2019 (4) TMI 1833

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....r for the sake of convenience and brevity. 3. First we shall deal with appeal in ITA No. 490/Chd/2018 for the Assessment Year 2013-14 wherein the assessee has raised only one effective ground which reads as under: " That order passed u/s 250(6) of the Income Tax Act, 1961 by the Ld. Commissioner of Income Tax (Appeals)-2, Jalandhar upholding levy of penalty u/s 271AAB at Rs. 20,00,000/- is against law and facts on the file in as much no such penalty was exigible in the facts and circumstances of the case." 4. Facts of the case in brief are that the search and seizure operation under section 132(1) of the Income Tax Act, 1961 (hereinafter referred to as 'Act') was carried out at the business premises of the assessee. 5. Dur....

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....er:- 271AAB(1) The Assessing Officer may, notwithstanding anything contained in any other provisions of this Act, direct that, in a case where search has been initiated under section 132 on or after the 1st day of July, 2012, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,- It clearly shows that it is the discretion of the Ld. A.O. to levy or not to levy penalty u/s 271AAB in as much as the legislature in its own wisdom has used the word 'May' and not 'shall'. In view of the above, it is respectfully submitted that the penalty proceedings in question may kindly be filed as no such penalty is chargeable in the facts and circumstances of the case". The Assessi....

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....visions of law, the penalty imposed by the AO in this case @ 10% of undisclosed income is found sustainable as per law and hence confirmed. 7. Now the assessee is in appeal. 8. Ld. Counsel for the assessee submitted that the penalty u/s 271AAB of the Act levied by the Assessing Officer was void abinitio because he has not taken the prior approval under section 274(2) of the Act, which was accorded vide letter no. 1036 dt. 30/09/2016 while the penalty order was passed by the Assessing Officer on 29/09/2016 i.e; prior to taking the approval from the Additional CIT, Central Circle, Range Ludhiana. 9. In her rival submissions the Ld. Sr. DR strongly supported the order of the authorities below and further submitted that there may be a ....