TaxTMI 
TaxTMI 
TaxTMI 
2018 (10) TMI 1698
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.... The grounds raised by the Revenue read as follows: 1. The Ld.CIT(A) has erred in law and on facts in deleting the penalty of Rs. 92,90,000/- imposed under section 271AAA of the I.T Act, 1961, ignoring the fact that the assessee has not satisfied the conditions laid down in section 271AAA(2)(ii) and 271AAA(2)(iii) of the Act. 2. The Ld. CIT(A) has not appreciated that section 271AAA(2) casts the onus on the assessee to admit, specify and substantiate the undisclosed income and pay tax and interest thereon. The Income tax Act does not cast the onus on the Assessing officer to establish the source of unaccounted income. 3. The cross objections of the assessee read as follows: 1. On the facts and circumstances of the case the ld. CI....
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....ht in granting relief to the assessee after considering entire facts and circumstances of the case and by following the ratio of the decision of Hon'ble High Court of Gujarat in the case of CIT vs. Mahendra C. Shah reported in 99 ITR 305 (Guj.) and hence, first appellate order may kindly be upheld by dismissing appeal of the Revenue. 5. On careful consideration of above rival submissions, firs of all, we may point out that the ld. CIT(A) has granted relief to the assessee with following observations and findings. "6.1 The penalty u/s.271AAA of the Act was initiated by the Assessing Officer which as been levied also on the ground that the appellant company neither during the assessment proceedings, nor during the penalty proceedings....
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....cisions mentioned supra.On careful consideration of the facts, it is seen that the disclosure was made by the appellant u/s.132(4) of the Act of Rs. 9.29 crores as undisclosed income of the appellant company earned outside the books during A.Y. in question. The manner of earning such income has been clearly stated as derived from the construction business of the appellant company which was run in the name of "Swastik Universal", which was a residential complex. The condition envisaged in sub section (i) of section 271AAA(2) is satisfied because the manner of earning undisclosed income has been clearly stated. 6.3 As regards sub section (ii) of section 271AAA(2) of the Act, it is seen that the undisclosed income declared during the search....
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....h (99 ITR 305), was delivered in context of penalty u/s.271(1)(c) of the Act, but the contents are perameteria to the conditions of section 271AAA of the Act and following that decision, many courts have given the decision in favour of the appellant holding that the penalty u/s.271AAA under such circumstances should not be levied. The reliance is placed on the following judgements also:- i. Mothers Pride Education Personna.. vs DCITITA No. 3372/Del/2011 ii. Smt Raja Rani Gupta vs DCIT CC-5, New Delhi ITA No. 3371/Del/2011 iii. Ashokkumar Sharma vs DCIT Circ!e2(1), Sambalkpur ITA Nos. 476 to 480/CT/2011 iv. Pannalal K Banthia vs Department of iNcome Tax ITA NO. 6145/Mum/2010 v. ACIT vs Bhikhubhai Shah ITA No. 1816/Ahd/2010 Tak....
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....uch undisclosed income of Rs. 9.29 crores as derived from construction business of the appellant company in the projects namely 'Swastik Universal', which was a residential complex. Then, the condition provided in sub s. (i) of s. 271AAA(2) of the Act is satisfied as the manner of earning of undisclosed income has been clearly stated by the assessee in the statement of director of assessee company recorded u/s. 132(4) of the Act. It is also not in dispute that the assessee has shown surrendered income in the return filed in response to notice u/s. 153A of the Act and has paid all due taxes etc. thereon and thus, another required condition has also been fulfilled by the assessee. 8. Now, we further evaluate the conclusion of the ld. CIT(A)....