2017 (8) TMI 1291 - AT - Income Tax

Tribunal remands appeals for fresh decision stressing consistency & thorough consideration. Assessee's right to be heard upheld.

The Tribunal set aside the CIT(A)'s decisions and remanded the appeals for a fresh decision, emphasizing the importance of consistency and thorough ... Penalty u/s 271AAA - income was duly included into the return filed in pursuance to the notice issued U/s 153A - statement U/s 132 of the Act admitted undisclosed income - Held that:- the assessee in his statement U/s 132 of the Act admitted undisclosed income and specified the manner in which such income was derived, which is evident from the reply to question No. 16 recorded during the course of search. The revenue has not disputed the fact that the assessee had paid tax together with the interest if any in respect of the undisclosed income, therefore, out of the three conditions for immunity against the penalty under sub-section (i) of Section 271AAA of the Act are duly specified in the present case. As in answer to question No. 16 of the sworn statement recorded on oath u/s 132(4) of the Act has clearly specified the manner of deriving undisclosed income. Therefore, when assessee has complied with Sub section (2) of section 271 AAA of the Act, AO’s action cannot be justified and sustained. In the present case, he has sustained the penalty on the ground that the assessee has failed to substantiate the manner in which the undisclosed income was derived. The facts are identical and arise from the same search, therefore, the finding of the ld. CIT(A) is contradictory. Under these facts and circumstances, we restore this appeal to the file of the ld. CIT(A) for decision afresh. Issues Involved:1. Imposition and confirmation of penalty under Section 271AAA of the Income Tax Act.2. Deletion of penalty under Section 271AAA by the CIT(A).Detailed Analysis:Issue 1: Imposition and Confirmation of Penalty under Section 271AAAThe first issue pertains to the assessee's appeal against the imposition and confirmation of a penalty of Rs. 24,41,026 under Section 271AAA of the Income Tax Act. The search and seizure operation conducted at the residential and business premises of the Bhamboo group led to the discovery of incriminating documents. The assessee filed a return declaring an income of Rs. 3,10,68,140, which included an undisclosed income of Rs. 2,41,29,870. The assessment was completed adding Rs. 2,80,392 for unexplained jewelry, and a penalty was initiated under Section 271AAA.The assessee contended that the authorities erred in imposing the penalty without appreciating the facts correctly. The penalty was argued to be contrary to the spirit of Section 271AAA, as the assessee had included the surrendered income in the return and had replied appropriately during the search. The revenue, however, maintained that the assessee failed to substantiate the manner in which the undisclosed income was derived, justifying the penalty imposition.Issue 2: Deletion of Penalty under Section 271AAA by the CIT(A)The second issue involves the revenue's appeal against the CIT(A)'s decision to delete a penalty of Rs. 51,66,579. The CIT(A) had deleted the penalty on the grounds that the assessee had fulfilled the conditions under Section 271AAA(2), which include admitting the undisclosed income, specifying the manner of its derivation, and paying the due tax and interest.The Tribunal examined the provisions of Section 271AAA, which provides that no penalty shall apply if the assessee admits the undisclosed income, specifies and substantiates the manner of derivation, and pays the tax with interest. The Tribunal noted that the assessee had admitted the undisclosed income and specified its derivation during the search. The assessee’s payment of tax on this income was not disputed.The CIT(A) had previously deleted the penalty for another assessee from the same search operation, citing that the assessee had specified the manner of deriving the income as from business operations, and no specific questions were raised during the search about the manner of derivation. The Tribunal found this reasoning consistent with judicial precedents, which hold that the absence of specific queries during the search does not invalidate the specification of the manner of income derivation.Tribunal's Decision:The Tribunal observed that the CIT(A) had contradictory findings in similar cases arising from the same search operation. Therefore, the Tribunal restored the appeals to the CIT(A) for a fresh decision, ensuring consistency and considering all facts and materials on record. The Tribunal directed that the CIT(A) provide sufficient opportunity for the assessee to be heard.Conclusion:In conclusion, the Tribunal set aside the orders of the CIT(A) and restored the appeals for a fresh decision, emphasizing the need for consistency and thorough consideration of all relevant facts and materials. The appeals were allowed for statistical purposes only.Order pronounced in the open court on 14/06/2017.