Loading judgment…
Facts
During a search and survey, unaccounted cash of Rs. 1,21,43,210/- was found. The assessee's director initially admitted it as unexplained income but later retracted. The Assessing Officer imposed a penalty under section 271AAB(1)(c) at 60%, which was upheld by the CIT(A).
Held
The Tribunal held that the penalty proceedings were initiated based on a show cause notice that did not specify the exact clause violated, but given the overall facts known to the assessee, the notice was not invalid. However, it found that the authorities erred in applying the amended law retrospectively and reduced the penalty from 60% to the minimum prescribed rate of 30%.
Key Issues
Whether the penalty notice was valid when it did not specify the exact clause of Section 271AAB violated, and whether the penalty rate should be applied as per the law in force at the time of violation or at the time of penalty order.
Sections Cited
271AAB, 274, 132, 139, 148, 153A, 133A, 131, 270A, 271
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES,”A-Bench” JAIPUR
Before: SHRIGAGAN GOYAL, AM& SHRI NARINDER KUMAR, JM
fu/kZkj.k o"kZ@AssessmentYear : 2015-16 cuke M/s Banna Lal Jat Constructions The DCIT, Vs. Pvt. Ltd. Central Circle, Ajmer. Bus Stand Jahazpur, Dist. Bhilwara. LFkk;hys[kk la-@thvkbZvkjla-@PAN/GIR No.:AACCB9357J vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby : Shri P.C. Parwal, C.A. jktLo dh vksjls@Revenue by: Mrs. Anita Rinesh, JCIT, Sr. DR lquokbZ dh rkjh[k@Date of Hearing :22/07/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 23/07/2025 vkns'k@ORDER Per: NARINDER KUMAR, JUDICIAL MEMBER .
On 04.10.2024, Learned CIT(A), vide order passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), upheld penalty of Rs. 72,85,930/- imposed on the assessee vide penalty order dated 14.03.2019, and thereby dismissed the appeal filed by the assessee.
The above said penalty order was passed u/s 271AAB(1)(c) of the Act r.w.s. 274 of the Act. Under the said provision, penalty @ 60% was M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. imposed. In the penalty order, the Assessing Officer recorded his satisfaction that without any reasonable cause, the assessee failed to disclose its unaccounted income of Rs. 1,21,43,210/- i.e. cash recovered from the residential premises of Shri Banna Lal Jat, in the course of search conducted at the residential at various business of premises of Banna Lal Jat, Jahazpura, Bhilwara, director of the assessee-company, who was also having a proprietorship concern as claimed by him.
Learned CIT(A) rejected all the grounds raised
by the appellant and upheld of the imposition of penalty @ 60%, while observing that the penalty order was passed on 14.03.2019 i.e. in view of the amendment in the provisions of section 271AAB of the Act, with effect from 01.04.2017.
4. That is how, the assessee company is before this Appellate Tribunal.
5. Arguments heard. File perused.
6. Ld. AR for the appellant firstly contended that the penalty has been imposed under clause © of sub section (1) of section 271AAB of the Act, whereas notice of penalty was issued only u/s 274 r.w.s. 271AAB i.e. without specifying clausefor the violation of which the penalty proceedings were going to be initiated. As per contention, the assessee was called upon to show cause, in absence of the specific mention of the particular limb of the section, said to have been violated. Accordingly, Learned AR urged that M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. in the given situation, the penalty order deserved to be set aside, but Learned CIT(A) has sustained the penalty order. In support of his contention, Ld. AR for the appellant has relied by producing before us the only decision of the Coordinate Bench, Jaipur Bench, in Mahaveer Prasad Agarwal vs. DCIT, delivered on 02.06.2022.
On the other hand, learned DR for the department has defended the impugned order to be legal and valid in the eye of law, for the reasons recorded therein, and violation of the provisions of clause (c) of sub-section (1) of Section 271AAB of the Act. It has been contended that from the assessment order, which admittedly, came to be upheld upto the Apex Court, the assessee very well knew about the allegations levelled and the material relied on, and as such, simply because particular clause (c) of the said provision was not mentioned in the show cause notice, the notice could not be said to be invalid.
