2013 (11) TMI 1326 - AT - Income Tax

Assessee's Appeal Allowed as Undisclosed Income Treated as Business Income

The Tribunal found that the assessee met the conditions under section 271AAA(2) by specifying and substantiating the undisclosed income's derivation, ... Penalty u/s 271AAA of the Income Tax Act - Search and seizure operation under section 132 of the Act was carried out on 13-01-2009 - During the course of search certain incriminating documents, jewellery and cash were found and seized - Return of income was filed u/s 139(1) on 26-09-2009 - The assessment was completed u/s 143(3) on 21-12-2010 and penalty was also initiated u/s 271AAA. During the search cash of Rs. 67 lakhs was found and seized. The assessee could not explain the source of cash found at the time of search. A statement u/s 132(4) of Shri Nitish Chordia, partner of Concrete Developers was recorded by which the assessee has offered for taxation an amount of Rs. 67 lakhs as unexplained cash and additional income of Rs. 1.53 crores in the hands of M/s Concrete Developers to cover up other discrepancies - Notice of penalty requiring assessee to show cause why penalty u/s 271AAA should not be levied was issued on 13-05-2011 – Held that:- During the course of assessment proceeding also, the assessee has explained the nature of income which was not disclosed before the search. It was explained that the independent income is to be assessed under the head business income and the AO has accepted this contention of the assessee as the assessment has been completed by taking the disclosed income under the head business income - It cannot be said that the assessee has not specified the manner or could not substantiate the manner in which the income was derived as the assessee has explained that this is an unexplained income of the assessee relates to firm which was doing only business activities - Except Rs.67 lakhs, no asset or material was found, however, the assessee has disclosed a sum of Rs.1.53 crores further for the reason that certain loose papers, which were found during the course of search and discrepancies in those papers could not be explained by the assessee, therefore, the assessee came forward to disclosed the total amount of Rs.2.21 crore, subject to non levy of penalty - Assessee has requested to cover his case under the exception clause of sub-section (2) of Section 271AAA of the Act - Assessee has satisfied the conditions for not levying the penalty under Section 271AAA – Reliance has been placed upon the judgment in the case of DCIT Vs. Pioneer Marbles & Interiors (P) Ltd [2012 (5) TMI 6 - ITAT KOLKATA]– Decided in favor of Assessee. Issues Involved:1. Legitimacy of the penalty under section 271AAA.2. Compliance with the conditions under section 271AAA(2).3. Substantiation of the manner of deriving undisclosed income.4. Treatment of disclosed income as business income.5. Jurisprudence and precedents relevant to section 271AAA.Issue-wise Detailed Analysis:1. Legitimacy of the penalty under section 271AAA:The primary issue in this case is the legitimacy of the penalty imposed under section 271AAA amounting to Rs. 22,10,000/-. The penalty was levied following a search and seizure operation under section 132, during which the assessee could not explain the source of cash found. The assessee declared Rs. 67 lakhs as unexplained cash and an additional Rs. 1.53 crores to cover other discrepancies. The Assessing Officer (AO) levied the penalty on the grounds that the assessee failed to specify and substantiate the manner in which the undisclosed income was derived.2. Compliance with the conditions under section 271AAA(2):Section 271AAA(2) specifies that no penalty shall be levied if the assessee (i) admits the undisclosed income, (ii) specifies the manner in which such income was derived, (iii) substantiates the manner, and (iv) pays the tax along with interest. The Tribunal noted that the assessee paid the tax and interest on the disclosed income, fulfilling one of the key conditions. The remaining conditions were scrutinized in light of the assessee's explanations and the AO's acceptance of the income as business income.3. Substantiation of the manner of deriving undisclosed income:The Tribunal examined whether the assessee substantiated the manner of deriving the undisclosed income. The assessee argued that the entire undisclosed income was business income, which was accepted by the AO during the assessment proceedings. The Tribunal found that the assessee's explanation and the AO's acceptance indicated that the manner of deriving the income was sufficiently substantiated.4. Treatment of disclosed income as business income:The assessee contended that the disclosed income should be treated as business income. The AO accepted this contention, assessing the disclosed amount under the head business income. The Tribunal upheld this treatment, noting that the disclosed income was indeed business income, which aligned with the assessee's explanation and the AO's assessment order.5. Jurisprudence and precedents relevant to section 271AAA:The Tribunal referred to several case laws to support its decision. It cited the Kolkata Bench of the Tribunal in DCIT Vs. Pioneer Marbles & Interiors (P) Ltd., which held that payment of tax before assessment completion satisfies the conditions under section 271AAA. The Tribunal also referenced the Hon'ble Supreme Court's decision in the case of Collector Land Acquisition v. Mst. Katiji, emphasizing substantial justice over technicalities. Additionally, the Tribunal considered the case of Ashok Kumar Sharma v. Dy. CIT, where similar facts led to the deletion of penalty under section 271AAA.Conclusion:The Tribunal concluded that the assessee satisfied the conditions under section 271AAA(2), including specifying and substantiating the manner of deriving the undisclosed income, which was treated as business income. Consequently, the penalty under section 271AAA was not leviable, and the Tribunal allowed the assessee's appeal, canceling the penalty. The judgment emphasized the importance of substantial justice and aligned with relevant jurisprudence, thereby providing a comprehensive resolution to the issues involved.