TMI Blog2021 (12) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,40,000/-) and filed return of income pursuant to notice u/s. 153A of the Act which includes the total amount of ₹ 63,50,320/- has been declared and the same has been accepted in toto by the AO. We note that since the penalty u/s. 271AAB of the Act is levied on the amount of ₹ 45,50,000/- and since the same has been found at the time of search and which has been found recorded in the 'other document' marked by the search team as SA/1, we are of the considered opinion that for the purpose of 271AAB of the Act, this amount from SA/1 cannot be termed as 'undisclosed income' as per the definition given under Section 271AAB of the Act (supra) and therefore penalty u/s. 271AAB of the Act cannot be levied in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same was recorded in a book (not regular books of account) however, the assessee intended to record the same later in the regular books, so it cannot be termed as undisclosed income. Hence, penalty u/s. 271AAB of the Act is not leviable. However, AO did not accept assessee's contention. AO was of the opinion that assessee had not disclosed this amount in the books of account as this was found in the incriminating material seized at the time of search, so penalty is leviable. Moreover, AO has also mentioned that the income declared of ₹ 45.50 lakhs is covered by the definition of 'undisclosed income' as given in the Section 271AAB of the Act. Thus, rejecting assessee's contention, the AO levied penalty of ₹ 4,55 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the financial year ends [there was more than 3 months from the date of search which took place on 13.12.2012]. Further, according to the Ld. A/R, this amount of ₹ 45.50 lakhs could not be termed as 'undisclosed income' since it does not fall in the definition given u/s. 271AAB of the Act wherein the definition of 'undisclosed income' has been given which is as under: 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, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,- (a) a sum computed at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of account (not regular books) and had all intention to record the same in the regular books of accounts before the end of the financial year. However, since the search took place on 13.12.2012, the assessee could not enter the same in the regular books of accounts. According to Shri A.K. Tulsiyan, from a perusal of the definition of undisclosed income for the purpose of penalty u/s. 271AAB of the Act, the meaning given therein is narrow. According to him, a close look at the definition reveals that only items which are un-recorded at the time of search will fall in its ken. According to him, if the assessee has not recorded about any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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