2018 (11) TMI 1721

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....s. 271AAB of the Income-tax Act, 1961 (hereinafter referred to as the "Act") in violation of Rule 46A of the I. T. Rules, 1962 and the Cross Objection of the assessee is that of the AO ought not to have levied penalty u/s. 271AAB of the Act since no search was initiated in the case of the assessee company u/s. 132 of the Act. 3. We not that the assessee has raised the legal issue in its Cross Objection so we are inclined to adjudicate the same first. Though the Ld. CIT, DR vehemently opposed the admission of the legal issue for the first time before us, we taking note of the Hon'ble Supreme court decision in NTPC Vs. CIT 229 ITR 383 (SC) are inclined to admit the legal issue which the assessee has raised for the first time before this Tri....

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....p;                                                                                       Sd/ (PMJ) JM                                         &n....

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.... cannot be initiated against the assessee. A perusal of the heading to the provision of sec. 271AAB reads as "penalty where search has been initiated" and on further perusal of the provision of section 271AAB it reveals about the assessee's disclosure by statement u/s. 132(4) about any undisclosed income in the course of search. Admittedly, in the present case, there has been no search u/s. 132 of the Act. Search happened in the case of Ghanshyam Misra Group of cases on 16.10.2012 and admittedly there was survey proceeding u/s. 133A on 16.10.2012 against the assessee company. We note that the AO has not initiated any 153A proceeding pursuant to the search and in case if the assessee had been search u/s. 132 of the Act, then proceedings u/s.....