Section 271AAB needs reproduction for ready reference. Same reads as under:- “Penalty where search has been initiated. 271AAB. (1) The Assessing Officer or the Commissioner (Appeals) may, not with standing anything contained in any other provisions of this Act, direct that, in a case M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. where search has been initiated under section 132 on or after the 1st day of July, 2012 but before the date on which the Taxation Laws (Second Amendment) Bill, 2016 receives the assent of the President, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,— (a) a sum computed at the rate of ten per cent of the undisclosed income of the specified previous year, if such assessee— (i) in the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived; (ii) substantiates the manner in which the undisclosed income was derived; and (iii) on or before the specified date— (A) pays the tax, together with interest, if any, in respect of the undisclosed income; and (B) furnishes the return of income for the specified previous year declaring such undisclosed income therein; (b) a sum computed at the rate of twenty per cent of the undisclosed income of the specified previous year, if such assessee— (i) in the course of the search, in a statement under sub-section (4) of section 132, does not admit the undisclosed income; and (ii) on or before the specified date— (A) declares such income in the return of income furnished for the specified previous year; and (B) pays the tax, together with interest, if any, in respect of the undisclosed income; (c) a sum computed at the rate of sixty per cent of the undisclosed income of the specified previous year, if it is not covered by the provisions of clauses (a) and (b). (1A) The Assessing Officer or the Commissioner (Appeals) 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 date on which the Taxation Laws (Second Amendment) Bill, 2016 receives the assent of the President, 7[but before the 1st day of September, 2024] the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,— (a) a sum computed at the rate of thirty per cent of the undisclosed income of the specified previous year, if the assessee— M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. (i) in the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived; (ii) substantiates the manner in which the undisclosed income was derived; and (iii) on or before the specified date— (A) pays the tax, together with interest, if any, in respect of the undisclosed income; and (B) furnishes the return of income for the specified 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 section 270A or clause (c) of sub-section (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed income referred to in sub-section (1) or sub-section (1A). (3) The provisions of sections 274 and 275 shall, as far as may be, apply in 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 139 or the date on which the period specified in the notice issued under section 148 or under section 153A, as the case may be,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, 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 M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. relating to such previous year; or (B) otherwise not been disclosed to the Principal Chief Commissioner or Chief Commissioner or Principal 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 recorded in the books of account or other documents maintained in the normal course relating to the specified previous year which is found to be false and would not have been found to be so had the search not been conducted.”
So far as decision in Mahaveer Prasad Agarwal’s case (supra) by the Coordinate Bench is concerned, same is distinguishable because of the peculiar facts of that case. In the above referred case, one of the arguments advanced on behalf of the appellant was that the Assessing Officer, while concluding the assessment had not mentioned anything as to the precise charge on which he proposed to impose the said penalty. In that case, the assessee was found to have substantiated undisclosed cash available, as to the extent of Rs. 8,73,000/-, i.e. the income surrendered by him. From the text of the show cause notice issued in that case, it was evident that the Assessing Officer was not clear as to for what precise charges the appellant therein was asked to explain the allegations levelled in the show cause i.e. whether the assessee shall pay penalty under M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. clause (a) or (b) or (c) of section 271AAB of the Act, and further that the Assessing Officer simply observed therein that the assessee had deliberately concealed the true income. Consequently, it was held therein that the show cause notice issued in routine, could not be taken to be a valid notice in the eyes of law. As a result, penalty imposed in that case was set aside.
Ld. AR for the appellant has submitted that penalty proceedings are different from the quantum proceedings and that violation of the provision of law is to be established while verifying the allegations levelled before penalty is imposed.
It is well settled that quantum proceedings are different from the proceedings conducted for the purpose of imposition of penalty, and penalty cannot be imposed simply because quantum proceedings were decided against the assessee. But, this is a case where firstly, while passing assessment order i.e. in the quantum proceedings, the Assessing Officer clearly dealt with the issue of recovery of cash to the tune of Rs. 1,21,43,210/- and then held that the said amount remained unexplained. The Assessing Officer also observed in the assessment order that penalty proceedings u/s 271AAB of the Act, were being initiated for the said undisclosed income.
