TaxTMI 
TaxTMI 
2023 (7) TMI 469
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....eferred as 'the Act') by the ITO, Ward 1(1), Gurgaon (hereinafter referred as the Ld. AO). 2. The brief facts of the case are a survey u/s 133A of the Act was conducted on 02.03.2017. The appellant is a commission agent of food grains. During the course of survey proceedings the appellant was found maintaining two sets of books of account - one for income tax purposes and other for business purposes. It was revealed that the appellant has made out of books sales of Rs. 77,25,354/- which were not recorded in the books of account. On such facts the Ld. AO computed undisclosed profit of Rs. 246438/- @ 3.29% on such out of book sales. Further the Ld. AO made addition of Rs. 9,23,213/- u/s 69A of the Act on account of unexplained deposits in th....
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....e ambit of section 270A(9) of the Act. Therefore it is found that there is no merit in the submission of the appellant. On such facts penalty of Rs. 80,224/- levied by the AO u/s 270A(9) is hereby confirmed. Ground of appeal no. 1 is hereby dismissed." 3. Heard and perused the record. 3.1 The assessee is in appeal before the Tribunal raising following grounds : "Grounds of appeal. (1). That the order passed by lower authorities is against the principles of natural justice as the appellant is eligible for immunity u/s 270 AA of IT Act 1961 because he has fulfilled the two conditions mentioned in section 270 AA of IT Act 1961. (1). He shall deposit the demand within the period specified in notice. (2). He shall not file appeal against t....
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....e. 5. Giving thoughtful consideration to the matter on record and the submissions. It comes up that admittedly no application was filed before the Ld. AO in terms of Section 270AA while sub section (2) of section 270A provides that application for immunity shall be made within one month from the end of the month in which the assessment order has been received and shall be made in such form and verified to such manner as may be prescribed. Further sub section (3) provides that if the two fundamental conditions about payment of tax demand in the specified period and non-filing of appeal against assessment order are fulfilled, then the assessing officer shall grant immunity from imposition of penalty u/s 270A. Further sub-section (4) of 270AA....
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....s were initiated u/s 270A(9) of the Act provisions of section 270AA are not applicable. Ld. CIT(A) also gave a finding that it was a case of under reporting of the income in the nature of misreporting, therefore, the case of assessee falls within the ambit of Section 270A(9) of the Act. 6. The Bench is of considered opinion that the ld. First Appellate Authority had no jurisdiction to enter into the question of allowing or rejecting claim of the immunity from imposition of penalty u/s 270AA of the Act. The assessee at first instance had not made an application as per the provisions of Section 270AA of the Act, therefore, there was no order of Ld. AO u/s 270 AA of the Act. Even if it is assumed from the argument of ld. Counsel that challan ....
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....0A and initiation of proceedings under section 276C or section 286CC, where the proceedings for penalty under section 270A has not been initiated under the circumstances referred to in sub-section (9) of the said section 270A." 7.2 To consider the question that penalty ought to have been levied at 50% of the additional tax payable as provided u/s 270A(7) of the Act. It appears from the order of ld. AO u/s 270A of the Act that penalty has been levied by invoking the provisions of Section 270A(1) r.w.s. 270(9)(A) of the Act. Though the Ld. AO mentioned that the penalty is being levied @ 200% of the amount of tax payable on the under reported income he has not specifically mentioned that under reported income is in consequence of any misrepor....