2023 (5) TMI 953

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..... by the DCIT, Circle-11, New Delhi (hereinafter referred as the Ld. AO). 2. Assessee is in appeal raising following grounds : "1. The order passed is illegal, invalid, and bad in law. 2. The Penalty levied at Rs. 42,65,000/- is unjustified and unwarranted. 3. That on the facts and the circumstances of the case and in law, the penalty shall not be levied ordinarily where the assessee is not at fault or guilty of misconduct. The Ld. AO and Commissioner of Income Tax (Appeals) erred by levying penalty on the appellant without any finding/proving anything on record in relation to the additional income. Hence the penalty levied is uncalled and without any basis. 4. That on the facts and the circumstances of the case, the Ld CIT (A) a .....

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..... 5. In the light of aforesaid it can be observed that the impugned order of penalty has been passed u/s 271AAA of the Act. Ld. CIT(A) has observed on the basis of record that no statement u/s 132(4) was recorded while the Ld. AO had mentioned in the penalty order in para 5 that assessee has not furnished any explanation in respect of surrendered income u/s 132(4) amounting to Rs. 4,26,50,000/- either at the time of assessment proceedings or during the course of penalty proceedings. 6. It is relevant to reproduce here Section 271AAA of the Act of convenient determination of the grounds; '271AAA. Penalty where search has been initiated.-(1) The Assessing Officer may, notwithstanding anything contained in any other provisions of this Act, d .....

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..... 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 the search; or (ii) any income of the specified previous year represented, either wholly or partly, by any entry in respect of an expense recorded in the books of account or other documents maintained in the normal course relating to the specified previous year which is found to be false and would not have been found to be so had the search not been conducted; (b ) "specified previous year" means the previous year- (i) which has ended before the date of search, but the date of filing the return of income under sub-section (1) of section 139 f .....

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