2014 (12) TMI 1365

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....f facts of this case are as under :- Briefly stated, the facts leading to imposition of penalty are that there was a search and seizure action carried out in this case on 05.08.2008 on receipt of information from Directorate of Revenue Intelligence, Mumbai that some cash was found by them at the Mumbai office of the assessee company. Search was conducted at the assessee's Mumbai office and survey u/s 133A was conducted at its Kolkata office and Head Office at Chennai on 06.08.2008. At Mumbai office cash of Rs. 47,40,000/- was found out of which cash of Rs. 47,00,000/- was seized. At Hyderabad premises of the assessee a sum of Rs. 9,00,000/- was also found. In his return of income for the year under appeal, filed subsequent to the search, th....

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....uch finding . He further observed that Explanation 5A also does not apply the facts of this case. Hence the ld. CIT(A) held that penalty levied u/s 271(1)(c) of the Act was liable to be deleted. Against the above the Revenue is in appeal before us. 5. At the outset in the case ld. Counsel of the assessee submitted that penalty levied u/s 271(1)(c) of the Act in this case is not sustainable as penalty in that section was not at all leviable in this case. For this he referred to the provision of section 271AAA of the Act which reads as under :- "271AAA (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....

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....of the Act was leviable. In this regard the ld.counsel of the assessee also referred to the decision of ITAT Delhi Bench in the case of Cario International vs DCIT in ITA No.4439/Del/2012 for A.Yr.2008-09. In this case vide order dated 11.10.2013, the Tribunal had held that penalty imposed by the AO u/s 271(1)(c) of the Act and converted by the ld. CIT(A) into section 271AAA even on reduced amount cannot be held to be proper or legally justified. Hence the Tribunal had deleted the levy of penalty in that case u/s 271(1)(c) of the Act as reduced by the ld. CIT(A) u/s 271AAA of the Act. Hence the ld. Counsel of the assessee pleaded that penalty levied u/s 271(1)(c) of the Act in this case is not at all sustainable. The ld. DR could not rebut ....