Appeal Details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 3215 (ITAT-NAGPUR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 year(s) 5 month(s) 9 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
16-04-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Assessment Year
2009-2010
Appeal Filed On
07-11-2012
Judgement Text
, - IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , ( E - COURT), MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI RAJENDRA , A M ITA NO. 381 / N AG / 20 1 2 ( ASSESSMENT YEAR S : 200 9 - 10 ) CONCRETE DEVELOPERS, 151 - 152, ANJALI APARTMENT, GANDHI NAGAR, NAGPUR. VS. ACIT, C(C) - 2(2), CIVIL LINES, NAGPUR. PAN/GIR NO. : A AAFC 6294 L ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : MR. M.MANI /REVENUE BY : DR. M.BHUSARI DATE OF HEARING : 4 TH FEB ., 201 3 DATE OF PRONOUNCEMENT : 20 TH MARCH, 201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH IS APPEAL HA S BEEN PREFERRED BY THE ASSESSEE BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAINST THE ORDER OF LEANED CIT (A) - I , NAGPUR (MAHARASHTRA) RELATING TO THE ASSESSMENT YEAR 20 09 - 10 , WHICH HA S BEEN HEARD THROUGH E - COURT, MUMBAI . 2 . THE ASSESSEE IS OBJECTING THE INACTION ON THE PART OF THE LEARNED CIT(A) IN UPHOLDING THE PENALTY MADE BY THE AO UNDER SECTION 271AAA RELATING TO THE ASSESSMENT YEAR 2009 - 10 AT RS. 22,10,000/ - 3 . BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT ON 13 - 01 - 2009 AT THE BUSINESS PREMISES OF THE ASSESSEE AND RESIDENTIAL PREMISES OF THE ITA NO .381 /20 1 2 2 PARTNERS OF THE ASSESSEE FIRM. DURING THE COURSE OF SEARCH CERTAIN INCRIMINATI NG DOCUMENTS, JEWE LLER Y AND CASH WERE FOUND AND SEIZED. RETURN OF INCOME WAS FILED U/S 139 (1) ON 26 - 09 - 2009 DECLARING TOTAL INCOME OF RS. 2,79,43,762/ - . THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 21 - 12 - 2010 AND PENALTY WAS ALSO INITIATED U/S 27IAAA. DURING THE SEARCH CASH OF RS. 67 L AKHS WAS FOUND AND SEIZED. THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF CASH FOUND AT THE TIME OF SEARCH. A STATEMENT U/S 132(4) OF SHRI NITISH CHORDIA, PARTNER OF CONCRETE DEVELOPERS WAS RECORDED BY WHICH THE ASSESSEE HAS OFFER ED FOR TAXATION AN AMOUNT OF RS. 67 LAKHS AS UNEXPLAINED CASH AND ADDITIONAL INCOME OF RS. 1.5 3 CRORES IN THE HANDS OF M/S CONCRETE DEVELOPERS TO COVER UP OTHER DISCREPANCIES. NOTICE OF PENALTY REQUIRING ASSESSEE TO SHOW CAUSE WHY PENALTY U/S 271AAA SHOULD NOT BE LEVIED WAS ISSUED ON 13 - 05 - 2011. DURING THE PENALTY PROCEEDINGS A.O. HAS HELD THAT THE ASSESSEE COULD NOT SPECIFY THE MANNER IN WHICH THE UNDISCLOSED INCOME HAS BEEN DERIVED AND FURTHER COULD NOT SUBSTANTIATE THE MANNER IN WHICH SUCH INCOME WAS DER IVED. THEREFORE AO HAS LEVIED PENALTY U/S 271AAA OF RS. 22,10,000/ - BEING 10% OF THE UNDISCLOSED INCOME OF RS. 2,21,00,000/ - FOR AY 2009 - 10. 