TaxTMI 
TaxTMI 
2016 (9) TMI 1443
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....fied, arbitrary and deserves to be deleted." 2. The assessee in this case is an individual earning salary. During the course of search operations at the residential premises, cash and jewellery were found and seized. For the levy of penalty u/s 271AAA the AO observed as under : " The returned income of the assessee of Rs. 43,36,490/- includes an income of Rs. 26,67,000/- under the head "other income". This other income is on account of excess gold and diamond jewellery found during the course of search and seizure operations as discussed above. During the course of statement u/s 132(4) the assessee had admitted excess jewellery in his possession subject to certain reconciliation. The amount of excess jewellery offered after such reconcili....
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.... AO is held to be in order. The order of the AO is confirmed. In the result, the appeal filed by the assessee is dismissed." 4. Against the above order, the assessee is in appeal before the ITAT. 5. I have heard both the counsel and perused the records. Learned counsel of the assessee submitted that penalty u/s 271AAA should not be levied in this case. For this proposition, he made the reference to following case laws as under : "1. CIT vs. Mahendra C. Shah 299 ITR 305 (Guj.). 2. CIT vs. Radhakisan Goel 278 ITR 454 (All.). 3. Concrete Developers vs. ACIT 34 Taxmann.com 62 (Nagpur Trib.) 4. ACIT vs. V. Nandini Realtors Pvt. Ltd. (ITA No. 415/Nag/2015) Nagpur Trib.). 5. The above judgments of Hon'ble Gujarat and Allahabad High Courts h....
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....sum computed at the rate of ten per cent of the undisclosed income of the specified previous year. (2) Nothing contained in sub-section (1) shall apply if the assessee,- (i) in the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived; (ii) substantiates the manner in which the undisclosed income was derived; and (iii) pays the tax, together with interest, if any, in respect of the undisclosed income. (3) No penalty under the provisions of clause (c) of sub-section (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1). (4) The provisions of sec....
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....rch was conducted.] 7. I may also refer to provisions of section 273B which provides that penalty need not be imposed in certain cases as under : 273B. Notwithstanding anything contained in the provisions of 32[clause (b) of subsection (1) of] 33[section 271, section 271A, 34[section 271AA,] section 271B 34[, section 271BA], 35[section 271BB,] section 271C, 36[section 271CA,] section 271D, section 271E, 37[section 271F, 38[section 271FA,] 39[section 271FB,] 40[section 271G,]] 41[section 271H,] clause (c) or clause (d) of sub-section (1) or sub-section (2) of section 272A, sub-section (1) of section 272AA] or 42[section 272B or] 43[subsection (1) 44[or sub-section (1A)] of section 272BB or] 45[sub-section (1) of section 272BBB or] clause (....
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....n the said decision the Tribunal has noted the assessee's statement and found that the same clearly showed that the assessee has requested to cover his case under the exception clause of sub-section (ii) of section 271AAA of the Act. The Tribunal opined that this part of the statement should be read as harmoniously and should be taken as assessee satisfied the condition for not levying the penalty u/s 271AAA. In the present appeal I do not find that there could be any harmonious reading of the assessee's statement vis-a-vis levy of penalty u/s 271AAA. In the case law from Ahmadabad Tribunal in the case of Rajendra Prasad Dhoknia (supra) the assessee has stated that the assessee was disclosing Rs. 50 lakhs representing net on-money receipt ....