2019 (5) TMI 738 - AT - Income Tax

Appeal allowed, penalty under Section 271AAA deleted for disclosed income. CIT(A) decision overturned.

The Tribunal allowed the appeal filed by the assessee, deleting the penalty imposed under Section 271AAA of the Income Tax Act. It held that the assessee ... Penalty under section 271AAA - disclosure under section 132(4) during search - immunity from penalty where surrendered income is disclosed in return and accepted/assessed - deemed income under section 69APenalty under section 271AAA - disclosure under section 132(4) during search - immunity from penalty where surrendered income is disclosed in return and accepted/assessed - Whether penalty under section 271AAA is leviable in respect of amounts surrendered during search when the surrender was disclosed in the return, taxes thereon paid and the surrender accepted/assessed by the Revenue. - HELD THAT: - The Tribunal held that where undisclosed income surrendered during the course of search under section 132(4) is disclosed in the return, included in assessment and taxes paid, the conditions for immunity from penalty under section 271AAA are satisfied. Reliance was placed on earlier decisions of the Tribunal which held that mere failure to specify the detailed manner of earning the surrendered income does not disentitle the assessee to immunity where the surrender has been made, returned and accepted by the assessing authority. The CIT(A)'s segregation of the cash component as assessable as deemed income under section 69A was found to be incorrect in the facts of this case because the cash was not separately assessed under section 69A and formed part of the surrender accepted and assessed by the Revenue; therefore no principled basis existed to sustain penalty on that component while deleting penalty on other parts of the surrender.Penalty under section 271AAA confirmed by the CIT(A) is deleted and the appeal is allowed.Final Conclusion: The Tribunal allowed the assessee's appeal, deleting the penalty under section 271AAA in respect of the surrender (including the cash component) because the surrendered amounts were disclosed under section 132(4), included in the return, assessed/accepted by the Revenue and taxes paid, thereby attracting immunity from penalty. Issues Involved:1. Levy of penalty under Section 271AAA of the Income Tax Act, 1961.2. Substantiation of the manner in which undisclosed income was earned.3. Classification of surrendered income as deemed income under Section 69A or business income.Issue-wise Detailed Analysis:1. Levy of Penalty under Section 271AAA:The primary issue in this appeal was the levy of penalty under Section 271AAA of the Income Tax Act, 1961, on cash surrendered during a search conducted under Section 132 of the Act. The assessee had surrendered an additional income of Rs. 38,87,500, which included cash, documents, capital introduced in firms, and jewelry. The Revenue accepted this surrender but levied a penalty under Section 271AAA, arguing that the assessee failed to substantiate the manner in which the undisclosed income was earned.2. Substantiation of the Manner of Earning Undisclosed Income:The CIT(A) upheld the penalty for the cash and jewelry portions of the surrendered amount, citing that the assessee did not specify and substantiate the manner of earning this income. The CIT(A) referenced the ITAT Chandigarh Bench's decision in DCIT Vs. Shri Sanjeev Goyal, which held that if the assessee disclosed income during a statement under Section 132(4), paid taxes, and showed the income in the return, no penalty under Section 271AAA was leviable. However, the CIT(A) distinguished the cash and jewelry portions, stating they were assessable as deemed income under Section 69A and not as business income, thereby justifying the penalty.3. Classification of Surrendered Income:The CIT(A) relied on the jurisdictional High Court's decision in Kim Pharma Pvt. Ltd. Vs. CIT, which held that unexplained cash found during a search is assessable as deemed income under Section 69A and not as business income. The CIT(A) concluded that the assessee did not provide an explanation for the source of the cash and jewelry, thus upholding the penalty. However, the ITAT Chandigarh Bench, in the cases of Shri Ashok Jindal Vs. DCIT & Others and Shri Amit Jindal Vs. DCIT, found that the entire surrendered amount, including cash, was accepted and assessed to tax by the Revenue without being separately classified under Section 69A. The Tribunal held that the assessee had fulfilled all conditions for immunity from penalty under Section 271AAA, as the income was disclosed during the search, included in the return, and taxes were paid.Judgment:The Tribunal noted that the CIT(A) had wrongly segregated the cash portion of the surrender and upheld the penalty without basis. The Tribunal deleted the penalty, stating that no distinction was made between the cash and other surrendered amounts, and all conditions for immunity under Section 271AAA were met. Consequently, the appeal filed by the assessee was allowed, and the penalty was deleted.Conclusion:The Tribunal concluded that the assessee had complied with all necessary conditions for immunity from penalty under Section 271AAA, and there was no basis for the CIT(A) to uphold the penalty on the cash and jewelry portions of the surrendered income. The appeal was allowed, and the penalty was deleted.