UMESH KYAL,KOLKATA vs. A.C.I.T., CC - 3(2),, KOLKATA

Contrary to that, the ld. DR supports the impugned order.

We have considered the submissions of the counsels of the respective parties and perused the material available on record. We find that the assessee filed return of income declaring total income of Rs.70,12,560/-, a search operation was conducted and a cash of Rs.83,26,000/- was found out of which cash of Rs. 75,00,000/-was seized. We also find that since the assessee did not prefer appeal and a penalty @60% u/s 271AAB(1A)(b) of the Act was levied by the Assessing Officer instead of 30% u/s 271AAB(1A)(a) of the Act. We have gone through the Panchnama which has been filed by the assessee and find that it was drawn in the name of family members of Kyal group and there are nine persons in the Panchnama. We note that the assessee in reply before the Assessing Officer had clearly stated that cash found and seized pertained to income of the family members from commission and the same have been duly recorded in the books of account and offered for tax. It is pertinent to mention here that the amount has clearly been disclosed in the commission and have been duly recorded in the Books of accounts and offered for tax. We have gone through the statement Umesh Kyal recorded by the authority during the search and find that no specific question pertaining to cash found asked while recorded statement u/s 132(4) of the Act. It is pertinent to mention that statement was recorded u/s 132(4) of the of Shri Umesh Kyal and Shri Rahul Kyal and none of the other persons whose name appeared in the Panchnama had been required to make a statement u/s 132(4) of the Act. We find that from the statement so recorded u/s 132(4) of the Act, it is clear that the authorized officers have not enquired from the persons whose premises have been searched or examined on oath who were in possession of control of any Books of accounts, documents, money, bullion or other valuable article and have not examined the source of the cash found as well as the jewelleries and ornaments. The moot question arises for consideration is that whether the failure in not admitting the income u/s 132(4) of the Act by the assessee is his failure or the failure of the authorized officer during search proceedings in not putting the question which he ought to have to the assessee to explain the money and valuables found and whether the authorized officer enquired about the same and there would not have been reply to the same or acceptance of the income undisclosed, then admittedly provisions of section 2771AAB(1A)(b) would have come into play but there was no mention in respect of the questions having been put to the assessee to explain the source of cash and/or the jewelleries found. We further note that when question has not been put to the assessee then it is the case of the assessee that the conditions as provided in provisions of section 271AAB(1A)(a)(i) &(ii) of the Act could not have been fulfilled because of the lapses on the part of the authorized officer. We further find that a plain reading of the provisions of section 271AAB of the Act suggests that the Assessing Officer may direct that in a case where Search has been initiated u/s 132 of the Act, the assessee shall pay by way of penalty in addition to tax and the sub-section thereon provides the rate Umesh Kyal in sub-section (a) at the rate of 30% and in cases not covered in sub- section (a) then under sub-section (b) will come wherein the rate of 60% was come in force. As we have already discussed that nowhere the authorized officer has enquired into and examined the source of the cash found as well as the jewelleries and ornaments which ought to have been done and in fact, the authorized officer on both the occasions have explained the persons whose Statements were recorded about the provisions of section 181, 177, 277A, 278 etc. but had not drawn their attention to the searched parties to the provision of section 132(4) r.w.s 271AAB of the Act in respect of the assets and valuable found. We further find that this being so then the search party would have definitely declared the undisclosed income in the statement u/s 132(4) and the same would have triggered the amount of penalty leviable @ 30% and not 60%. The present case reveals that the total amount of addition made u/s 69Aof the Actis Rs.22,84,839/-and assessee has declared an amount of Rs.4,14,900/-in the return of income so we are in the view that in respect of income which has been declared in the ITR amounting to Rs.4,14,900/-penalty should be levied under the provisions of sec271AAB(1A)(a) @30% and the amount i.e Rs.18,69,939/-which has not been declared in the ITR treated as unexplained u/s 69A of the Act the penalty should be levied under the provisions @60%.

In the result, the appeal filed by the assessee is allowed for statistical purposes. Assessing officer is directed to compute the same in the manner discussed above.