No AI summary yet for this case.
Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM vk;dj vihy la-@ITA No. 764/JP/2016
PER SHRI KUL BHARAT, J.M. This is an appeal filed by the assessee against the order of ld. CIT (A)- 4, Jaipur dated 15.06.2016 pertaining to A.Y. 2010-11. The assessee has raised the following grounds of appeal :-
“Under the acts and in the circumstances of the case and in law the worthy CIT(A)-4, Jaipur has erred in confirming the penalty imposed under section 271AAA of It Act, 1961 amounting to Rs. 3,00,000/- on the surrendered income of Rs. 30,00,000/- declared in the Income-tax return filed u/s 153A of IT Act, 1961 by holding that the assessee has
2 ITA No. 764/JP/2016 Shri Vishnu Prasad Maharwal
not clarified and failed to substantiate the manner in which the assessee had derived undisclosed income. 2. The assessee prays for leave to add, to amend, to delete, to modify the all or any grounds of appeal on or before the hearing of appeal.”
The only effective ground is against sustaining the penalty under
section 271AAA of the Income Tax Act, 1961(hereinafter referred to as the
Act).
Briefly, stated the facts are that a search action was under section 132
of the Act in Shri Mahaveer Singh Sankhala Group on 23/7/2009 in response
of the notice that assessee under section 142(1) of the Act. The assessee
stated that a return of income is already filed on 30/09/2010 declared total
income of Rs. 70,24,010/-. While framing the assessment, the assessing
officer initiated penalty proceedings under section 271AAA on the amount of
Rs. 30 lakhs. Subsequently, a penalty order under section 271AAA of the Act
was passed on the ground that assesee has neither specified the manner in
which income has been derived nor substantiate the manner of deriving such
undisclosed income. Thereby, the assessing officer levied a penalty of 3 lakhs
at the rate of 10% of undisclosed income. Aggrieved by this, the assessee
preferred an appeal before Ld. CIT (A), who after considering the submissions
dismiss the appeal.
3 ITA No. 764/JP/2016 Shri Vishnu Prasad Maharwal
Now, the assesse in further appeal before this Tribunal. The Ld.
Counsel for the assessee reiterated the submission as made in the written
brief.
4.1 On the contrary, ld. Departmental Representatives opposed the
submissions and submitted that the provisions are clear. There is no
confusion it is incumbent upon the assessee to demonstrate the manner in
which the undisclosed income was earned.
4.2 We have heard the rival contentions, perused the material available
records. There is no dispute with regard to the fact that the surrendered
income was duly disclosed into the return of income by the assessee.
However, the penalty was imposed on the ground that the assessee has not
substantiated the manner in which the undisclosed income was earned as per
271AAA of the Act. The Assessing Officer in a case, where search has been
initiated direct the assessee to pay by way of penalty if any payable by him a
computed at the rate of 10% of the undisclosed income of specified previous
year. However, sub-section (1) would not be applicable if the assessee in the
case of search in a statement under sub-section 132(4) admits the
undisclosed income and specify the manner in which such income has been
derive substantiate the manner and undisclosed income was derived and pays
the tax together with interest if any in respect of undisclosed income. In the
4 ITA No. 764/JP/2016 Shri Vishnu Prasad Maharwal
present case, the assessee has admitted an undisclosed income paid the tax
together with interest in respect of the undisclosed income. However, the
Assessing Officer imposed penalty on the basis that the assessee failed to
substantiate the manner and undisclosed income was derived. We find that
during the statement recorded u/s 132(4) enclosed at paper book page nos. 9
to 17, the assessee had admitted the undisclosed income in answer to
question no. 18. The ld. Counsel for the assessee submitted that Assessing
Officer did not ask the assessee to specify the manner and substantiate the
manner in which the undisclosed income was earned. He submitted that
under the identical facts the coordinate bench in the case of ACIT Vs. M/s
Kanakia Spaces Pvt. Ltd. in ITA No. 6763(Mum)/2011 deleted the penalty on
the ground that assessee was not asked about the manner in which such
income was earned also to substantiate the manner in which undisclosed
income was derived. He submitted that the Coordinate Bench has relied upon
the judgment of Hon’ble Allahabad High Court rendered in the case of CIT Vs.
