2019 (5) TMI 1262 - AT - Income Tax

Appeals Allowance: Penalties under Income Tax Act Section 271AAB Set Aside

Shri Karmashibhai G. Aghara, Shri Narshibhai G. Aghara, Shri Bharatbhai T. Aghara, Shri Kapilbhai Karamshibhai Aghara Versus The ACIT Central Circle-1 Rajkot

Shri Karmashibhai G. Aghara, Shri Narshibhai G. Aghara, Shri Bharatbhai T. Aghara, Shri Kapilbhai Karamshibhai Aghara Versus The ACIT Central Circle-1 ... Issues Involved:1. Levy of penalty under section 271AAB of the Income Tax Act, 1961.2. Conditions for the applicability of section 271AAB.3. Definition and scope of 'undisclosed income' under section 271AAB.4. Validity of penalty imposition without incriminating material.Detailed Analysis:1. Levy of Penalty under Section 271AAB:The primary issue in the appeals was the levy of penalty under section 271AAB of the Income Tax Act, 1961. The Assessing Officer (AO) imposed penalties on the additional income declared by the assessees during a search action under section 132 of the Act. The penalties were initially proposed under section 271AAA but later corrected to section 271AAB. The AO imposed a penalty of 10% of the additional income declared.2. Conditions for the Applicability of Section 271AAB:The assessees contended that the conditions of section 271AAB were not satisfied. They argued that the additional income declared was not 'undisclosed income' as defined under the section. The Tribunal examined whether the statutory conditions for imposing penalties under section 271AAB were met.3. Definition and Scope of 'Undisclosed Income' under Section 271AAB:The Tribunal referred to the statutory definition of 'undisclosed income' under section 271AAB, which includes income represented by money, bullion, jewellery, or other valuable articles not recorded in the books of account or disclosed to the tax authorities before the search. The Tribunal noted that the additional income declared by the assessees was on an ad-hoc basis and not backed by any tangible items or incriminating material found during the search.4. Validity of Penalty Imposition without Incriminating Material:The Tribunal emphasized that for the imposition of penalty under section 271AAB, there must be a reference to incriminating material found during the search. In the present cases, the AO did not make any reference to such material, and the additional income was declared voluntarily to avoid litigation and buy peace of mind. The Tribunal relied on previous decisions, including those of the Co-ordinate Bench and the Hon’ble Delhi High Court, which held that ad-hoc declarations without incriminating material do not constitute 'undisclosed income' for penalty purposes.Conclusion:The Tribunal concluded that in the absence of any incriminating material, the penalties imposed under section 271AAB were not sustainable. The AO's penalty orders were set aside, and the penalties were directed to be deleted. The appeals of the assessees were allowed, and the penalties imposed in all four cases were deleted.Combined Result:All four captioned appeals were allowed, and the penalties imposed under section 271AAB were deleted.Pronouncement:This order was pronounced in Open Court on 16/05/2019.