ACIT, CHENNAI V. R.Gomathi, CHENNAI

ITA 649/CHNY/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8671 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 06-04-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 11-04-2013
• Court: TRIBUNAL
• Department Lawyers: SAHADEVAN
• Assessee Lawyers: S SRIDHAR
• Keywords: Unexplained investment; Gift; Charitable institution; Revised return
• Section: 69; 132; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . . . , . !' , # $ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NOS.1617,649 & 1078/MDS/2013 / ASSESSMENT YEARS : 2003-04 , 2006-07 & 2008-09 THE ASSTT. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE II(1) CHENNAI VS. SMT. GOMATHI RADHAKRISHNAN NO.931, 11 TH SECTOR, 69 TH STREET K.K. NAGAR, CHENNAI 600 078 [PAN AAGPG 0992H ] ( &' / APPELLANT) ( ()&' /RESPONDENT) ./ I.T.A.NOS.682 & 683/MDS/2013 / ASSESSMENT YEARS : 2007-08 & 2008-09 SMT. R. GOMATHI NO.931, 11 TH SECTOR, 69 TH STREET K.K. NAGAR CHENNAI 600 078 VS. THE ASSTT. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE II(1)/I(1) CHENNAI ( &' / APPELLANT) ( ()&' /RESPONDENT) DEPARTMENT BY : SHRI SAHADEVAN, JCIT ASSESSEE BY : SHRI S. SRIDHAR, ADVOCATE / DATE OF HEARING : 07 - 0 6 - 2016 / DATE OF PRONOUNCEMENT : 29 - 0 7 - 2016 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER ALL THE APPEALS OF THE REVENUE AND THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE COMMI SSIONER OF INCOME- ITA NO.1617/13 ETC. :- 2 -: TAX (APPEALS), CHENNAI, WITH REGARD TO LEVY OF PENA LTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. SINCE COMMON ISSUE ARI SES FOR CONSIDERATION IN ALL THE APPEALS, WE HEARD THEM TOG ETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. FOR THE ASSESSMENT YEAR 2003-04 IN I.T.A.NO.1617/ MDS/2013, THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(C) OF THE ACT. HOWEVER, THE CIT(A) DELETED THE PENALTY LEVIE D BY THE ASSESSING OFFICER. THEREFORE, THE REVENUE FILED THE APPEAL B EFORE THIS TRIBUNAL. 3. SHRI SAHADEVAN, LD. DEPARTMENTAL REPRESENTATIVE SUB MITTED THAT THERE WAS SEARCH IN THE CASE OF SHRI A.N. RADH AKRISHNAN ON 29.9.2008. ON THE BASIS OF THE MATERIAL FOUND DURI NG THE COURSE OF SEARCH OPERATION, NOTICE WAS ISSUED TO THE ASSESSE E U/S 153C OF THE ACT. THE ASSESSEE FILED THE RETURN OF INCOME ON 1 9.10.2020 DECLARING THE TAXABLE INCOME OF ` 4,03,911/-. THE ASSESSEE HAS ALSO OFFERED AN ADDITIONAL SUM OF ` 9,59,433/- DURING THE COURSE OF ASSESSMENT PROCEEDINGS. ACCORDING TO THE LD. DR, SINCE THE A SSESSEE HAS NOT DECLARED THE ABOVE SUM OF ` 9,59,433/- IN THE RETURN OF INCOME, THE ASSESSEE HAS CONCEALED THE INCOME, THEREFORE, THE A SSESSING OFFICER HAS RIGHTLY LEVIED PENALTY U/S 271(1)(C) OF THE A CT. ITA NO.1617/13 ETC. :- 3 -: 4. ON THE CONTRARY, SHRI S.SRIDHAR, LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT, IN FACT, ` 5,59,433/- WAS THE LEASE ADVANCE RECEIVED BY THE ASSESSEES DAUGHTER, PREMALATHA AND GIFT RE CEIVED FROM THE ASSESSEES HUSBAND TO THE EXTENT OF ` 4 LAKHS. EVEN THOUGH THE ADVANCE WAS RECEIVED BY THE ASSESSEES DAUGHTER AND GIFT WAS FROM ASSESSEES HUSBAND, THE SAME WAS OFFERED FOR TAXATI ON. ACCORDING TO THE LD. COUNSEL, THE ADVANCE LEASE AMOUNT CANNOT BE CONSTRUED AS INCOME OF THE ASSESSEE DURING THE YEAR UNDER CONSI DERATION. MOREOVER, THE GIFT RECEIVED FROM HER HUSBAND HAS TO BE TAXED IN THE HANDS OF THE ASSESSEES HUSBAND. THEREFORE, THERE CANNOT BE ANY LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. HENCE, THE C IT(A) HAS RIGHTLY DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER . REFERRING TO THE ORDER OF THE CIT(A), THE LD. COUNSEL SUBMITTED THAT THE INCOME OFFERED BY THE ASSESSEE WAS ACCEPTED BY THE ASSESSING OFFI CER WITHOUT ANY FURTHER ADDITION. MERELY BECAUSE CERTAIN INFERENCE HAS BEEN MADE IN THE ASSESSMENT PROCEEDINGS, THERE CANNOT BE ANY REA SON TO LEVY PENALTY