M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. In the course of arguments, Ld. AR for the appellant has candidly submitted that by way of assessment order dated 23.12.2016, relating to the assessment year under consideration i.e. A.Y. 2015-16, three additions including addition of Rs. 1,21,43,210/- on account of unexplained cash recovered at the time of search of the residential premises and a Car, as mentioned above, were made and said assessment order was upheld by Learned CIT(A), confirming the said additions; that the order passed by Learned CIT(A) was confirmed by Hon’ble ITAT in the manner indicated; and further that the order passed by Hon’ble ITAT was upheld by our own Hon’ble High Court, dismissing the appeal filed by the assessee. Ld. AR for the appellant has also very candidly admitted that the SLP filed by the assessee before Hon’ble Apex Court stands dismissed.
With the written submissions submitted today before us, ld. AR for the appellant has submitted that copy of notice dated 23.12.2016, issued by the Assessing Officer to the assessee u/s 274 r.w.s. 271AAB of the Act, wherein reference was made to the fact that during proceedings for assessment of income for the assessment year 2015-16, cash was found which remained undisclosed, and that the show cause notice was being issued for explanation by the assessee as to why penalty u/s 271AAB of the Act be not imposed for the said undisclosed income.
M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara.
As noticed above, the quantum proceedings have been confirmedup to Hon’ble Supreme Court.In the peculiar situation, when the nature of the allegations were even earlier within the know of the assessee, if the Assessing Officer did not specify that the assessee was to explain as regards violation of particular clause i.e. (c) of sub section (1) of section 271AAB of the Act, it cannot be said that the show cause notice was invalid in the eyes of law. The decision in Mahaveer Prasad Agarwal’scase (supra) is distinguishable on facts, as therein the Coordinate Bench observed that the assessee had substantiated the undisclosed cash available to the extent of surrendered income, does not come to the aid of the appellant in this appeal. Even otherwise, a perusal of section 271AAB of the Act would reveal that its sub-section (1) has three clauses (a), (b) and (c). It is not the case of the assessee that its case falls in clause (a) or (b). To attract provisions of clause (a) or (b), requirement of deposit or payment of tax with interest is to be met with. But, it is not the case of the assessee. From the facts already well within the knowledge of the assessee, it can safely be said that the assessee was to explain and meet the allegation of violation of clause (c) of section 271(1) AAB of the Act. Therefore, even for said reason, there M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. is no merit in the contention raised on behalf of AR of the appellant challenging the validity of the show cause notice.
Another contention raised by ld. AR for the appellant is that neither the Assessing Officer nor Learned CIT(A) considered the following facts before imposing penalty, and as such penalty deserves to be set aside:- “(a) In statement recorded in survey u/s 133A dt. 09.10.2014, Sh. Bannalal Jat in reply to Q. No.11 with reference to cash of Rs.28,92,500/- found at residence from where he is conducting his business activities of M/s Bannalal Jat Contractor specifically stated that out of this amount, an amount of Rs. 19,92,500/- is out of withdrawal of Rs.20 lacs from the bank and Rs.9 lacs is cash of his business. Thereafter in reply to Q. No. 14 where cash of Rs.70 lacs was found from the car it is specifically stated that this amount has been withdrawn from Bank of Baroda and SBBJ between 20.09.2014 to 30.09.2014. The withdrawal from bank is verifiable from the cash book (PB 68-70) from which it can be noted that an amount of Rs.89,50,000/- has been withdrawn from the bank between 23.09.2014 to 30.09.2014 by M/s Bannalal Jat Contractor (PB 72- 74). This fact is not controverted by the lower authorities.
(b) As per the Balance Sheet as on 09.10.2014, cash balance of M/s Bannalal Jat Contractor was Rs.1,06,76,391/- (PB 77) and that of assessee was Rs.4,21,691/- (PB 78). Both these documents are part of seized material as is evident from the signature of authorized officer.