4 . THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) , BEFORE WHOM THE DETAIL SUBMISSIONS WERE FILED, WHICH ARE RECOR DED IN THE ORDER OF THE CIT(A) IN PARA 4. THE SUBMISSION FILED ON BEHALF OF THE ASSESSEE WAS FORWARDED TO THE AO FOR HIS REMAND REPORT AND REMAND REPORT WAS RECEIVED. THEREAFTER REPLY IN RESPONSE TO REMAND REPORT WAS ALSO ITA NO .381 /20 1 2 3 RECEIVED FROM THE ASSESSEE. THE RE MAND REPORT AS WELL AS REPLY RECEIVED FROM THE ASSESSEE IS ALSO INCORPORATED IN THE ORDER OF THE LEARNED CIT(A) IN PARA 4 TO 6 OF HIS ORDER. RELIANCE WAS PLACED ON VARIOUS CASE LAWS. AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, LEA RNED CIT(A) HELD THAT THE ASSESSEE HAS NOT FULFILLED THE CONDITIONS FOR NOT LEVYING THE PENALTY, THEREFORE, THE AO WAS JUSTIFIED IN LEVYING THE PENALTY. IT WAS ALSO SUBMITTED BEFORE THE CIT(A) THAT TO SUBSTANTIATE THE DISCLOSURE NO SPECIFIC QUERY WAS MADE, WHEREAS, LEARNED CIT(A) FOUND THAT THE QUERY WAS MADE AND IN RESPONSE TO THAT, A REPLY WAS FILED, HOWEVER, THAT IS NOT IN CONSONANCE WITH THE CONDITION LAID DOWN UNDER SECTION 271AAA FOR NOT LEVYING PENALTY. ACCORDINGLY, HE CONFIRMED THE ORDER OF THE AO FOR LEVYING PENALTY. 5 . NOW, THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 6 . THE CONTENTIONS RAISED BEFORE THE LOWER AUTHORITIES WERE REITERATED HERE BEFORE THE TRIBUNAL BY THE LEARNED AR OF THE ASSESSEE . THE ATTENTION OF THE BENCH WAS DRAWN ON VARIOUS DETAILS PLACED IN THE PAPER BOOK . COPY OF THE STATEMENT RECORDED AT THE TIME OF SEARCH IS ALSO PLACED ON RECORD. RELIANCE HAS BEEN PLACED ON VARIOUS CASE LAWS, COPIES OF WHICH ARE PLACED IN THE COMPILATION. IT WAS FURTHER EXPLAINED THAT A SUM OF RS . 67 LAKHS IN CASH WAS FOUND DURING THE COURSE OF SEARCH AND IT WAS STATED THAT THIS IS UNACCOUNTED MONEY EARNED BY THE FIRM. REGARDING ANOTHER SUM OF RS. 1 . 5 3 CRORE , IT WAS STATED THAT NO MATERIAL WAS FOUND, HOWEVER, JUST TO BUY PEACE AND AS THERE WERE ITA NO .381 /20 1 2 4 CERT AIN DISCREPANCY IN THE PAPER WHICH COULD NOT BE EXPLAINED AT THE TIME OF SEARCH, THE AMOUNT WAS OFFERED FOR TAXATION. IT WAS STATED THAT RETURN OF INCOME WAS NOT DUE OF THE ASSESSEE AND NO MATERIAL IN RESPONSE TO INCOME OF RS. 1. 53 CRORE WAS FOUND , WHICH WA S DECLARED BY THE ASSESSEE JUST TO AVOID LITIGATION, THEREFORE, PENALTY IS NOT LEVIABLE. IT WAS FURTHER STATED THAT DURING THE ASSESSMENT PROCEEDING, IT WAS EXPLAINED BEFORE THE AO THAT ENTIRE INCOME OFFERED FOR TAXATION IS ASSESSABLE UNDER THE HEAD BUSIN ESS INCOME AND, THEREFORE, IT HAS TO BE TAKEN THAT THE ASSESSEE HAS EXPLAINED THE SOURCE OF INCOME WHICH WAS NOT DISCLOSED BEFORE SEARCH PARTY . THE TAX HAS ALREADY BEEN PAID ON THAT AMOUNT. ACCORDINGLY, IT HAS TO BE TAKEN THAT THE CONDITIONS ARE SATISFIED FOR NOT LEVYING THE PENALTY UNDER SECTION 271AAA OF THE ACT. FURTHER, R ELIANCE WAS PLACED IN CASE REPORTED IN 216 ITR 208 7 . ON THE OTHER HAND LEARNED D R HAS PLACED RELIANCE ON THE ORDER OF THE LEARNED CIT(A). PART OF THE ORDER OF THE LEARNED CIT(A) WAS ALSO READ. ATTENTION OF THE BENCH WAS DRAWN ON PAGES 1 TO 3 OF THE PAPER BOOK, WHERE A COPY OF THE STATEMENT OF THE PARTNER IS PLACED. 8 . LEARNED COUNSEL OF THE ASSESSEE IN REJOINDER STATED THAT COPY OF STATEMENT OF THE PARTNER IS PLACED AT PAGES 1 TO 3 OF THE PAPER BOOK AND IN THE STATEMENT THE PARTNER HAS CATEGORICALLY STATED THAT HE IS OFFERING THE AMOUNT OF RS. 2.21 CRORE CONDITIONALLY AS NO PENALTY SHOULD BE LEVIED. ATTENTION OF THE BENCH WAS DRAWN ON LAST PARA OF THE STATEMENT RECORDED. ITA NO .381 /20 1 2 5 9 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDERED THEM CAREFULLY. