TMI Blog2023 (11) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in Sub-Section2(i) for non-specification of undisclosed income u/s 132(4) of the Act. In the statement recorded no such undisclosed income was derived. It is duty of the Authorised Officer to ask the relevant question to ascertain the undisclosed income during the statement recorded in search proceeding, relied on Jayendra N. Shah[ 2018 (3) TMI 950 - ITAT AHMEDABAD] - DR in argument mentioned that the assessee had lost the immunity, so penalty is justified. But remained silent about the application of Section 271AAA(2)(i) - In our considered view, the assessee is eligible for granting immunity for application of penalty u/s 271AAA - Decided in favour of assessee. - DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER For the Appellant : Sh. P. N. Arora, Adv. For the Respondent : Smt. Ratinder Kaur, Sr. DR. ORDER Per: Anikesh Banerjee, JM: The instant appeal of the assessee was filed against the order of the ld. Commissioner of Income Tax (Appeals)-5, Ludhiana, [in brevity the CIT (A) ] order passed u/s 250 (6) of the Income-tax Act, 1961 (in brevity the Act) for assessment year 2009-10. The impugned order was emanated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirming the penalty is bad in law, inasmuch as, the worthy CIT(A) has failed to apply his mind on this proposition and confirmed the penalty without any rhyme reason and without appreciating the facts of the case. As such, the order of the Ld CIT(A) thereby confirming the penalty levied by the AO is bad in law and the same is liable to be cancelled. Alternatively, the penalty levied is very high excessive. 8. That any other ground of appeal which may be urged at the time of hearing of the appeal. 3. Brief facts as culled out from the records are that the search u/s 132 was conducted on 03.09.2009. Consequent upon the same, the assessee filed an application u/s 245C(1) before the Income Tax Settlement Commission (in short ITSC) at new Delhi on 24.11.2011. The order u/s 245D (4) dated 28.05.2013 was passed by the ITSC along with three other cases of this group. Effect to the order of ITSC was given on dated 29.07.2013, wherein major demand of Rs. 1,67,78,560/- for impugned assessment year was created and fixed. 3.1 As per the above order, the amount was directed to pay in six equal instalments in every alternate month starting from 15.06.2013. Thus, the amount w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for AY 2009-10 20-11-19 1,000,000 01163 9 Payment of Tax for AY 2009-10 17-10-19 500,000 08022 10 Payment of Tax for AY 2009-10 12-09-19 400,000 01676 11 Payment of Tax for AY 2009-10 11-04-19 400,000 05458 12 Payment of Tax for AY 2009-10 05-10-16 10,00,000 51985 13 Payment of Tax for AY 2009-10 05-10-16 10,00,000 52024 14 Payment of Tax for AY 2009-10 05-10-16 9,00,000 52061 15 Payment of Tax for AY 2009-10 01-10-16 3,50,000 01213 16 Payment of Tax for AY 2009-10 01-10-16 5,00,000 011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tlement Commissioner. But at the same time, it is not in dispute that all payments have been made before the appellant approached this Court and filed this appeal by way of special leave petition on 20.01.2016, though the time originally granted by the Settlement Commissioner was only up to 31.07.2015. 4. However, we find from the provision that the Settlement Commissioner is free to grant further time for payment, under Section 245H(1A) of the said Act. 5. Having heard the learned senior counsel for the appellant and learned Additional Solicitor General appearing for the respondents, we are of the view that in the facts and circumstances of this case, it is not necessary to relegate the appellant to the Settlement Commissioner for enlargement of time, since the payments have already been made. 2. JCIT vs. Jayendra N. Shah ITA No. 1552/Ahd/2016 date of order 16.03.2018, ITAT, Ahd 3. Learned Departmental Representative vehemently contends that the CIT(A) has erred in law and on facts in deleting the impugned penalty as imposed by the Assessing Officer on account of assessee s failure in specifying the manner of having derived the above undisclosed income as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty was issued on 24.12.2014. As per the penalty order, no reply was filed before the AO even after reminder issued on 12.01.2015. The AO levied penalty holding that the immunity granted to the assessee got waived as per the provisions of Section 245H(IA). For clarity the provisions of the Section are reproduced below: 245H(1A) An immunity granted to a person under sub-section (I) shall stand withdrawn if such person fails to pay any sum specified in the order of settlement passed under sub-section (4) of section 245D within the time specified in such order or within such further time as may be allowed by the Settlement Commission, or fails to comply with any other condition subject to which the immunity was granted and thereupon the provisions of this Act shall apply as if such immunity had not been granted. In view of the above clear-cut provisions of law in the matter, the action of the AO in invoking the penalty provisions is found valid. Further the search in this case was conducted on 03.09.2009 and the case is fully covered under the provision of Section 271AAA. The submissions of the appellant regarding wrongly assessing his share in M/s J.V. Trading ..... X X X X Extracts X X X X X X X X Extracts X X X X
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