wish to inform you that, new section 271AAB of the Act relating to penalty where search has been initiated on or after 01.07.2012 is inserted by the Finance Act, 2012 and the same has been has also been made effective from 01.07.2012. Therefore for any undisclosed income found during search proceedings there is separate penal provisions u/s 271AAB of the Act and penalty is not liveab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. We have heard the rival contentions of both the parties and perused the materials available on record. At the outset we note that the explanation to section 271AAB of the Act has a direct bearing on the on the issue on hand which reads as under: 48[Penalty where search has been initiated. 271AAB. (1) The Assessing Officer may, notwithstanding anything contained in any other provisions of this Act, direct that, in a case where search has been initiated under section 132 on or after the 1st day of July, 2012 49[but before the date on which the Taxation Laws (Second Amendment) Bill, 2016 receives the assent of the President50], the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,-- XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (c) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d profitability statement. There is no evidence to establish that projections reflected in the loose sheet is real. No other material was found during the course of search indicating the undisclosed income. There was no money, bullion, jewellery or valuable article or thing or entry in the books of accounts or documents transactions were found during the course of search indicating the assets not recorded in the books of accounts or other documents maintained in the normal course, wholly or partly. The revenue did not find any undisclosed asset, any other undisclosed income or the inflation of expenditure during the search/ assessment proceedings. Though a loose sheet of page No.107 of Annexure A/GS/MA/1 was found that does not indicate any suppression of income but it is only projection of profit statement. The amount of ₹ 3571/- mentioned in the projections refers to cost and profit which is approximate sale price but not the cost as stated by the AO in the penalty order. The cost of construction in the projections projected at ₹ 2177/- which is in synch with the statement given by the assessee. The AO was happy with the disclosure given by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming the levy of penalty to the tune of ₹ 5,79,380/- under section 271(1)(C) of the Act by the Id. AO on addition made on account of disclosure of additional income while filing return as part of search proceedings. While doing so, the Hon'ble CIT (Appeal) failed to appreciate that there was no addition made by the Id. AO during the course of assessment proceedings u/s 143(3) r.w.s 153A of the Act to the returned income under section 153A of the Act, and therefore appellant cannot be treated to be assessee concealing income. 1.02 Your appellant prays to hold so now and delete the impugned penalty. 2.00 YOUR APPELLANY CRAVES LEAVE TO ADD, AMEND AND /OR DELETE ALL OR ANY GROUND(S) TAKE HEREINABOVE. 14. Since on similar facts and circumstances of the case, we have given relief to the assessee in connected ITA No. 570/Ahd/2018. Thus, in parity with the said appeal, we allow the appeal of the assessee. 15. Now we come to ITA Nos. 575 to 577/Ahd/2018 for A.Ys. 2011-12 to 2013-14 in the case of Sheela D. Mangalani , assessee has taken following grounds of appeal: 1.00 IMPOSITION OF PENLATY TO THE TUNE OF ₹ 61,43,570 /- ON ADDITION MADE ON ACCOUNT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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