TMI Blog2022 (9) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... er in which such income was derived - On a perusal of the statement recorded under section 132(4) of the Act, that forms part of the assessment order, we observe that, in response to a question asked by the authority concerned, the assessee came forward to offer the money found in the bank account as well as in cash as income. It is observed, the authority recording statement did not pose any specific query to the assessee to explain the mode and manner in which such undisclosed income was derived. Further during the penalty proceedings, we note that the reply filed by the assessee has not even been considered and has been rejected at the threshold. Thus, in course of search and seizure operation when the assessee came forward and offered certain income to show his bona fide and ultimately followed it up by actually offering such income to tax, in our view, the assessee should be given the benefit of the exceptions provided under sub-section (2) of section 271AAA. It is a fact on record that the assessee is no more and has been substituted by his legal heir, in course of proceeding before us. Thus, in our considered opinion, a liberal and compassionate view has to be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was in the business of real estate, leasing quarries and the income earned therefrom has been disclosed and the same has been accepted by the department in the quantum proceedings. Therefore, the question of specifying the manner in which such income has been derived and not substantiating the undisclosed income does not arise in the case of appellant. 5. The authorities further failed to appreciate that the appellant has not only satisfied the twin conditions, he has also paid the entire tax and interest on the income offered to tax and thereby has satisfied all the conditions specified u/s 271 AAA to exempt himself from the rigor of this penalty. 6. The learned CIT(A) failed to appreciate that, the AO has not brought any evidence on record to prove that assessee had concealed the income except the statement recorded u/s 132(4) of the Income Tax Act, 1961: Hence, the levy of penalty u/s 271AAA of the Income Tax Act, 1961 is bad in law. 7. The appellant craves leave to add, alter, amend, substitute, change, delete any of the grounds of appeal. 8. For the above and other grounds that may be urged at the time of ' hearing of the appeal, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not control the submissions of the Ld.AR, opposed the admission of the additional ground raised by the assessee 5. We note that this issue goes to the root cause of the levy and therefore deserves to be adjudicated before considering the other aspects and raised in the original ground of appeal. Respectfully following the view taken by Hon ble Supreme Court in case of National thermal Power Co Ltd vs. CIT(supra) the issue raised by the assessee for both years under consideration, being legal issue stands admitted. Accordingly applications filed by assessee for the assessment year under consideration raising additional grounds stands allowed. 6. Brief facts of the case are as under: 6.1 The assessee is in the business of Real Estate, Leasing Quarries. Search u/s 132 of the Act was conducted at the assessee s premises on 26/08/2008. During the search proceedings, incriminating documents evidencing phenomenal land transactions and concealment of income were found, seized and impounded. While analyzing the materials seized/impounded at his residence and office premises it was seen that he has about 1200 acres of land in his possession. 6.2. The assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009-10 2,35,10,690 Total 17,09,22,366 6.6 Ld.AO observed that, the assessee would not have surrendered monies for the years under consideration, had the search and seizure operation not taken place. The Ld.AO initiated proceeding for imposition of penalty under section 271AAA of the Act. 6.7 The Ld.AO issued show-cause-notice inder section 274 r.w. 271AAA to the assessee on 31/12/2010 for years under consideration for inaccurate particulars. The assessee filed reply on 27/06/2011, which was not accepted by the Ld.AO. Ld.AO passed order levying penalty on order on 30-6-2015 imposing penalty under section 271AAA of the Act for an amount of Rs.10,99,990/- and Rs.7,90,740/- for assessment year 2008-09 and 2009-10 respectively. Aggrieved by the penalty order of the Ld.AO, assessee preferred appeal before the Ld.CIT(A). 6.8 In course of proceeding before the Ld.CIT(A) confirmed the penalty imposed with the observation that the manner in which the disclosure was made and that the twin condition that would enable the assessee to be exempted from levy of penalty does not get satisfied. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the details of investments made by assessee in various agricultural lands. We note that no cash has been seized from the premises during the course of search and the declaration made by SSA under section 132 (4) are all cash deposits into the bank and investments made by assessing in agricultural land. Further from the assessment or do we know that assessee had prepared the statement of affairs for the relevant block period by computing the excess assets or liabilities for each assessment year. It is also undisputed that the amount that has been computed by assessee in such manner has been declared and due taxes have been paid in the return of fire income filed for the years under consideration. For better appreciation, it is necessary to have a look at the provision contained under sub-section (2) of section 271AAA of the Act, which reads as under: Penalty where search has been initiated. 271AAA. (1) .. (2) Nothing contained in sub-section (1) shall apply if the assessee,- (i) in the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been deri ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
