9911796707
TMI Blog2024 (11) TMI 1096X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld the Assessing Officer's treatment of the assessee's case as that of recording of false in the books of accounts u/s 270A(9)(d) of the Act as the assessee admitted to disallow cash payments of Rs. 65,28,28,100/- made to M/s Aurora Educational Society vide his statement recorded during search proceedings. 3. The Ld.CIT(A) ought to have appreciated the fact that in order to escape from the penal provisions of dealing in cash the assessee disguised and camouflaged the cash payments of Rs. 4,83,51,191/- under the head "Development Expenses" and "Site Salaries" in the books of accounts. 4. The appellant craves leave to amend or alter any ground or add any other grounds which may be necessary. 3. Brief facts of the case are that a search and seizure operation u/s 132 of the Income tax Act, 1961 ("the Act") was conducted in the case of M/s Aurora Educational Society & Other groups, in which assessee was also covered. During the course of search at the premises of M/s Incredible India Projects Pvt. Ltd., certain cash receipts and cash vouchers in respect of cash payments made to M/s Aurora Educational Society for purchase of immovable properties were found and seized vide Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undisclosed income as per provisions of 271AAB (1A) of the Act. 5. Aggrieved by the penalty orders, assessee preferred appeal before the CIT(A) and challenged the penalty levied by the Assessing Officer on additional income offered towards cash payments made for purchase of immovable property and admitted in the return of income filed in response to notice u/s 153A of the Act. The assessee had also filed detailed written submission on the issue which has been reproduced at para 6.1 of the order of the Ld.CIT(A) for both the assessment years. Ld.CIT(A) after considering the submissions of the assessee and also by following certain judicial precedents held that cash paid towards purchase of immovable properties and debited under the heads "Development Expenses" and "Site Expenses" has been admitted as additional income while filing the return of income u/s 153A of the Act. Therefore, it is not a case of recording any false entry in the books of accounts and further the Assessing Officer has not made out a case that these expenses were not actually incurred and were falsely claimed by the appellant. Further, it is only the case of admitting income on the basis of deeming provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice before the Ld.CIT(A) by way of written submission, although the Ld.CIT(A) has not decided the issue while adjudicating the appeal, but the appellant can very well support the order of the Ld.CIT(A) on the points which has been decided against the assessee. Therefore, submitted that the penalty levied by the Ld.AO on the basis of vague notice without specifying any limb under which the said penalty is attracted cannot be sustained under law and needs to be deleted. 9. Learned Counsel for the assessee further submitted that even otherwise penalty levied by the Assessing Officer u/s 270A of the Act, in respect of additional income offered by the assessee in the return of income u/s 153A does not fall under the category of under reporting of income which is in consequence of mis reporting, because the assessee has accounted cash payments in its books of account before the date of search, however, offered additional income under deeming provisions of section 40A(3) of the Act. Further penalty u/s 271AAB of the Act is also not applicable for the A.Y.2018-19, because additions made by the Assessing Officer does not fall under the definition of undisclosed income. Therefore, Ld.CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld.CIT(A), it has been reproduced at para 6.1 of the order of the Ld.CIT(A), we find that, although there is no specific grounds of appeal before the Ld.CIT(A) on this issue, but in the written submissions, the assessee has challenged the penalty levied by the Assessing Officer on the basis of vague notice, without specifying the limb under which the said penalty is levied. From the above, it is clear that the assessee has raised the issue of notice u/s 274 r.w.s. 270A/271AAB and the validity of said notice in light of certain judicial precedents and argued that in the absence of specific limb under which penalty is levied whole penalty proceedings becomes vitiated and liable to be quashed. 13. There is no dispute, Ld.CIT(A) has not adjudicated the legal issue raised by way of written submission. However, the question before us is whether the assessee can raise the said plea before the Tribunal by way of application under Rule 27 of ITAT Rules, 1963 or not. This issue is no longer res-integra. Hon'ble Madras High Court in the case of CIT Vs. India Cement Ltd. (supra) had considered identical issue and held that, once the assessee raised an issue before the CIT(A), which was no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