(c) The inventory of cash found at Rs.1,21,43,210/- and that seized at Rs. 1,17,43,210/- (PB 22-23) is in the name of Sh. Bannalal Jat and not in the name of assessee which proves that the cash pertains to Sh. Bannalal Jat and not to assessee.
(d) The survey was converted into search on 10.10.2014 and in the statement recorded u/s 132(4) at 11:15 AM (wrongly mentioned as 11.15 PM) at office, Sh. Bannalal Jat in reply to Q. No.8 (PB 39) when confronted with respect to cash of Rs. 1,21,43,210/- found at his residence stated that he is not in a position to explain the source of cash found whereas on 09.10.2014, in survey, he has explained the source of such cash. Thereafter he offered to pay tax on the M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. alleged unexplained cash of Rs.1,21,43,210/- in M/s Bannalal Jat Construction Pvt. Ltd. Thereafter in statement recorded at 5:00 PM at residence, Sh. Bannalal Jat in reply to Q. No.11 (PB 48) again stated that he has offered such cash as undisclosed in M/s Bannalal Jat Construction Pvt. Ltd. (e) The statement of Sh. Bannalal Jat was again recorded u/s 131 by ADIT(Inv.) on 04.12.2017 where in reply to Q. No.14 (PB 64) he summarized the total disclosure of Rs.5,36,43,210/- which included the alleged unexplained cash of Rs. 1,21,43,210/-.
(f) The Hon'ble ITAT after considering the submission of assessee at Para 11 of the order (PB 90-91) as to whether the cash found at residence pertain to Sh. Bannalal Jat or the assessee and considering the submission of assessee at Para 12 of the order (PB 92-94) that lower authorities have relied only on the statement of Sh. Bannalal Jat, at Para 16-25 (PB 96-102) after relying on the decision of Hon'ble Rajasthan High Court in case of Ravi Mathur & Ors. held that statement recorded u/s 132(4) has a great evidentiary value and thus confirmed the addition made by AO.
(g) From the above facts it can be noted that assessee has proved that cash found during survey which was subsequently converted into search is out of the withdrawals made from bank account of M/s Bannalal Jat Contractor of Rs.1,39,50,000/- between 26.08.2014 to 30.09.2014 (PB 68-71). The withdrawal from the bank account is evident from the bank statement (PB 72-74). The lower authorities have not brought on record any evidence which is found in search to prove that the amount so withdrawn from the bank account has been utilized elsewhere or expended. The categorical statement about the source of cash recorded in survey has been bypassed. Hence even though addition is confirmed on the technical ground regarding the evidentiary value of statement recorded u/s 132(4), it would not automatically lead to a conclusion that by not disclosing such amount in the return of income, the same represent concealed income of assessee. The lower authorities ought to have considered the facts independently in the penalty proceedings. This has not been done. The penalty provisions should be strictly construed. The facts shows that the cash found in survey is not unexplained cash and therefore even if, in quantum proceedings, From the material made available, it transpires that total cash found in survey/search at the residence of Shri Banna Lal Jat, was Rs. 1,21,43,210/-and out of it, cash to the tune of Rs. 1,17,43,210/-was seized; that in his statement recorded under section 132(4) of the Act on 10.10.2014, Shri Banna Lal Jat stated that the cash found from his residence was unexplained and that it was generated by inflating the expenses in the books of accounts; that the cash books of his various business concerns were incomplete; that accordingly, Shri Banna Lal Jat surrendered said cash in the case of the present assessee company as undisclosed income. Record reveals that subsequently the director of assessee company retracted the abovesaid statement i.e. of Shri Banna Lal Jat, claiming that same was incorrect and made under pressure. Admittedly, the surrender or disclosure by way of surrender was retracted after a long period. Learned DR for the department has rightly submitted that retraction of the surrender after a long period is of no M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. evidentiary value. No material was placed on record to justify the retraction after such a long period. Fact remains that in his statement recorded on 10.10.2014, Shri Banna Lal Jat had voluntarily admitted that the cash found was undisclosed income of M/s Banna Lal Jat Construction Pvt. Ltd. Nothing