2024 (3) TMI 1417 - AT - Income Tax

Penalty under section 271AAB cannot be sustained where voluntary disclosure under section 153A used as ad hoc estimate

M/s. Enrica Enterprises Pvt. Ltd. Versus The Dy. Commissioner of Income Tax, Central Circle-3 (4), Chennai.

M/s. Enrica Enterprises Pvt. Ltd. Versus The Dy. Commissioner of Income Tax, Central Circle-3 (4), Chennai. - [2025] 125 ITR (Trib) 340 ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in this judgment include:Whether the penalty under Section 271AAB of the Income Tax Act, 1961, is mandatory or discretionary.Whether the penalty proceedings initiated under Section 271AAB were valid given the alleged defects in the show cause notice.Whether the additional income declared by the assessee qualifies as 'undisclosed income' as per Explanation-C to Section 271AAB.Whether the Assessing Officer (AO) properly applied the provisions of Section 271AAB in levying the penalty.ISSUE-WISE DETAILED ANALYSIS1. Mandatory vs. Discretionary Nature of Penalty under Section 271AABThe Tribunal examined whether the penalty under Section 271AAB is mandatory. It noted that the provision uses the word 'may,' indicating discretion rather than compulsion. The Tribunal emphasized that penalties are not automatic but depend on the facts and circumstances of each case. The Tribunal referred to various precedents to support its interpretation that the penalty is discretionary and not mandatory.2. Validity of Penalty Proceedings and Show Cause NoticeThe Tribunal scrutinized the validity of the penalty proceedings initiated under Section 271AAB, focusing on the show cause notice issued by the AO. It was argued that the notice was defective as it did not specify under which sub-clause of Section 271AAB the penalty was being levied. The Tribunal agreed with this contention, citing the requirement for the AO to clearly specify the charge under which the penalty is being imposed to enable the assessee to effectively respond. The Tribunal found the notice to be vague and lacking specificity, rendering the penalty proceedings invalid.3. Definition of 'Undisclosed Income' under Section 271AABThe Tribunal assessed whether the additional income declared by the assessee could be classified as 'undisclosed income' under Explanation-C to Section 271AAB. The Tribunal noted that for income to be considered 'undisclosed,' it must be unrecorded in the books of accounts or falsely recorded as an expense. In this case, the Tribunal found that the additional income declared by the assessee was based on an estimated disallowance of marketing expenses and was not linked to any specific incriminating material found during the search. Therefore, the Tribunal concluded that the declared income did not meet the criteria for 'undisclosed income.'4. Application of Section 271AAB by the AOThe Tribunal evaluated the AO's application of Section 271AAB in levying the penalty. It found that the AO's decision was primarily based on the voluntary surrender of income by the assessee rather than on concrete evidence of undisclosed income. The Tribunal emphasized that the mere surrender of income does not automatically qualify it as 'undisclosed income' under Section 271AAB. The Tribunal highlighted the lack of specific evidence linking the surrendered income to any falsified entries or unrecorded transactions for the specified previous year.SIGNIFICANT HOLDINGSThe Tribunal established several core principles and final determinations:The penalty under Section 271AAB is discretionary, not mandatory, and depends on the specific facts and circumstances of each case.The show cause notice issued under Section 271AAB must clearly specify the sub-clause under which the penalty is being levied to provide the assessee with a fair opportunity to respond.The additional income declared by the assessee does not qualify as 'undisclosed income' under Explanation-C to Section 271AAB, as it was not linked to any specific falsified entries or unrecorded transactions.The AO's levy of penalty based on the voluntary surrender of income without concrete evidence of undisclosed income was deemed inappropriate.The Tribunal set aside the order of the CIT(A) and directed the AO to delete the penalty levied under Section 271AAB.The Tribunal's decision underscores the importance of adhering to procedural requirements and ensuring that penalties are imposed based on substantive evidence rather than mere admissions or estimates. The judgment emphasizes the necessity for clear and specific communication in penalty proceedings to uphold the principles of natural justice.