TaxTMI 
TaxTMI 
2019 (12) TMI 971
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....ers of the Commissioner of Income Tax(Appeals)-12 Ahmedabad ('CIT(A)' in short) all dated 22/01/2018 for AYs 2011-12, 2012-13 & 2013-14 towards confirmation of penalty u/s.271(1)(c) of the Income Tax Act (hereinafter referred to as "the Act"). Another set of Assessee's four appeals (in the case of Dhanraj G. Manglani in ITA Nos.560 to 563/Ahd/2018) are directed against the separate orders of the CIT(Appeals)-12, Ahmedabad all dated 22/01/2018 for AYs 2010-11 to 2013-14 towards confirmation of penalty u/s.271 AAB of the Act. Another set of assessee's four appeals ( in the case of Kamlesh D.Manglani in ITA Nos.564 to 567/Ahd/2018) are directed against the separate orders of the CIT(A)- 12, Ahmedabad all dated 22/01/2018 for AYs 2010-11 to 2013-14 towards confirmation of penalty u/s.271(1)(c) of the Act. Another set of assessee's two appeals (in the case of Vinodkumar A. Chugh in ITA Nos.568 & 569/Ahd/2018) are directed against the separate orders of the CIT(A)-12, Ahmedabad both dated 23/01/2018 for AYs 2011-12 and 2012-13 towards confirmation of penalty u/s.271(1)(c) of the Act. Another set of assessee's six appeals ( in the case of Smt.Dhanwantiben C.Darshiyani in ITA N....
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.... the assessee in the present case is an individual and engaged in the business of dealing in land. The assessee is also a partner in two partnership firms. She is deriving income from House property, Business/Profession and Other Sources. There was a search and seizure operation under section 132 of the Act in the "Dhanjimama Group" of cases dated 3rd July 2012. The assessee being the part of the group was also covered under such search and seizure operation carried out dated 3rd July 2012. The assessee accordingly filed her return of income in response to the notice under section 153A of the Act declaring total income of Rs. 13,07,960.00 inclusive of the income from agricultural operation of Rs. 16,136/- only. The income declared in the return of income was also inclusive of the additional income of Rs. 4,05,795.00 disclosed during the search. 3.1 The assessment was framed by the AO under section 153A/143(3) of the Act dated 20th March 2015, after making the addition of Rs. 3,77,790.00 on account of income relating to the land transactions deals which were not disclosed in the books of accounts, at the total income Rs. 16,85,750.00 only. Accordingly, the AO initiated the penalt....
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....th explanation 5A of the Act. 5. Aggrieved assessee preferred an appeal to the learned CIT(A) who confirmed the order of the AO by observing that the additional income declared in the return filed in response to the notice issued under section 153A of the Act and other income was detected only because of the search initiated under section 132 of the Act. Accordingly the learned CIT (A) confirmed the order of the AO. Being aggrieved by the order of the learned CIT (A) the assessee is in appeal before us. 6. The ld. AR before us filed a paper book running from pages 1 to 173 and submitted that that the additional income was offered to tax voluntarily by the assessee which is not based on any seized materials found during the search having some incriminating values. Similarly, in case of the addition of Rs. 3,77,790.00 there was also not any reference to the incriminating document found during the course of search. 6.1 The learned AR also submitted that similar kinds of penalty were also levied in the group matters, which were also the subject matter of the same search, by the Revenue. But the ITAT has deleted such penalty. The learned AR also furnished the list of such or....
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....all be levied if the assessee in the course of such initiated under section 132 of the Act was found to be the owner of any money, bullion, jewellery or other valuable article or there is some income based on the entry in the books of accounts/documents. Then, it shall be presumed that the assessee has either concealed the particulars of income or furnished inaccurate particulars of income. However in the case on hand, we note that there is no such allegation made by the authorities below as discussed above. 8.2 Thus, it is transpired that the assessee has disclosed additional income in the return issued under section 153A of the Act voluntarily and without having found any income by the Revenue in the manner provided under explanation 5A to section 271(1)(c) of the Act. As such, there was not found any undisclosed income by the Revenue in the course of such conducted under section 132 of the Act. 8.3 Similarly, there was also no mentioned of any incriminating document in relation to the addition of Rs. 3,77,790.00 on the basis of which the addition was made by the Revenue. Thus, it is inferred that such addition was not based on the document found during the course of search....
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....rated in the submission filed by the assessee as discussed above. Accordingly, we hold that there cannot be any penalty under explanation 5A to section 271(1)(c) of the Act in the given facts and circumstances. Hence the ground of appeal of the assessee is allowed. 9. In the result, assessee's appeal in ITA No.587/Ahd/2018 for AY 2008-09 is allowed. Coming to the other appeals filed by the assessee bearing ITA Nos. 588 to 590/AHD/2018 for the A.Ys. 2009-10 to 2011-12 10. At the outset we note that in the identical facts and circumstances, we have deleted the penalty imposed under section 271(1)(c) of the Act vide Paragraph No. 8 of this order. Respectfully, following the same, we delete the penalty imposed by the AO which was subsequently confirmed by the Ld. CIT (A). Hence, the ground of appeal of the assessee is allowed. 11. In the result, these appeals of the assessee are also allowed. Coming to the assessee's appeal bearing ITA No. 591/Ahd/2018 for the AY 2012- 13. The only issue raised by the assessee is that the ld. CIT(A) erred in confirming the penalty imposed by the AO for Rs. 11,28,165.00 under section 271AAB of the Act. 12. The assessee has disclo....