Radha Kishan Goel (2005) 278 ITR 454(All). The reliance is also placed upon
the judgment of the Hon’ble Gujarat High Court rendered in the case of CIT
Vs. Mahender C. Shah 299 ITR 305.
4.3 We have considered the rival contentions. There is no dispute with
regard to the fact the assessee as per section 271AAA is required to admit the
undisclosed income and specify the manner in which such income has been
5 ITA No. 764/JP/2016 Shri Vishnu Prasad Maharwal
derived, substantiate the manner in which the undisclosed income was
derived and pays the tax together with interest if any in respect of
undisclosed income. The contention of the assessee is that, that no question
was posed while recording the statement under section 132(4) or
substantiating the manner in which the income has been derived. It is
contended that if no question is asked than the assessee is not required to
substantiate the manner in which the income was derived. The Hon’ble
Gujarat High Court in the case of CIT Vs. Mahender C. Shah 299 ITR 305 has
held that so far as alleged failure on the part of the assessee to specify in the
statement u/s 132(4) of the Act, regarding the manner in which such income
has been derived, suffice it to state that when the statement is being
recorded by the Authorized Officer, it is incumbent upon the Authorized
Officer to explain the provision of Explanation 5 in its entirety to the assessee
concerned and the Authorized Officer cannot stop short at a particular stage
so as to permit the revenue to take advantage of such a lapse in the
statement. The reason is not far to seek. In the first instance, the statement
is being recorded in the question and answer form and there would be no
occasion for an assessee to state and make averment in the exact format
stipulated by the provisions, considering the setting in which statement is
being recorded. The Hon’ble Court further affirmed the view of the Hon’ble
Allahabad High Court and the Tribunal to the effect that even if the statement
does not specify the manner in which the income is derived, if the income is
6 ITA No. 764/JP/2016 Shri Vishnu Prasad Maharwal
declared and tax thereon paid, there would be substantial compliance not
warranting any further deny of the benefit under Act exception no. 2 in
Explanation 5 is commendable. Hon’ble Allahabad High Court in the case of
CIT Vs. Radha kishan Goel 278 ITR 454 (Supra) has held that u/s 132(4) of
the Act unless the Authorized Officers puts a specific question with regard to
the manner in which income has been derived, it is not expected from the
person to make a statement in this regard and in the case in the statement
the manner in which income has been derived has not been stated, but it has
been stated subsequently, that amounts to compliance with explanation 5(2)
of the Act. It was further held that, in the absence of specific statement
about the manner in which such income has been derived it can be inferred
that such undisclosed income was derived from the business he was carrying
on from other sources. The object of the provision is achieved by making this
statement admitted the non-disclosure of money, bullion, jewellery etc.
Therefore, it was held that much importance should not be attached to the
statement about the manner in which such income has been derived it can be
inferred on the facts and circumstances of the case, in the absence of
anything to the contrary. Therefore, mere non-statement of the manner in
which has income was derived would not make explanation 5(2) in applicable
4.4 In the light of the above judgment when in the present case also
admittedly, there is no specific query by the Assessing Officer, hence, the
7 ITA No. 764/JP/2016 Shri Vishnu Prasad Maharwal Assessing Officer was not justified in imposing the penalty. Therefore, we
hereby direct the Assessing Office to delete the penalty.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 10/03/2017.
Sd/- Sd/- ¼Hkkxpan½ ¼ dqy Hkkjr ½ (BHAGCHAND) (Kul Bharat) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 10/03/2017. Pooja/- आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Shri Vishnu Prasad, Maharwal-60, jaipur. 1. izR;FkhZ@ The Respondent- The ACIT, Central Circle-1, Jaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 764/JP/2016) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत
8 ITA No. 764/JP/2016 Shri Vishnu Prasad Maharwal