M/S. GLOBAL HERITAGE VENTURE LTD.,NEW DELHI vs. DCIT, NEW DELHI

O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER

This is an appeal filed by the assessee directed against the order of the Ld. Commissioner of Income Tax (Appeals)-XXXI, New Delhi dated 27.11.2013 on the following grounds . “1. The Ld.CIT(A), erred in law and facts by confirmed the penalty of Rs.29,38,783/- u/s 271AAA of the Act.

2. The assessee craves leave for addition, modification, deletion, any of the grounds of appeal either before hearing of appeal or at the time of appeal.”

2. After hearing rival contentions we find that in this case the assessment has been completed under section 153C of the Income Tax Act,1961(the Act) penalty is not leviable under section 271 AAA of the Act as no search was conducted on the assessee under section 132 of the Act. Section 271 AAA of the Act gets triggered in only those cases where search has been initiated

ITA 151/Del/2014 A.Y. 2009-10 M/s Global Heritage Ventures Ltd. (Formerly known as M/s Krishna Buildwell & Developers Pvt.Ltd.) under section 132 of the Act on or after the 1st day of June,2007 but before the 1st day of July,2012. In the case of the assessee only a survey under section 133A of the Act was carried out. Assessment was completed under section 143 of the Act. 2.1. Thus the issue is squarely covered by the decision of the Hon’ble ITAT “B” Bench, New Delhi in case of one of the group company M/s DD Resorts Private Ltd vs. DCIT in & 1104/Delhi/2014 dated 11th April, 2016 wherein at para 16 it was held as follows. “16. We have heard both the sides and perused the material on record. We find that in this case, search u/s 132 of the Act was not carried out in the case of the assessee company whereas a survey was carried out u/s 132 of the Act was not carried out u/s of the Act at the project site of the assessee company, and additions were made on the basis of statement recorded by Rakesh Kumar Garg of M/s Rajdarbar Group u/s 132 (4) of the Act on the assessee company. The AO initiated penalty u/s 271AAA of the Act and levied a penalty of Rs.50 lakhs on the assessee company. The Id.CIT (A) has upheld the order of the AO. The assessee is aggrieved by the order of the Id. CIT (A) and has now preferred an appear before us. The short question, that is being canvassed before us, is whether penalty u/s 271AAA can be levied against the assessee or not. The penalty u/s 271AAA can be triggered only if search has been initiated against the assessee u/s 132 of the Act on or after 1.6.2007 and within 01st day of July, 2012. Now, the thrust of the argument is that no search u/s 132 has been carried out against the assessee company. In order to buttress, this argument of his, he has also taken our attention to the fact that pursuant to the search u/s 132 of the Act in the case of M/s Rajdarbar Group, section 153C proceedings were initiate against the Essessee company. It was pointed out by the Id. AR that if the search had been initiated u/s 132 of the assessee company then, proceedings u/s 153A of the Act should have been initiated against the assessee company. We find that on a perusal of the assessment order; pursuant to the search carried out at M/s Rajdarbar Group, the proceedings were initiated u/s ITA 151/Del/2014 A.Y. 2009-10 M/s Global Heritage Ventures Ltd. (Formerly known as M/s Krishna Buildwell & Developers Pvt.Ltd.) 153C against the assessee company, and the case was transferred to the Central Circle 5, New Delhi u/s 127 of the Act by the orders of CIT, Central I, New Delhi vide order dt. 25.3.2010. Thus we find that in the submission of the Ld.AR that no search u/s 132 was initiated against the assessee company and only survey operation u/s 133(4) was initiated against the assessee company. In the factual scenario, we have to see whether an AO can initiate 271AAA penalty provisions against the assessee company. A bare reading of section 271AAA shows that, “the AO may direct that, in a case where search has been initiated u/s 132…” which clearly spells out that section 271AAA provision get attracted only if search has been initiated u/s 132 of the Act. Here, in this case, we find that no search has been carried out against the assessee company. So, section 271AAA cannot be initiated against the assessee company. Therefore, we allow the claim of the assessee and delete the penalty levied against the assessee u/s 271AAA of the Act.” 2.2. Respectfully following the decision of the Coordinate Bench of the Tribunal on the very same issue, we uphold the contention of the assessee and cancel the penalty levied under section 271 AAA of the Act. In the result the appeal of the assessee is allowed.

Sd/- Sd/- (C.M. GARG) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: the 06th January, 2017.

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ITA 151/Del/2014 A.Y. 2009-10 M/s Global Heritage Ventures Ltd. (Formerly known as M/s Krishna Buildwell & Developers Pvt.Ltd.)