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Megha Prakash Chaudhari, Nashik v/s Income-Tax Officer, (Central)-I

    ITA No. 741/PUN of 2016

    Decided On, 25 October 2018

    At, Income Tax Appellate Tribunal Pune

    By, THE HONOURABLE MS. SUSHMA CHOWLA
    By, JUDICIAL MEMBER & THE HONOURABLE MR. ANIL CHATURVEDI
    By, ACCOUNTANT MEMBER

    For the Appellant: Kishore Phadke, Advocate. For the Respondent: Rajesh Gawli, Advocate.



Judgment Text

Sushma Chowla, JM:

1. Both the appeals filed by related assessee are against separate orders of CIT(A)-12, Pune both dated 18.01.2016 relating to assessment year 2012-13 against penalty levied under section 271AAA of the Income-tax Act, 1961 (in short 'the Act').

2. Both the appeals relating to related persons on similar issue were heard together and are being disposed of by this consolidated order for the sake of convenience. However, in order to adjudicate the issues, reference is being made to the facts and issues in ITA No.741/PUN/2016.

3. The assessee in has raised the following ground of appeal:-

On the facts and in the circumstances of the case and in law, the Lower Authorities have erred in levying the penalty u/s. 271AAA to the extent of amount of sum of Rs.2,00,000/- by disregarding appellant's contention.

4. The issue raised in the present appeal is against levy of penalty under section 271AAA of the Act.

5. Briefly, in the facts of the case, search and seizure action under section 132 of the Act was conducted in Chaudhari Group of cases, Nashik on 21.03.2012. The assessee pertains to said group of cases. The residential premises of assessee was searched under section 132 of the Act and survey action was also carried out under section 133A of the Act at the business premises of assessee. Certain documents were seized and statements of assessee and his employees were recorded during the course of search. The assessee was in the business of land de

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velopment and building construction and also derived income from other source. The assessee during the course of search and seizure action had surrendered additional income of Rs. 2.50 crores in different years in the hands of group cases i.e. himself and his wife, who were both carrying on the business. The assessee filed the return of income declaring total income of Rs. 45,62,534/-. The Assessing Officer noted that the assessee had disclosed additional income of Rs. 20 lakhs on account of additional stock. The Assessing Officer observed that additional income was declared as a result of search action, then penalty proceedings under section 271AAA of the Act were to be separately initiated. During the course of penalty proceedings, the assessee explained that the assessee had paid taxes together with interest in respect of additional income disclosed and it was also explained that additional income was of the firm which was only doing business. Therefore, it could not be said that the assessee had not specified the manner or could not substantiate the manner in which the income was derived as the income related to firm which was only doing business activities. The Assessing Officer referred to provisions of section 271AAA of the Act and observed as under:-

"06. During the year under consideration, while filing the return of income in response to notice u/s 142(1) assessee has disclosed additional income of Rs.20,00,000/- on account of additional stock and accordingly the income is declared at Rs.45,62,534/-. Since, the additional income of Rs.20,00,000/- is declared by the assessee as result of search action penal proceedings u/s 271AAA are separately initiated."

6. The Assessing Officer thus, levied penalty of Rs. 2 lakhs @ 10% of undisclosed income of Rs. 20 lakhs, under section 271AAA of the Act.

7. The CIT(A) has upheld the levy of penalty rejecting the contention of assessee that additional income was on account of under-valuation of stock and there were no changes in purchases, hence no merit in levy of penalty. The CIT(A) upheld the order of Assessing Officer on the ground that assessee had failed to furnish details as to the source of earning such additional income. The CIT(A) also noted that no specific declaration was made for the year under consideration in respect of this income and the assessee has failed to substantiate the manner of earning additional income and hence, there was justification in levy of penalty under section 271AAA of the Act.

8. The assessee is in appeal against the order of CIT(A).

9. The learned Authorized Representative for the assessee pointed out that as against offer of total additional income of Rs. 2.50 crores which was made in the return of income, the assessee in his hands declared additional income of Rs. 1.24 crores and his wife Megha P. Chaudhari declared additional income of Rs.1.73 crores majorly which were on the basis of documents found during the course of search. Further, additional stock of Rs. 20 lakhs was declared by assessee and Rs. 35 lakhs by his wife Megha P. Chaudhari. The said additional income was offered not because of any documents found on account of unaccounted purchases but was offered on account of increased valuation of stock. He further stated that once the assessee had made its offer of additional income, which was made during the course of search, then additional income once added in the hands of assessee could at best attract the levy of penalty under section 271(1)(c) of the Act. However, there was no merit in levy of penalty under section 271AAA of the Act as the offer of additional stock was not on the basis of any documents found during the course of search. He also referred to the definition of 'undisclosed income' as defined in Explanation (a) under section 271AAA of the Act, which talked of undisclosed income found during the course of search represented by some asset, valuable article or thing but additional income offered by assessee does not fall within the said definition. He stated that this plea of assessee was de hors plea of immunitypart as propagated before the authorities below for non levy of penalty under section 271AAA of the Act. In this regard, he placed reliance on the ratio laid down by the Delhi Bench of Tribunal in Mahavir Prasad Jaipuria Vs. ACIT (2017) 167 ITD 253 (Delhi - Trib.). He further pointed out that assuming the additional income related to documents, which were found and was offered as additional income and the assessee had paid taxes, then the same can only be business income in the hands of assessee as no other activity is being carried on by the assessee, hence even otherwise, there was no merit in levy of penalty under section 271AAA of the Act.