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE FOUND THAT THE ASSESSEE DESERVES TO SUCCEED IN ITS APPEAL. THE PROVISIONS OF SECTION 271AAA ARE NEW PROVISIONS, WHICH ARE BROUGHT ON THE STATUTE W.E.F. 1 - 4 - 2007. THE PROVISIONS OF SECTION 271AAA, READ AS UNDER : - 271AAA . (1) THE ASSESSING OFFICER 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 1 ST DAY OF JUNE, 2007, THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM COMPUTED AT THE RATE OF TEN PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. (2) NOTHING CONTAINED IN SUB - SECTION (1) SHALL APPLY IF THE 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) SUBSTANTIAT ES THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED; AND (III) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. (3) NO PENALTY UNDER THE PROVISION OF CLAUSE (C) OF SUB - SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPO N THE ASSESSEE IN RESPECT OF THE UNDISCLOSED INCOME REFERRED TO IN SUB - SECTION (1). (4) THE PROVISIONS OF SECTIONS 274 AND 275 SHALL, SO FAR AS MAY BE, APPLY IN RELATION TO THE PENALTY REFERRED TO IN THIS SECTION. EXPLANATION - FOR THE PURPOSES OF THIS SE CTION, - (A) 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 TRAN SACTIONS 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 RELATING TO SUCH PREVIOUS YEAR; OR (B) OTHERWISE NOT BE EN DISCLOSED TO THE CHIEF 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 DOCUME NTS MAINTAINED IN THE NORMAL COURSE RELATING TO THE SPECIFIED PREVIOUS YEAR WHICH IS FOUND TO BE FALSE AND WOULD ITA NO .381 /20 1 2 6 NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED; (B) SPECIFIED PREVIOUS YEAR MEANS THE PREVIOUS YEAR - (I) WHICH HAS ENDED BEF ORE THE DATE OF SEARCH, BUT THE DATE OF FILING 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 SAID D ATE; OR (II) IN WHICH SEARCH WAS CONDUCTED. ON A BARE PERUSAL OF THE PROVISIONS OF SECTION 271AAA , IT IS SEEN THAT THESE PROVISIONS ARE BROUGHT IN PLACE OF SECTION 271(1) (C) OF THE ACT. IN SUBSECTION 2, IT HAS BEEN PROVIDED THAT IF IN THE STATEMENT UNDER SECTION 132(4) , THE ASSESSEE ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND ALSO SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED AND PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RES PECT OF THE UNDISCLOSED INCOME . T HERE IS NO DISPUTE THAT THE ASSESSEE HAS PAID TAX TOGETHER WITH INTEREST IN RESPECT OF THE AMOUNT DISCLOSED DURING THE COURSE OF SEARCH. THE REMAINING CONDITION THAT THE ASSESSEE HAS TO SPECIFY THE MANNER AND HAS TO SUBSTAN TIATE THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED , I T HAS BEEN STATED BY THE ASSESSEE THAT THIS IS UNDISCLOSED INCOME OF THE FIRM WHICH IS DOING ONLY BUSINESS. DURING THE COURSE OF ASSESSMENT PROCEEDING ALSO, THE ASSESSEE HAS EXPLAINED THE NATUR E OF INCOME WHICH WAS NOT DISCLOSED BEFORE THE SEARCH. IT WAS EXPLAINED THAT THE INDEPENDENT INCOME IS TO BE ASSESSED UNDER