TaxTMI 
TaxTMI 
2015 (3) TMI 187
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....ms of income:- (a) Difference in remuneration received - Rs. 9.00 lakhs (b) Unaccounted expenditure on renovation of flat - Rs. 5.00 lakhs. 3. A search and seizure action u/s 132 of the Act was conducted in the hands of the assessee on 26-09-2000. The assessee filed her block return declaring undisclosed income at Rs. 26,17,283/-. The AO, however, determined the amount of undisclosed income at Rs. 1,58,41,635/-. The assessment order was challenged by the assessee before Ld CIT(A) and also before the ITAT. The Tribunal passed the order on 07.01.2010 confirming certain additions made by the AO. Subsequently, the assessing officer levied penalty u/s 158BFA(2) of the Act on the additions confirmed by the Tribunal, which inter alia, inc....
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....0/- and Rs. 5,00,000/-. In the quantum appellate proceedings, the Tribunal accepted the contention of the assessee that there were overlapping in noting down the expenditure incurred in respect of the above said three flats. Hence, considering the facts and circumstances of the case, the Tribunal estimated the cost incurred on interior decoration of all the three flats at Rs. 40.00 lakhs. Since the assessee had already disclosed Rs. 34,84,082/-, the Tribunal confirmed addition to the extent of Rs. 5.00 lakhs only. Against this addition also, the AO has levied penalty u/s 158BFA(2) of the Act. 6. Since the penalty has been levied u/s 158BFA(2) of the Act, we feel it pertinent to extract the said provision below:- "2. The Assessing Offi....
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...., the Tribunal has expressed the view that there is a discretion to the Assessing officer either to levy or not to levy penalty. In this regard, the decision rendered by the Chennai bench of Tribunal in the case of Ch. Suresh Reddy Vs. ACIT (120 TTJ 523) may be referred to. 8. With regard to the first issue, the Ld D.R submitted that the remuneration for the film was originally determined by the AO at Rs. 48.00 lakhs. However, the Tribunal after appreciating the seized materials has held that the assessee was to receive a remuneration of Rs. 36.00 lakhs. Accordingly, the Tribunal has sustained the addition of Rs. 9.00 lakhs holding that the assessee has received the same by way of cash. Since the tribunal is a fact finding authority and ....
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....he bonafides of the Assessee's stand established and in that case, the penalty is not exigible on those issues. For this proposition, the Ld A.R placed reliance on the decision rendered by the Mumbai bench of Tribunal in the case of ACIT Vs. Ekta Exports in IT(SS)A No.27/Mum/2011 dated 24.08.2012. 10. In the rejoinder, the Ld D.R submitted that the Tribunal has, in fact, considered the submissions relating to subsequent reduction of remuneration in paragraph 53 of the order and has rejected the same by holding the same to be an after thought. He further submitted that the Hon'ble Delhi High Court, in the case of CIT Vs. Splender Construction (2013)(352 ITR 588), has held that, when the order of the assessing officer in the quantum procee....
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....e amount of Rs. 9.00 lakhs in cash. Thus, we notice that the Tribunal has considered all the submissions made by the assessee, the seized material, surrounding circumstances, conduct of the assessee's father who maintained the record and finally has given a finding that the remuneration was Rs. 36.00 lakhs. Under these set of facts, we are unable to agree with the contention of the Ld A.R as well as with the view expressed by Ld CIT(A) that the addition of Rs. 9.00 lakhs has been sustained on estimate basis. In our view, the above said addition has been sustained on the basis of seized material only. Hence, we are of the view that the assessing officer was justified in levying penalty on the above said addition u/s 158BFA(2) of the Act. ....