TaxTMI 
TaxTMI 
2022 (3) TMI 1077
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....d. CIT(A) deleting the penalty imposed u/s. 271AAB(1)(a) of the Act based on the decision of this Tribunal in M/s. Rashmi Metaliks Ltd. (ITA No. 1608/Kol/2017). 3. This appeal of revenue is time barred by three days. After hearing both the sides, we condone the delay of three days and admit the appeal for hearing. 4. Brief facts of the case are that a search and seizure action u/s. 132(1) of the Act was conducted on 18.02.2013 (AY 2013-14) which is the relevant year under consideration for this penalty appeal which was conducted on M/s. Rashmi Group and its associates. Shri Jivendra Kumar Mishra, the assessee before us in this appeal is an individual connected with this group. In the statement recorded during search u/s. 132(4) of the....
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....accountant. Therefore, according to the Ld. DR, the Ld. CIT(A) erred in making a finding that the declared amount (Rs. 7.45 cr.) was not falling in the definition of 'undisclosed income' for the purpose of levying penalty under section 271AAB of the Act. For that he drew our attention to the definition clause of undisclosed income given u/s. 271AAB of the Act and tried to demonstrate that since this commission amount of Rs. 7.45 cr. was not recorded in the books of account of the assessee on the date of search, the said amount is an 'undisclosed income' and, therefore, the penalty u/s. 271AAB of the Act was validly passed by the AO against the assessee and, which has been erroneously deleted by the Ld. CIT(A) which impugned action of Ld. CI....
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....e assessee had voluntarily offered the same during search u/s. 132(4) of the Act; and consequently in this AY 2013-14 the assessee had offered to pay tax on the sum of Rs. 7,45,00,000/- by filing the return and had paid tax on it. According to Ld. AR, even though the AO accepted the return of income filed by the assessee pursuant to the notice u/s. 153A of the Act, the AO has wrongly levied penalty u/s. 271AAB of the Act in respect of Rs. 7,45,00,000/- @ 10% which is Rs. 74,50,000/-. On appeal, according to Ld. AR, the Ld. CIT(A) rightly deleted the same by relying on the decision of this Tribunal in the very same group case of M/s. Rashmi Metaliks (supra), which does not require any interference from our side. 7. We have heard rival sub....
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.... definition of "undisclosed Income" given in section 271AAB of the Act, which reads as under: "(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 ....
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....regarding claim of false expenses, so not discussed]. So from the definition given, it can be seen that those items stated in sub clause (i) if found by the search party which has not been found recorded in the books of account or other documents of the assessee, it will qualify as "undisclosed Income" otherwise it cannot be called as "undisclosed income" for the purpose of levy of penalty u/s. 271AAB of the Act. Coming to the instant case, the assessee's case is that being an individual he is not required as per law to maintain books of account. However, it is elementary in such cases that the assessee in the normal course writes/notes down the income/expenditure which accrues to him in his diary/note book etc which could be treated 'as bo....