TaxTMI 
TaxTMI 
2020 (8) TMI 33
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....3) of the Act without any adjustment or addition. 3. Ld. CIT (A) erred in law and on facts in holding income shown in return as 'undisclosed income' liable to penalty ignoring that income is not represented by any money, bullion, jewellery or other valuable article or thing or any entry in the books of accounts. 4. Both the lower authorities erred in law and on facts in not appreciating the fact that imposition of penalty is discretionary & not mandatory. 3. The assessee in this appeal has challenged the penalty imposed by the AO and confirmed by the learned CIT (A) for Rs. 38,20,160/- under the provisions of section 271AAB of the Act. 4. The facts in brief are that the assessee in the present case is a private limited company and engaged in the business of development of real estate/infrastructure/land. There was a search under section 132 of the Act, carried out at the premises of Dhanjimama Group including the assessee dated 3rd July 2012. The assessee as a result of search has disclosed an income of Rs. 3,82,01,600/- in the return filed in response to the notice issued under section 153A of the Act. Subsequently, the assessment was framed under section 153A rea....
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....was justified in prima facie concluding that the disclosure u/s 132(4) is not lump sum but is based on seized assets/documents. My perusal of the statement of Shri Daswani u/s 132(4) dated 29/8/2012 leaves no doubt in my mind that disclosure u/s 132(4) is clearly and categorically based on seized documents. Not only answers to questions 1 and 2 of the statement of Shri Daswani would establish so', the fact that the amounts of "undisclosed income" have been "worked out" to the accuracy of amounts like Rs. 79,69,675/- for F.Y.2010-11 and Rs. 45,23,454/- for F.Y.2012-13 after the examination of seized documents by the appellant would also clearly indicate that indeed the disclosure is based on adverse, sound and credible material seized during the course of the search. Thus, the amounts shown in both the returns of income can unhesitatingly be held to be "undisclosed income" within the meaning of section 271AAB. Once the amount forming part of returned income is "undisclosed income" and when further there is no reasonable cause even pleaded, leave aside the same having been established for the AO to get persuaded in not levying the penalty u/s 271AAB, the AO, in my considered opin....
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....ssent of the President50], the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,- XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXX (c) "undisclosed income" means- (i) any income of the specified previous year represented, either wholly or partly, by any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or other documents or transactions found in the course of a search under section 132, which has- (A) not been recorded on or before the date of search in the books of account or other documents maintained in the normal course relating to such previous year; or (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 ....
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....t. There is no evidence to establish that projections reflected in the loose sheet is real. No other material was found during the course of search indicating the undisclosed income. There was no money, bullion, jewellery or valuable article or thing or entry in the books of accounts or documents transactions were found during the course of search indicating the assets not recorded in the books of accounts or other documents maintained in the normal course, wholly or partly. The revenue did not find any undisclosed asset, any other undisclosed income or the inflation of expenditure during the search/ assessment proceedings. Though a loose sheet of page No.107 of Annexure A/GS/MA/1 was found that does not indicate any suppression of income but it is only projection of profit statement. The amount of Rs. 3571/- mentioned in the projections refers to cost and profit which is approximate sale price but not the cost as stated by the AO in the penalty order. The cost of construction in the projections projected at Rs. 2177/- which is in synch with the statement given by the assessee. The AO was happy with the disclosure given by the assessee and did not verify the factual position with t....