TaxTMI 
TaxTMI 
2021 (1) TMI 743
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.... the Act, on the facts and circumstances of the case. 3. The learned CIT(A) was not justified in law in appreciating that the notice of penalty ought to have been issued under section 271(1)(c) of the Act, since the order of assessment has been passed under section 143(3) r.w.s 153C of the Act (AY 2012-13) under section 143(3) of the Act (AY 2013-14), on the facts and circumstances of the case. 4. The learned CIT(A) was not justified in appreciating that the search was conducted in the case of the firm and not in the case of the individual appellant, and hence the penalty if at all levied, ought to have been under section 271(1)(c) of the Act, on the facts and circumstances of the case. 5. The learned CIT(A) was not justified in law, in appreciating that the notice issued under section 271AAB of the Act, is bad in law on the facts and circumstances of the case. 6. Without prejudice and not conceding that the provisions of section 271AAB were not applicable to the facts of the case, the learned Assessing officer Is empowered to issue notice under section 271AAB of the Act for only one year and the notices issued for two years is against the scheme....
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....penalty levied is highly excessive and is to be reduced substantially reduced on the facts and circumstances of the case. 15. The learned CIT(A) was not justified in appreciating that the order of penalty was bad in law, as the officer passing the order has not assumed proper jurisdiction over the case of the appellant, on the facts and circumstances of the case. 16. The Appellant craves leave to add, alter, substitute and delete any or all of the grounds of appeal urged above. 17. For the above and other grounds to be urged during the hearing of the appeal the Appellant prays that the appeal be allowed in the interest of equity and justice. 3. The facts of the case are that for these two assessment years, assessment was completed u/s. 143(3) r.w.s. 153C of the Income-tax Act, 1961 [the Act]. Later, the AO levied penalty u/s. 271AAB of the Act on account of undisclosed income declared by the assessee during the postsurvey proceedings on 6.8.2015. Against this, the assessee went in appeal before the CIT(Appeals). The CIT(Appeals) confirmed the levy of the penalty u/s. 271AAB of the Act. Aggrieved, the assessee is in appeal before us. 4. At the outset....
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..... No. 5 above). 5. That the Assessee prays for permitting to produce any other documents, clarifications, case laws, etc at the time of hearing with the kind permission of the Hon'ble C.I.T. (Appeals). Also prays that these grounds of appeal may allowed to be amended or modified with the kind permission of the Hon'ble C.I.T. (Appeals). RELIEF CLAIMED : On the Basis of aforementioned Grounds of Appeal, the Assessee prays: 1. To set aside in full the Penalty Order passed u/s 271AAB by the ACIT, Circle 3(1), Hubli." 7. On a perusal of the above ground, we observe that admittedly the assessee had raised a ground with regard to passing of order u/s. 271AAB of the Act consequent to assessment order u/s. 153C of the Act. Being so, the ld. DR is not correct in arguing that there was no such ground raised before the first appellate authority. Even if there is no ground before the first appellate authority, the Tribunal is not precluded to adjudicate this ground being a legal ground. 8. Coming to the arguments of the ld. AR, we have to go through the provisions of section 271AAB of the Act, which reads as follows:- "Penalty where sea....
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....xpires, as the case may be; (b) "specified previous year" means the previous year- (i) which has ended before the date of search, but the date of furnishing the return of income under sub-section (1) of section 139 for such year has not expired before the date of search and the assessee has not furnished the return of income for the previous year before the date of search; or (ii) in which search was conducted; (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 Chief 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 rec....