2021 (12) TMI 440

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....ied is justified as per penalty order. 2. Whether in the fact and circumstances the ld. CIT(A) erred in allowing the appeal of the assessee without considering the facts that the father of the assessee declared in his statement on oath that the amount was provided as a unaccounted cash loan given by the assessee who considered the same as undisclosed in her hand and filed ITR for the relevant AY by mentioning the same income accordingly. 3. Whether in the facts and circumstances the Ld. CIT(A) erred in relying the case law of I.T.A.T. bench in the case of DCIT vs. Volga Dresses ITANo.201 & 202/PAN/2016 whereas that does not pertain to jurisdictional by the dept. and further appeal was filed by the revenue. 4. The appellant craves leave to add to or deduct from or otherwise amend the above grounds of appeal. The Assessee has raised following grounds of appeal in CONo.12/Ind/2020: 1. The Ld. AO has grossly erred under the facts and circumstances of the cases in levying of Rs. 65,00,000/- under section 271AAB without proving concealment. 2. 2. The Ld. AO has erred in his order on fact by setting that the surrendered income was declared i....

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....) r.w.s. 153C of the Act. 3.Subsequently, penalty proceedings u/s 271AAB of the Act were initiated by issuance of notice u/s 274 of the Act and after considering the submissions made by the assessee penalty of Rs. 65,00,000/- was levied. 4. Aggrieved assessee preferred an appeal before the ld. CIT(A) and succeeded. 5. Now revenue is in appeal before this Tribunal. Ld. Departmental Representative (DR) vehemently argued supporting the order of Ld. AO and also submitted that the surrender of Rs. 2 crore was made by the assessee's father who was real owner of the undisclosed income which he routed as gifts in the hands of his daughter. Supporting the order of Ld. AO he requested confirm the penalty levied u/s 271AAB of the Act. 6. Per contra Ld. counsel for the assessee supported the finding of Ld. CIT(A) and also submitted that the notice of search was not issued in the name of assessee. Notice u/s 274 of the Act issued to assessee is defective as it does not specify specific charge against the assessee. He also referred to the written submissions running from pages 1 to 8 and paper book pages running from 1 to 67. 7. We have heard rival contentions and perused the reco....

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....in notice u/s 132(4), it is evident that search was not conducted on assessee. Section 271AAB starts with the words "Penalty where' search has been initiated" whereas no search was initiated against the assessee therefore section is not applicable , Assessment was done on assessee u/s 143(3) r.w.s, 153C which itself is evidence of search not being conducted on. assessee. Therefore, section 271AAB is not applicable. 02- Statement u/s132(4) where income is surrendered was given by father of the assessee and not the assessee herself, therefore, sub-clause (i) of sub section (1l( a) of section 271AAB also is not complied in present case .. ' 03~ Section 271AAB is applicable only on the assessments conducted u/s 153A not on cases assessed ujs153C. 4.3 It would be pertinent to reproduce the language of section 271AAB of the IT Act, 1961:- "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 1 st day of July, 2012 [but before the date on which the Taxation Laws (Second Amendment) Bill, 2016 rece....

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....he tax, together with interest, if any, in respect of the undisclosed income and B furnished the return of income for the specifies previous year declaring such undisclosed income therein. (b) a sum computed at the rate of sixty per cent of the undisclosed income of the specified previous year, if it is not covered under the provisions of clause (a).) (2) No penalty under the provisions of 45[section 270A or} clause (c) of subsection (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1) 45a!or sub-section (1 A}}. (3) The provision of sections 274 and 275 shall, as far as may be, apply in (c) relation to the penalty referred to in this section .. Explanation.-For the purposes of this section,- (a) "specified date" means the due date of furnishing of return of income under sub-section (1) of section ]39 or the date on which the period specified in the notice issued under section 153A for furnishing of return of income expires, as the case may be; (b) "specified previous year" means the previous year- (i) which has ended before the date of search,....

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....hat she did not carry out any business activity during the year under consideration. The said amount was received by her as a gift; therefore, there was no need to her to maintain books' of account. Further, the appellant had deposited entire tax and had filed the return of income before the due date so required u/s 139 of the Act, which had also been accepted by the AO in the first para of the assessment order. The. Appellant had also paid tax and return was also filed before the . issuance of notice u j s 153C of the Act. 4.7 Hence after taking into account all the factual matrix and circumstances of the case, the following points are emerged out:- 1. No search was conducted in the appellant's case, thus the said section does not apply. 2. No books of account were maintained by the appellant as she was not engaged in any business activity. She had received the said amount as gift. 3. The assessment was completed u/s 143(3) r.w.s. 153C not in the section 153A, therefore, the said section does not attract in the appellant's case. 4. The appellant had deposited entire tax and had filed the return of income before the due date u/s 139 ....