TMI Blog2023 (2) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the decision of the Coordinate Bench of the Tribunal in the case of M/s. Vijayshree Autocom Ltd [ 2022 (3) TMI 1492 - ITAT KOLKATA] wherein, the Tribunal on the identical issue has deleted the penalty while relying upon the decision of the Hon'ble Madras High Court in the case PCIT vs. Shri R. Elangovan [ 2021 (4) TMI 1131 - MADRAS HIGH COURT ] penalty order passed by the Assessing Officer is invalid and is accordingly quashed. The appeals of the assessee are allowed on legal issue. - I.T.A No. 657/Kol/2022 - - - Dated:- 16-1-2023 - Shri Sanjay Garg , Judicial Member And Shri Manish Borad , Accountant Member Shri Manoj Kataruka , AR , appeared on behalf of the appellant Shri Subhrajyoti Bhattacharjee , CIT - DR , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered income of Rs.2,00,60,300/-. The Assessing Officer however levied the penalty @30% holding that the assessee did not pay the due taxes on the income disclosed rather the disclosed income was set off against the derivative loss. 5. In appeal, the ld. CIT(A) held that the search action of the Assessing Officer was not justified. However, he restricted the penalty to 10% holding that it was mandatorily leviable even the assessee fulfils all the required conditions as prescribed u/s 271AAB(1)(a) of the Act that the assessee surrenders income during the course of search action, substantiates the manner in which the undisclosed income was derived and further pays the due taxes and interest and furnishes the return of income. Though, all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T in ITA No.1218/JP/19 dated 02.06.22 (Jaipur Trib.) 2. Ashok Bhatia vs. DCIT in ITA No.869/Ind/18 dated 05.2.20 (Indore Trib.) 3. Rashmi Jalan vs. ACIT in ITA No.326/Kol/20 dated 30.09.20 (Kolkata Trib.) 4. CIT vs. M/s SSA s Emerald Medows in ITA No.380 of 2015 dated 23.11.2015 (Karnataka HC) 7. The ld. DR, on the other hand, relied upon the findings of the lower authorities. 8. We have considered the rival contentions and gone through the record. We find that the aforesaid issue raised by the assessee is duly covered by the decision of the Coordinate Bench of the Tribunal in the case of M/s. Vijayshree Autocom Ltd vs. DCIT in ITA No.2374 2375/Kol/2018 decided on 28.03.22, wherein, the Tribunal on the identical is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal Nos. 770 771 and CMP No. 18581 of 2018 dt. 30/03/2021. The ld. D/R, on the other hand, relied heavily on the order of the ld. CIT(A) by stating that the provisions provision of Section 271(1)(c) of the Act are quite different from provisions of Section 271AAB as the two penal sections deal with distinct and different issues altogether. The ld. D/R submitted before us that the provisions of Section 271(1)(c) of the Act deals with the imposition of penalty on the particular charge whereas the provisions u/s 271AAB deal with the quantum of penalty. The ld. D/R, therefore, submitted that the order of the ld. CIT(A) may kindly be sustained. 7. We have perused the decision cited before us in the case of PCIT vs. Shri R. Elango ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d none of the irrelevant portions had been struck off nor the relevant portions had been marked or indicated. Hence, the Tribunal is right in observing that the penalty could not have been levied based on such defective notice and more particularly, when the assessee has been strenuously canvassing the jurisdictional issue from the inception. 16. In so far as the decision of the Allahabad High Court in the case of Sandeep Chandak is concerned, the factual position is slightly different. This decision is for the principle that where the assessee, in the course of search, makes a statement, in which, he admits the undisclosed income and specifies the manner, in which, such income has been derived, then the provisions of Section 271AAB o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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