THE HEAD BUSINESS INCOME AND THE AO HAS ACCEPTED THIS CONTENTION OF THE ASSESSEE AS THE ASSESSMENT HAS BEEN COMPLETED BY TAKING THE DISCLOSED INCOME UNDER THE HEAD BUSINESS INCOME. COPY OF THE ASSESSMENT ORDER IS PLACED ON RECORD. THEREFORE, ITA NO .381 /20 1 2 7 IT CANNOT BE SAID THAT THE ASSESSEE HAS NOT SPECIFIED THE MANNER OR COULD NOT SUBSTANTIATE THE MANNER IN WHICH THE INCOME WAS DERIVED AS THE ASSES SEE HAS EXPLAINED THAT THIS IS AN UNEXPLAINED INCOME OF THE ASSESSEE RELATES TO FIRM WHICH WAS DOING ONLY BUSINESS ACTIVITIES. EXCEPT RS. 67 LAKHS, NO ASSET OR MATERIAL WAS FOUND, HOWEVER, THE ASSESSEE HAS DISCLOSED A SUM OF RS.1. 5 3 CRORES FURTHER FOR THE R EASON THAT CERTAIN LOOSE PAPERS, WHICH WERE FOUND DURING THE COURSE OF SEARCH AND DISCREPANCIES IN THOSE PAPERS COULD NOT BE EXPLAINED BY THE ASSESSEE, THEREFORE, THE ASSESSEE CAME FORWARD TO DISCLOSED THE TOTAL AMOUNT OF RS. 2.21 CRORE, SUBJECT TO NON LEVY OF PENALTY. COPY OF THE STATEMENT IS PLACED AT PAGES 1 TO 3 AND IN THE LAST PARA OF THE STATEMENT, IT HAS BEEN STATED THAT THE ABOVE DISCLOSURE IS VOLUNTARILY GIVEN DURING THE COURSE OF SEARCH PROCEEDING UNDER SECTION 132(4) OF THE ACT. IT IS REQUESTED TH AT NO PENALTY PROCEEDING BE INITIATED AND BENEFIT OF PROVISION OF SECTION 271 AAA OF THE ACT MAY PLEASE BE GIVEN TO THE ASSESSEE. IT CLEARLY SHOWS THAT THE ASSESSEE HAS REQUESTED TO COVER HIS CASE UNDER THE EXCEPTION CLAUSE OF SUB SECTION 2 OF SECTION 271A AA OF THE ACT. IN OUR VIEW, THIS PART OF THE STATEMENT SHOULD BE READ AS HARMONIOUSLY AND IT SHOULD BE TAKEN THAT THE ASSESSEE HAS SATISFIED THE CONDITIONS FOR NOT LEVYING THE PENALTY UNDER SECTION 271AAA. 9 .1 THE MOST SIGNIFICANT CONTENTION IS THAT THE T AX ALONG WITH INTEREST SHOULD HAVE BEEN PAID, WHICH HAS ALREADY BEEN PAID BY THE ASSESSEE AND THERE IS NO DISPUTE IN THAT RECORD . ITA NO .381 /20 1 2 8 [ 9.2 THE KOLKATA BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. PIONEER MARBLES & INTERIORS (P) LTD., REPORTED IN 144 TTJ 66 3 , HAS HELD THAT IF THE IMPUGNED TAX IS PAID BEFORE COMPLETION OF ASSESSMENT, THEN THE CONDITION LAID DOWN UNDER SECTION 271AAA SHOULD BE TREATED AS SATISFIED. WHILE HOLDING SO, THE DIRECT DECISION OF THE HON BLE GUJARAT HIGH COURT IN THE CASE OF MAHENDRA C. SHAH , REPORTED IN 299 ITR 305 WAS FOLLOWED, WHEREBY IT WAS HELD THAT THERE IS NO PRESCRIPTION ABOUT THE POINT OF TIME WHEN THE TAX HAD TO BE PAID QUA THE AMOUNT OF INCOME DECLARED IN THE STATEMENT UNDER SECTION 132(4) OF THE ACT. 9.3 IN THE PRESENT CA SE ALSO, THE ASSESSEE HAS TO SPECIFY THE MANNER AND SUBSTANTIATE THE MANNER BY WHICH THE UNDISCLOSED INCOME WAS DERIVED. DURING THE ASSESSMENT PROCEEDING, THE ASSESSEE HAS EXPLAINED THAT THE ENTIRE AMOUNT OF DISCLOSURE SHOULD BE TREATED AS BUSINESS INCOME AND THE AO HAS ACCEPTED THE SAME AS THE ASSESSMENT HAS BEEN COMPLETED BY ASSESSING THE AMOUNT OF RS. 2.21 CRORE UNDER THE HEAD BUSINESS INCOME. THEREFORE, WE ARE OF THE VIEW THAT THE RATIO OF THE DECISION OF THE KOLKATA BENCH IS APPLICABLE ON THE PRESENT FA CTS OF THE CASE. 9 . 