TaxTMI 
TaxTMI 
2022 (9) TMI 298
X X X X Extracts X X X X
X X X X Extracts X X X X
....orities below erred in levying a penalty of Rs. 10,99,990/- on the facts and circumstances of the case. The authorities below failed to appreciate that the returned income has been accepted and there is evidence of any concealment and as such the penalty levied deserves to be canceled. 3. The learned CIT (A) erred in rejecting the appeal on the ground that the AO as given a clear finding in the order that the twin conditions which will enable the appellant to be exempt from levy of penalty are not satisfied. The learned CIT (A) failed to appreciate that on the contrary the appellant had satisfied the twin condition required for exemption from the levy of penalty. Therefore, penalty levied in bad in law on both facts as well as the legal position. The Learned CIT (A) further failed to appreciate that the appellant has fulfilled the twin conditions to claim an immunity from imposition of penalty u/s 271AAA of the Income Tax Act, 1961. 4. The learned authorities erred in holing that, twin conditions not satisfied by the appellant. It is very clear from the assessment/penalty orders and the statement recorded u/s 132(4), the assessee was in the business of real estate....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... levied is highly excessive and liable to reduced substantially. 5. The appellant craves leave to add, alter, delete or substitute any of the grounds urged above. 6. In view of the above and other grounds that may be urged at the time of the hearing of the appeal, the appellant prays that the appeal may be allowed and appropriate relief be granted in the interest on justice and equity. Admission of Additional Grounds: 3. We have considered the issue is alleged by the assessee in the additional grounds raised in both the years under consideration. The assessee is challenging the applicability of section 271 AAA of the act for the assessment year 2008-09. For assessment year 2009-10, the assessee is challenging that, penalty under section 271AAA is not automaticand only upon non-satisfaction of the conditions specified under the section penalty could have been levied. The Ld.AR submitted that, no new facts needs to be considered for adjudicating these issues and prayed for admission relying on the decision of Hon'ble Supreme Court in case of National thermal Power Co Ltd vs. CIT reported in 229 ITR 383. 4. On the contrary, the Ld.AR, though could not contro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t was completed under section 143 (3) of the act and assessee had filed the return of income declaring Rs.2,35,10,690/- that was filed as per notice dated 19/03/2010 issued under section 142 (1) of the Act requiring assessee to file the return of income for assessment year 2009-10 on or before 29/03/2010. 6.5 At the time of penalty proceedings the Ld.AR observed that, the assessee considering the liabilities and assets prepared the statement of affairs for the block period that was considered under 153 A proceedings. From the assessment order passed it is noted that a sissy adopted the net wealth creation method to arrive at the undisclosed income, the assessment year the details of which are as under: Assessment year Declared as per return filed after the date of such 2003-04 11,51,837 2004-05 35,69,341 2005-06 1,64,27,758 2006-07 4,68,76,382 2007-08 4,69,13,969 2008-09 3,24,72,389 2009-10 2,35,10,690 Total 17,09,22,366 6.6 Ld.AO observed that, the assessee would not have surrendered monies for the years under consideration, had the search and seizure operation not taken place. The Ld.AO initiated proceeding for impositio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lty by submitting that the penalty could not have been automatically levied AND THAT THERE WAS A DISCRETION NOT TO LEVY THE PENALTY which ought to have been exercised by the Ld.AO. 12. We note that, while recording the statement under section 132(4) of the Act, the authorities concerned did not put any specific query regarding the mode and manner in which undisclosed income was derived, the assessee did not give any specific answer. However we know that during the penalty proceedings assessee had filed reply to the notice dated 27/07/2011 which the Ld.AO does not accept without assigning any reasons. From the assessment orders, we note that the statement recorded forms part of the same. We note that, the said amounts were offered for the relevant assessment years by the assessee as he was not having relevant documents to support the monies that was lying in his bank account and the details of investments made by assessee in various agricultural lands. We note that no cash has been seized from the premises during the course of search and the declaration made by SSA under section 132 (4) are all cash deposits into the bank and investments made by assessing in agricultural land. Fu....