TMI Blog2023 (9) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... oks or any incriminating material nor does the same pertaining to any false expenditure claimed by the assessee; and also that the learned Assessing Officer did not bring out anything on record to prove that the surrendered income pertains to any entry in the books of the assessee or to any false expenditure claimed by the assessee. It is also not the case of the Revenue that the assessee admitted the additional income on account of any incriminating material that was unearthed during the course of search. In the circumstances, respectfully following the view taken in the case of Padam Chand Pungliya [ 2019 (4) TMI 565 - ITAT JAIPUR] we hold that the disclosure of additional income in the statement recorded under section 132(4) of the Act itself is not sufficient to levy penalty u/s 271AAB of the Act until and unless income so disclosed by the assessee falls in the definition of undisclosed income defined in explanation to section 271AAB(1) - Decided in favour of assessee. - Shri Rama Kanta Panda, Vice President And Shri K.Narasimha Chary, Judicial Member For the Assessee : Shri K.C. Devdas, AR For the Revenue : Shri Kumar Aditya, DR ORDER PER K. NARASI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot pointed out any specific discrepancies in the books of the assessee pertaining to the additional income of Rs. 1 crore nor did he highlight any seized material and, at the same time, there is no finding from any seized material indicating that there is any concealment of income unearthed in the course of search or post search proceedings. He further found that the undisclosed income admitted by the assessee does not fall in any of the categories of the definition of undisclosed income since the assessee has neither taken entry of the undisclosed income in its books nor the same is corroborated to any increase in the books or any incriminating material nor does the same pertains to any false expenditure claimed by the assessee. Learned CIT(A) further found that the learned Assessing Officer did not bring out anything on record to prove that the undisclosed income pertains to any entry in the books of assessee or to any false expenditure claimed by the assessee and that there is no finding whatsoever to any incriminating material based on which the assessee had admitted additional income. Learned CIT(A), consequently, held that the learned Assessing Officer merely levied the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peace. With reference to clause (c) of explanation to section 271AAB of the Act, he submitted that as rightly observed by the learned CIT(A), this particular amount surrendered by the assessee voluntarily to purchase piece, does not fall in any of the categories mentioned therein. 10. Learned AR placed reliance on the decisions of PCIT vs. Shri Ramdass Motor Transport 238 ITR 177, PCIT vs. M/s Sri Ramakrishna Vihar 312 ITR 112, Padam Chand Pungliya vs. ACIT (2020) 113 Taxmann.com 446 (Jaipur-Trib), CIT vs. S.Khader Khan Sons (2008) 300 ITR 157 (Madras), and CIT vs. Harjeev Agarwal (2016) 70 taxmann.com 95 (Delhi). 11. We have gone through the record in the light of the submissions made on either side. It is a fact that at the time of search, a paper was found wherein a loss of Rs. 17,833/- was noted and according to the assessee, such a document contains the notice of payments on receivables on account of betting by various punters and the net amount was only a loss of Rs. 17,833/- and no discrepancy in respect of it was found by any authorities in respect of the figures mentioned therein. It is also an undisputed fact that the learned Assessing Officer did not refer to this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not have any evidentiary value. 14. In the case of Ravi Mathur vs. Dy.CIT [IT Appeal No. 969 (JP) of 2017, dated 13-6-2018, it was held that it is a pre-condition for invoking the provisions of section 271AAB that the assessee admitted the undisclosed income in the statement under section 132(4) of the Act. The definition of 'un-disclosed income' is provided in section 271AAB of the Act itself and, therefore, the learned Assessing Officer in the proceedings under section 271AAB of the Act has to examine all the facts of the case and then arrive to the conclusion that the income disclosed by the assessee falls in the definition of un-disclosed income as stipulated in the explanation to said section. The first question arises is whether the levy of penalty under section 271AAB of the Act is mandatory and consequential to the disclosure of income by the assessee under section 132(4) of the Act or the learned Assessing Officer has to take a decision whether the given case has satisfied the requirements for levy of penalty under section 271AAB of the Act, and after examining the provisions of law, held that the penalty under section 271AAB of the Act is not a consequenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been claiming that only to purchase piece, he has been disclosing additional income. As rightly pointed out by the learned CIT(A), the income disclosed by the assessee is not represented by any of the categories mentioned in clause (c) of explanation to section 271AAB of the Act, inasmuch as the assessee has never taken any entry of the un-disclosed income in its books nor the same is corroborated to any entry in the books or any incriminating material nor does the same pertaining to any false expenditure claimed by the assessee; and also that the learned Assessing Officer did not bring out anything on record to prove that the surrendered income pertains to any entry in the books of the assessee or to any false expenditure claimed by the assessee. It is also not the case of the Revenue that the assessee admitted the additional income on account of any incriminating material that was unearthed during the course of search. 18. In the circumstances, respectfully following the view taken by a Co-ordinate Bench in the case of Padam Chand Pungliya vs. ACIT (supra), we hold that the disclosure of additional income in the statement recorded under section 132(4) of the Act itself is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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