4 THE HON BLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & ORS. REPORTED IN 167 ITR 471 , HAS HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBS TANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE DELAY .' ITA NO .381 /20 1 2 9 THOUGH THESE OBSERVATIONS WERE GIVEN BY THE HON BLE SUPREME COURT IN RESPECT TO CONDONATION OF D ELAY IN APPEAL, HOWEVER, THE SUBSTANCE OF THIS JUDGMENT CAN BE SEEN IN THE LIGHT OF THE FACTS OF THE PRESENT CASE. SUPPOSE, THE ASSESSEE TECHNICALLY COULD NOT EXPLAIN THE MANNER OF EARNING OF INCOME AND COULD NOT SUBSTANTIATE THE MANNER OF EARNING OF UNDIS CLOSED INCOME BUT THE SUBSTANTIAL JUSTICE SHOULD NOT BE DEFEATED. NOT SUBSTANTIATING THE MANNER AT THE TIME OF SEARCH IS NOTHING BUT A TECH NICAL DEFAULT . THE ASSESSEE HAS DECLARED THAT THIS IS UNDISCLOSED INCOME AND THE SAME IS DISCLOSED UNDER SECTION 132( 4), SUBJECT TO TAKING THE CONDITION FOR NOT LEVYING THE PENALTY UNDER SECTION 271AAA ARE SATISFIED. 9 . 5 IN CASE OF ASHOK KUMAR SHARMA & OTHERS VS. DCIT, REPORTED IN 77 DTR 241 , ON SIMILAR FACTS, THE PENALTY LEVIED BY THE AO HAS BEEN DELETED BY THE TRIBUN AL. THE TRIBUNAL HAS HELD THAT THE ASSESSEE HAVING D ISCLOSED THE CONCEALED INCOME WHILE GIVING STATEMENT UNDER SECTION 132(4) DURING THE COURSE OF SEARCH AND PAID THE TAX THEREON AND THE INCOME FROM BUSINESS WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT, THE P ENALTY UNDER SECTION 271AAA IS NOT LEVIABLE. WHILE HOLDING SO, THE TRIBUNAL HAS FURTHER HELD THAT THE CASE OF THE ASSESSEE FALLS EXACTLY WITHIN THE PURVIEW OF SUB SECTION 2 OF SECTION 271AAA. ACCORDINGLY, THE PENALTY IS NOT LEVIABLE. 9.6 IN THE PRESENT C ASE, THE FACTS ARE IDENTICAL AS THE ASSESSEE HAS DISCLOSED THE AMOUNT OF RS. 2.21 CRORE DURING THE COURSE OF SEARCH AND HAS PAID TAX THEREON, FILED RETURN SHOWING THE SAME INCOME AS ITA NO .381 /20 1 2 10 BUSINESS INCOME AND THE SAME HAS ACCEPTED BY THE AO UNDER THE H E AD BUSINESS INCOME. THEREFORE, IN OUR VIEW, PENALTY ON THIS AMOUNT IS NOT LEVIABLE. 9 . 7 IN CASE OF CIT VS. MARGARETS HOPE TEA CO. LTD., REPORTED IN 201 ITR 747(CAL) , THE HON BLE CALCUTTA HIGH COURT HAS HELD THAT CASH CREDITS FOUND DURING THE COURSE OF SEARCH WERE A SSESSABLE UNDER THE HEAD BUSINESS INCOME. 9.8 IN THE PRESENT CASE ALSO, THE CASH OF RS. 6 7 LAKHS WAS OFFERED FOR TAXATION. THE ENTIRE AMOUNT HAS BEEN ASSESSED UNDER THE HEAD BUSINESS INCOME. IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE AND IN VIEW OF VARIOUS CASE LAWS DISCUSSED ABOVE, WE ARE OF THE VIEW THAT THE PENALTY UNDER SECTION 271AAA IS NOT LEVIABLE ON THE FACTS OF THE PRESENT CASE AS THE ASSESSEES CASE FALLS UNDER THE SUB - CLAUSE 2 OF SECTION 271 AAA OF THE ACT. ACCORDINGLY, WE CANCEL THE L EVY OF PENALTY. 10 . IN THE RESULT , APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE E - COURT ON THIS 2 0 TH DAY OF M AR , 201 3 . - 201 3 SD/ - SD/ - ( ) ( RAJENDRA ) ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 2 0 / 0 3 / 201 3 . /PKM , PS ITA NO .381 /20 1 2 11 COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR . 4. / CIT 5. / DR, ITAT, MUMBAI / N AGPUR . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI
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