has been brought on record to prove that said surrender or disclosure by shri Banna Lal Jat was under any kind of pressure. Immediately, after the surrender or disclosure, or at the time of making thereof, no protest was lodged by him before the authorities concerned claiming that the surrender or disclosure was under pressure. Record reveals that Shri Banna Lal Jat admitted in his statement recorded on 10.10.2014 that books of account of the assessee company were written upto 9.10.2014 only and that expenses for the last ¾ months were yet to be entered. It was found that record of transactions was being maintained on diaries and loose papers, which is not permissible in any of the methods of Accounting. No material has been placed on record to justify as to why Shri Banna Lal Jat did not state in his statement recorded on 10.10.2014 that the cash found from his residence actually pertained to proprietorship concern M/s Banna Lal Jat Contractor. No cogent and convincing evidence M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. has been led by the assessee to establish nexus between the amount(s) said to have been withdrawn from the bank account with the cash recovered, particularly, when admittedly, at the time of search and survey, the account books had not been maintained upto date. In view of the above discussion, we are of the considered view that the abovesaid claim put forth by the assessee does not stand established at all.
Another contention raised by Ld. AR for the appellant is that rate penalty i.e. 60% came into application with effect from 01.04.2017 due to the amendment made in section 271AAB of the Act, especially because of substitution of clause(c) thereof, whereas present case pertains to violation of the provisions as in force during the year under consideration i.e. F.Y. 2014-15. Therefore, the contention is that penalty could be imposed as per law applicable on the date of violation of the provision of law, and not as on the date of passing of the penalty order. In support of this contention, Ld. AR has relied on B.N. Sharma vs. CIT (1997) 226 ITR 442 (SC). In this regard, suffice it to state that no submission to the contrary has been put forth by ld. DR for the department.
As noticed above, cash to the tune of Rs. 1,21,43,210/- recovered from the residence of Shri Banna Lal Jat, as per his own admission in the M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. statement recorded on 10.10.2014, belonged to the assessee company and said income remained unexplained. During the relevant period, the relevant provision i.e. clause (c) prescribed the penalty of a sum which shall not be less than 30%, but shall not exceed 90% of the undisclosed income of the specified previous year, if it was not covered by the provisions of clauses (a) and (b). Both the authorities went wrong in applying the amended provision of law with retrospective effect and against the settled law. Finding merit in the contention, the penalty imposed @ 60% of the undisclosed income of the specified previous year deserves to be modified. In the course of arguments, learned AR for the appellant has submitted that Shri Banna Lal Jat is a 70 years old person and that lenient view may be taken. Having regard to all the facts and circumstances, we deem it a fit case to reduce the penalty to the minimum prescribed i.e. 30% of the undisclosed income of the specified previous year. It is ordered accordingly. Result 17. In view of the above discussion, findings and the relief prayed for by the appellant, this appeal is partly allowed by reducing the penalty to the M/s Banna Lal Jat Constructions Pvt. Ltd., Bilwara. minimum prescribed i.e. @ 30% of the undisclosed income. The impugned order passed by Learned CIT(A) and the penalty order passed by the Assessing Officer are modified accordingly. File be consigned to the record room after the needful is done by the office. Order pronounced in the open court on 23/07/2025. Sd/- Sd/- ¼xxu xks;y½ ¼ujsUn dqekj½ (GAGAN GOYAL) (NARINDER KUMAR) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 23/07/2025 *Santosh आदेश की प्रतिलिपिअग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू The Appellant- M/s Banna Lal Jat Constructions Pvt. Ltd., Bhilwara. 1. 2. izR;FkhZ@ The Respondent- DCIT, Central Circle, Ajmer. 3. vk;djvk;qDr@ Theld CIT 4. विभागीय प्रतिनिधि] आयकरअपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZQkbZy@ Guard File vkns'kkuqlkj@ By order,
सहायकपंजीकार@Aेेजज. त्महपेजतंत