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.... (B) otherwise not been disclosed to the 54[Principal Chief Commissioner or] Chief Commissioner or 54[Principal Commissioner or] Commissioner before the date of search; or (ii) any income of the specified previous year represented, either wholly or partly, by any entry in respect of an expense recorded in the books of account or other documents maintained in the normal course relating to the specified previous year which is found to be false and would not have been found to be so had the search not been conducted.]" 15.1 From the above provision, it is clear that the penalty shall be imposed under section 271AAB of the Act where there is undisclosed income within the meaning of the explanation (c) to 271AAB of the Act. However, we note that there was no documentary evidence found by the search team suggesting that there was any undisclosed income of the assessee. As such the voluntary income disclosed by the assessee and the addition made by the AO was without having found any incriminating document in the course of search. We also note that there no reference made by the authorities below to the documents of incriminating nature having bearing on the income of the ....
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....ks of accounts and projections and bring the evidence to unearth the undisclosed income. Neither the A.O. nor the investigation wing linked the cost of profit or cost of asset to the entries in the books of accounts or to the sales conducted by the assessee to the sale deeds. Therefore, we are unable to accept the contention of the revenue that the loose sheet found during the course of search indicates any undisclosed income or asset or inflation of expenditure. The Hon'ble ITAT Delhi Bench in the case of Ajay Sharma v. Dy. CIT [2013] 30 taxmann.com 109 held that with respect to the addition on account of alleged receivables as per seized paper, there is no direct material which leads and establishes that any income received by the assessee has not been declared by the assessee. An addition has been made on the basis of loose document, which did not closely prove any concealment or furnishing of inaccurate particulars by the assessee. Hence penalty u/s 158BFA (2) of the Act is not leviable. The facts of the assessee's case shows that there was no undisclosed income found during the course of search and no incriminating material was found, hence we hold that there ....
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....ion 271AAB of the Act vide Paragraph No. 15 of this order in the case of Dhanwantiben C. Darshiyani (supra) in ITA No. 591/AHD/2018. Respectfully, following the same, we delete the penalty imposed by the AO which was subsequently confirmed by the Ld. CIT (A). Hence, the ground of appeal of the assessee is allowed. 21. In the result the appeal of the assessee in ITA No.569/Ahd/2018 for AY 2012-13 is allowed. Coming to the assessee appeals in the case(s) of Mukesh B. Manglani: Coming to ITA Nos. 556/AHD/2018 for the AY 2011-12 22. At the outset, we note that in the identical facts and circumstances, we have deleted the penalty imposed under section 271(1)(c) of the Act vide Paragraph No. 8 of this order in the case of Dhanwantiben C. Darshiyani (supra) in ITA No. 587/AHD/2018. Respectfully, following the same, we delete the penalty imposed by the AO which was subsequently confirmed by the Ld. CIT (A). Hence, the ground of appeal of the assessee is allowed. 23. In the result, the appeal of the assessee in ITA No.556/Ahd/2018 for AY 2011-12 is also allowed. Coming to ITA Nos. 557 & 558/AHD/2018 for the AYs 2012-13 and 2013-14 24. At the outset, we note that in the ....
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....). Hence, the ground of appeal(s) of the assessee is allowed. 31. In the result, all the five appeals of the assessee in ITA No.593 to 597/Ahd/2018 for AYs 2007-08 to 2011-12 are also allowed. Coming to ITA Nos. 598 & 599/AHD/2018 for the AYs 2012-13 & 2013-14 32. At the outset, we note that in the identical facts and circumstances, we have deleted the penalty imposed under section 271AAB of the Act vide Paragraph No. 15 of this order in the case Dhanwantiben C. Darshiyani (supra) in ITA No. 591/AHD/2018. Respectfully, following the same, we delete the penalty imposed by the AO which was subsequently confirmed by the Ld. CIT (A). Hence, the ground of appeal(s) of the assessee is allowed. 33. In the result, both the appeals of the assessee in ITA Nos.588 & 599/Ahd/2018 for AYs 2012-13 & 2013-14 are allowed. Coming to assessee appeals in the case(s) of Kamlesh D. Mangalani 34. The learned counsel for the assessee, at the time of hearing, sought an adjournment but we decline the same on the reasoning that the impugned appeals were part of the group listed today for hearing. Therefore, we deemed appropriate to hear these appeals too along with the other appeals who ar....