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TMI Blog2022 (3) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... 271AAB(1)(a) of the Act based on the decision of this Tribunal in M/s. Rashmi Metaliks Ltd. (ITA No. 1608/Kol/2017). 3. This appeal of revenue is time barred by three days. After hearing both the sides, we condone the delay of three days and admit the appeal for hearing. 4. Brief facts of the case are that a search and seizure action u/s. 132(1) of the Act was conducted on 18.02.2013 (AY 2013-14) which is the relevant year under consideration for this penalty appeal which was conducted on M/s. Rashmi Group and its associates. Shri Jivendra Kumar Mishra, the assessee before us in this appeal is an individual connected with this group. In the statement recorded during search u/s. 132(4) of the Act, the assessee (Shri Mishra) had admitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. CIT(A) erred in making a finding that the declared amount (Rs. 7.45 cr.) was not falling in the definition of 'undisclosed income' for the purpose of levying penalty under section 271AAB of the Act. For that he drew our attention to the definition clause of undisclosed income given u/s. 271AAB of the Act and tried to demonstrate that since this commission amount of Rs. 7.45 cr. was not recorded in the books of account of the assessee on the date of search, the said amount is an 'undisclosed income' and, therefore, the penalty u/s. 271AAB of the Act was validly passed by the AO against the assessee and, which has been erroneously deleted by the Ld. CIT(A) which impugned action of Ld. CIT(A) may be reversed and the order of AO be restor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch u/s. 132(4) of the Act; and consequently in this AY 2013-14 the assessee had offered to pay tax on the sum of Rs. 7,45,00,000/- by filing the return and had paid tax on it. According to Ld. AR, even though the AO accepted the return of income filed by the assessee pursuant to the notice u/s. 153A of the Act, the AO has wrongly levied penalty u/s. 271AAB of the Act in respect of Rs. 7,45,00,000/- @ 10% which is Rs. 74,50,000/-. On appeal, according to Ld. AR, the Ld. CIT(A) rightly deleted the same by relying on the decision of this Tribunal in the very same group case of M/s. Rashmi Metaliks (supra), which does not require any interference from our side. 7. We have heard rival submissions and gone through the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71AAB of the Act, which reads as under: "(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 of account or other documents maintained in the normal course relating to such previous year; or (B) otherwise not been disclosed to the Chief Commissioner or Commissioner before the date of search; or (ii) any income of the specified previous year represented, either wholly or partly, by any entry in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that those items stated in sub clause (i) if found by the search party which has not been found recorded in the books of account or other documents of the assessee, it will qualify as "undisclosed Income" otherwise it cannot be called as "undisclosed income" for the purpose of levy of penalty u/s. 271AAB of the Act. Coming to the instant case, the assessee's case is that being an individual he is not required as per law to maintain books of account. However, it is elementary in such cases that the assessee in the normal course writes/notes down the income/expenditure which accrues to him in his diary/note book etc which could be treated 'as books/other documents' for the purpose of computation of income of such persons. So, now it has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B of the Act. So since the assessee's disclosure does not fall in the definition of undisclosed income in sub clause (i) to clause (c) of section 271AAB of the Act, the penalty u/s. 271AAB of the Act cannot be legally sustained in the facts of this case as rightly held by the Ld. CIT(A) by relying on the decision of this Tribunal in M/s. Rashmi Metaliks. So, we adopt the other reasons stated therein in the case of M/s. Rashmi Metaliks mutatis mutandis in addition to the reason given (supra) by us to uphold the impugned order of the Ld. CIT(A). Therefore, we do not wish to interfere in the impugned order of the Ld. CIT(A). So, we sustain it. 9. In the result, the appeal of the revenue is dismissed. Order is pronounced in the open court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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