10. The learned Departmental Representative for the Revenue on the other hand, referred to para 6 of assessment order, wherein the Assessing Officer has discussed addition on account of additional income offered and then, he referred to para 8 of order imposing penalty under section 271AAA of the Act. He stressed that observations in the said orders were that the assessee declared additional income during search and it cannot be said that it was not found during the course of search. He placed reliance on the ratio laid down by the Hon'ble High Court of Delhi in Pr.CIT Vs. Smt. Ritu Singal in ITA No.672/2016, judgment dated 12.03.2018 and he stressed that where the assessee has not substantiated the manner in which additional income was earned, then there is no immunity from levy of penalty under section 271AAA of the Act.

11. The learned Authorized Representative for the assessee in rejoinder stated that additional income though related to the year of search but during the course of search noting was found from the premises of assessee, which reflected that it was additional income found during the course of search. He again reiterated that additional income was offered not on the basis of anydocuments found during the course of search but on revaluation of stock, for which no evidence justifying the revaluation of stock was found during the course of search.

12. We have heard the rival contentions and perused the record. The issue which arises in the present appeal is against levy of penalty under section 271AAA of the Act. Section 271AAA of the Act along with Explanation reads as under:-

"271AAA. Penalty where search has been initiated.--

(1) The Assessing Officer may, notwithstanding anything contained in any other provisions of this Act, direct that, in a case where search has been initiated under section 132 on or after the 1st day of June, 2007, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him, a sum computed at the rate of ten per cent of the undisclosed income of the specified previous year.

(2) Nothing contained in sub-section (1) shall apply if the assessee,--

(i). In the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived;

(ii). Substantiates the manner in which the undisclosed income was derived; and

(iii). Pays the tax, together with interest, if any, in respect of the undisclosed income.

(3). No penalty under the provisions of clause (c) of sub-section (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1).

(4). The provisions of sections 274 and 275 shall, so far as may be, apply in relation to the penalty referred to in this section.

Explanation.--For the purposes of this section,--

(a). "undisclosed income" means--

(i). any income of the specified previous year represented, either wholly or partly, by any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or other documents or transactions found in the course of a search under section 132, which has--

(A) not been recorded on or before the date of search in the books of 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 for such year has not expired before the date of search and the assessee has not furnished the return of income for the previous year before the said date; or

(ii). In which search was conducted.'."

13. Main section provides that where search has been initiated under section 132 of the Act on or after 1st day of June, 2007 but before 1st day of July, 2012 and then the assessee as per order of Assessing Officer, shall pay by way of penalty, in addition to tax, if any, payable by him, a sum computed at the rate of 10% of undisclosed income of specified previous year. Sub-section (2) further provides that nothing contained in sub-section (1) shall apply where the assessee in the course of search in the statement recorded under section 132(4) of the Act admits undisclosed income and specifies manner in which such income was derived; substantiate the manner in which undisclosed income was derived; and pays taxes together with interest, if any, in respect of undisclosed income. Sub-section (3) further lays down that no penalty under section 271(1)(c) of the Act shall be imposed upon assessee in respect of undisclosed income referred to in sub-section (1). Clause (a) of Explanation defines undisclosed income, which means income represented either or partly by any money, bullion, jewellery or other valuable article, thing, or any entry in the books of account or other documents or transactions found during the course of search under section 132 of the Act. In other words, income should be on account of any asset found during search or any entry in the books of account or documents or transactions found in the course of search under section 132 of the Act, which relates to specified previous year i.e. year of search or / and the year which is ended before the date of search but the date of filing the return of income under section 139(1) of the Act has not expired before the date of search and where the assessee has not furnished return of income for the said previous year.

14. Applying the said provisions to the facts of present case, the additional income had been offered by the assessee on account of valuation of stock. It is not case of the Department that any unaccounted stock was found during the course of search or any entry was found in any document or transaction or the books of account, during the course of search, which depicts the said stock. The assessee on the other hand, had not modified the quantity of stock but had declared additional income on account of valuation of stock, which had been recorded in books of account. Such disclosure made by assessee in the return of income filed for the search year was not on account of any surrender made at the time of assessment and at best was additional income offered on appraisal of totality of facts of the case. The basic condition of additional income being offered on the basis of seized document during the course of search had not been fulfilled in the present case. In this regard, we find support from the ratio laid down by the Delhi Bench of Tribunal in Mahavir Prasad Jaipuria Vs. ACIT (2017) 167 ITD 253 (Delhi - Trib.), wherein it was held that where the amount was not surrendered at the time of search but was surrendered subsequently during course of assessment proceedings; as per specific provisions of section 271AAA of the Act, said amount did not specifically fall under definition of 'undisclosed income' found during course of search, thus, levy of penalty was not justified.

15. The learned Departmental Representative for the Revenue has placed reliance on the ratio laid down by the Hon'ble High Court of Delhi in Pr.CIT Vs. Smt. Ritu Singal (supra), wherein the issue was decided on additional income offered during course of search and penalty proceedings were initiated under section 271AAA of the Act in respect of such undisclosed income found during course of search and declared by assessee in the return of income. The facts of the said case are at variance and are not applicable to the facts of present case. Hence, reliance placed upon by the learned Departmental Representative for the Revenue is not warranted.

16. Consequently, we hold that the assessee is not exigible to levy of penalty under section 271AAA of the Act. In such circumstances, where the conditions of section 271AAA of the Act have not been fulfilled i.e. additional income does not fulfill the definition of 'undisclosed income' provided in section 271AAA of the Act, there is no merit in holding the assessee liable to levy of aforesaid penalty. Accordingly, we hold so. The Assessing Officer is thus, directed to delete penalty levied under section 271AAA of the Act. The ground of appeal raised by assessee is thus, allowed.

17. The facts and issues in ITA No.748/PUN/2016 are identical to the facts and issues in and our decision in shall apply mutatis mutandis to ITA No.748/PUN/2016.

18. In the result, both the appeals of assessee are allowed.

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