2018 (11) TMI 1721 - AT - Income Tax

Tribunal dismisses revenue's appeal on penalty deletion & upholds assessee's objection.

Deputy Commissioner of Income-tax, Central Circle-1 (4), Kolkata Versus M/s. Cargo Solutions Pvt. Ltd. AND Vice-Versa

The Tribunal dismissed the revenue's appeal against the deletion of penalty under section 271AAB by the Ld. CIT(A). The assessee's cross objection ... Penalty levied u/s. 271AAB - whether no search was initiated in the case of the assessee company u/s. 132 - HELD THAT:- From the perusal of the record of the survey proceedings placed before us, we note that there was a survey proceedings at the premises of the assessee on 16.10.2012 and on a perusal of the notice issued by the AO dated 18.02.2015, reveals that the AO intended to invoke sec. 153C proceedings against the assessee. In such a scenario, we find force in the challenge raised by the assessee that without search being initiated u/s. 132 against the assessee, penalty provisions envisaged in sec. 271AAB cannot be initiated against the assessee. A perusal of the heading to the provision of sec. 271AAB reads as “penalty where search has been initiated” and on further perusal of the provision of section 271AAB it reveals about the assessee’s disclosure by statement u/s. 132(4) about any undisclosed income in the course of search. Admittedly, in the present case, there has been no search u/s. 132 of the Act. Search happened in the case of Ghanshyam Misra Group of cases on 16.10.2012 and admittedly there was survey proceeding u/s. 133A on 16.10.2012 against the assessee company. We note that the AO has not initiated any 153A proceeding pursuant to the search and in case if the assessee had been search u/s. 132 of the Act, then proceedings u/s. 153A of the Act should have been initiated against the assessee. In this case, from a perusal of the notice reveals that the AO has initiated 153C proceedings against the assessee. In the light of the aforesaid facts, we are of the considered opinion that the penalty u/s. 271AAB could not have been initiated by the AO since there has been no search on the assessee company. Therefore, the assessee succeeds and the very initiation of penalty proceeding u/s. 271AAB of the Act is quoram non judice and non-est in the eyes of law and is, therefore, quashed. Penalty proceedings u/s. 271AAB of the Act, the revenue appeal has become academic and infructuous. Therefore, we dismiss the revenue’s appeal and allow the Cross Objection of the assessee. Issues:1. Revenue's appeal against deletion of penalty u/s. 271AAB.2. Assessee's cross objection challenging penalty initiation without search u/s. 132.Analysis:1. The revenue appealed against the deletion of penalty u/s. 271AAB by the Ld. CIT(A). The issue revolved around the violation of Rule 46A of the I.T. Rules, 1962. The assessee's cross objection contended that penalty u/s. 271AAB should not have been levied as no search was initiated u/s. 132 of the Act in the case of the assessee company.2. The Tribunal decided to address the legal issue raised by the assessee in its cross objection. Despite opposition from the Ld. CIT, DR, the Tribunal admitted the legal issue based on the NTPC Vs. CIT decision. The challenge was regarding the initiation of penalty proceedings u/s. 271AAB without a search u/s. 132 against the assessee company.3. The facts revealed a survey operation against the assessee and subsequent 153C notice issued by the AO. The Tribunal noted the absence of a search u/s. 132 and the initiation of 153C proceedings instead of 153A. The Tribunal emphasized that penalty u/s. 271AAB requires a search initiation as per the Act, which was lacking in this case.4. The Tribunal observed that the penalty provision specifically mentions 'penalty where search has been initiated' and requires disclosure of undisclosed income during a search. As no search u/s. 132 occurred in the assessee's case, the penalty initiation was deemed unjustified. Citing a similar case precedent, the Tribunal quashed the penalty proceedings u/s. 271AAB.5. The Tribunal highlighted the absence of search action against the assessee company and the incorrect initiation of penalty proceedings. Consequently, the revenue's appeal was dismissed, and the assessee's cross objection was allowed. The legal issue raised by the assessee led to the dismissal of the revenue's appeal, rendering it academic and infructuous.6. In conclusion, the Tribunal dismissed the revenue's appeal and allowed the assessee's cross objection, pronouncing the order on 28th November 2018.