2017 (3) TMI 1522

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.... Respondent Through: Mr. Aseem Chawla with Mr. Manu K. Giri, Advocate.   O R D E R The question of law urged by the Revenue in this case is "whether the penalty deleted by the Income Tax Appellate Tribunal (ITAT) was based upon an erroneous appreciation of the facts." The relevant and necessary facts are that after the conclusion of search on 25.02.2003 in the assessee's premises, it ....

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....on the basis of the addition made on the ground of enhanced GP rates. The CIT (A) and the ITAT have concurrently granted relief to the assessee. The Revenue urges that having regard to the express language of Section 158BFA (2), especially the second proviso thereof, in the circumstances, the ITAT could not have deleted the penalty. The Court is of the opinion that besides the fact that the ....

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....ecified in the notice, and - (a) where the return is furnished after the expiry of the time aforesaid, ending on the date of furnishing the return; or (b) where no return has been furnished, on the date of completion of assessment under clause (c) of section 158BC. (2) The Assessing Officer or the Commissioner (Appeals) in the course of any proceedings under this Chapter, may ....

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.... part of income which is shown in the return: Provided further that the provisions of the preceding proviso shall not apply where the undisclosed income determined by the Assessing Officer is in excess of the income shown in the return and in such cases the penalty shall be imposed on that portion of undisclosed income determined which is in excess of the amount of undisclosed income show....