AUTOMATICALLY. REFERRING TO SEC. 271(1)(C ) OF THE ACT, THE LD. COUNSEL SUBMITTED THAT UNLESS THERE IS A CONCEALMEN T OF INCOME, THERE CANNOT BE ANY LEVY OF PENALTY U/S 271(1)(C) OF TH E ACT. IN THE PRESENT CASE, THERE WAS NO CONCEALMENT OF INCOME, T HEREFORE, THE CIT(A) HAS RIGHTLY DELETED THE PENALTY LEVIED BY TH E ASSESSING OFFICER. ITA NO.1617/13 ETC. :- 4 -: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMI TTEDLY, THERE WAS A SEARCH OPERATION IN THE CASE OF SHRI A.N. RADHAKRIS HNAN ON 29.9.2008. ON THE BASIS OF THE INCRIMINATING MATERIAL FOUND DU RING THE COURSE OF SEARCH OPERATION, THE ASSESSING OFFICER ISSUED NOTI CE U/S 153C OF THE ACT. EVEN THOUGH THE ASSESSEE DECLARED TAXABLE INCOME OF ` 4,03,911/-, THE ASSESSEE HAS ALSO OFFERED A SUM OF ` 9,59,433/- IN THE COURSE OF ASSESSMENT PROCEEDINGS BY WAY OF LETTERS DATED 24.12.2010 AND 28.12.2010. THE ASSESSING OFFICER HAS IN FACT ACCEPTED THE INCOME OFFERED BY THE ASSESSEE AND THE ASSESSMENT WAS COMPLETED. THE ASSESSEE NOW CLAIMS BEFORE THIS TRIBUNAL THAT WHEN THE ASSESSEE HAS VOLUNTARILY OFFERED THE INCOME, THE SAME CANNOT BE CONSTRUED AS CONCEALMENT OF INCOME. THE LD. COUNSEL CLAIMS THAT THE ADVANCE RECEIVED TOWARDS LEASE RENTAL CANNOT BE CONSTRUED A S UNDISCLOSED INCOME. MOREOVER, THE GIFT OF ` 4 LAKHS WAS RECEIVED FROM THE ASSESSEES HUSBAND, THEREFORE, IT CANNOT BE TREATED AS INCOME OF THE ASSESSEE. AS RIGHTLY SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, EVERY ADDITION MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS CANNOT AUTOMATICALLY RESULT IN LEVY OF PENALTY. EVEN THOUGH THERE WAS AN ADDITION IN THE ASSESSMENT PROC EEDINGS, WHILE LEVYING PENALTY, THE ASSESSING OFFICER HAS TO RE-AP PRECIATE THE MATERIAL AVAILABLE ON RECORD. WHEN THE ASSESSEE CLAIMS THA T WHAT WAS ITA NO.1617/13 ETC. :- 5 -: RECEIVED BY HER DAUGHTER PREMALATHA IS LEASE ADVANC E, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE LEASE ADVANCE CA NNOT BE CONSTRUED AS INCOME OF THE ASSESSEE. MOREOVER, IF AT ALL AN Y ADDITION HAS TO BE MADE, IT HAS TO BE MADE IN THE HANDS OF ASSESSEES DAUGHTER PREMALATHA AND DEFINITELY PENALTY CANNOT BE LEVIED IN THE HANDS OF THE ASSESSEE. MOREOVER, IN RESPECT OF THE GIFT RECEIVE D FROM THE ASSESSEES HUSBAND, PENALTY, IF ANY, HAS TO BE LEVI ED ONLY IN THE HANDS OF THE ASSESSEES HUSBAND. 6. FURTHERMORE, ASSESSMENT PROCEEDINGS WAS COMPLETED U/S 153C OF THE ACT CONSEQUENT TO THE SEARCH CONDUCTED U/S 132 OF THE ACT ON 29.9.2008. THE PARLIAMENT WITH EFFECT FROM 1.4.2007 ENACTED SEC. 271AAA FOR LEVY OF PENALTY IN CASE WHERE SEARC H WAS INITIATED ON OR AFTER 1.6.2007 BUT BEFORE 1.7.2012. SUB-SECTION (3) OF SEC. 271AAA OF THE ACT IN CATEGORICAL TERMS DECLARES THAT NO PE NALTY CAN BE LEVIED U/S 271(1)(C) OF THE ACT IN RESPECT OF THE UNDISCL OSED INCOME REFERRED TO IN SUB-SECTION(1) OF SEC. 271AAA OF THE ACT. IN THE CASE BEFORE US, THE PENALTY LEVIED BY THE ASSESSING OFFICER SQUAREL Y FALLS U/S 271AAA OF THE ACT. THEREFORE, THERE CANNOT BE ANY LEVY O F PENALTY U/S 271(1)(C) OF THE ACT IN VIEW OF SECTION 271AAA(3) O F THE ACT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPIN ION THAT THE CIT(A) ITA NO.1617/13 ETC. :- 6 -: HAS RIGHTLY DELETED THE PENALTY LEVIED BY THE ASSES SING OFFICER. ACCORDINGLY, THE SAME IS CONFIRMED. 7. NOW COMING TO ASSESSMENT YEAR 2006-07 IN I.T.A.NO. 649/MDS/2013, SHRI SAHADEVAN, LD. DR SUBMITTED THAT CONSEQUENT TO THE SEARCH OPERATION IN THE CASE OF SHRI A.N. RADHA KRISHNAN, ON 29.9.2008, THE ASSESSING OFFICER ISSUED NOTICE U/S 153C OF THE ACT TO THE ASSESSEE. THE ASSESSEE DECLARED AN INCOME OF ` 8,49,855/-. MOREOVER, BY WAY OF LETTERS DATED 24.12.2010 AND 28 .12.2010, THE ASSESSEE HAS ALSO OFFERED ADDITIONAL SUM OF ` 1,05,88,900/-. SINCE ` 1,05,88,900/- WAS NOT OFFERED IN THE ORIGINAL RETUR N, ACCORDING TO THE LD. DR, THERE WAS A CONCEALMENT OF INCOME,. THEREF ORE, THE CIT(A) IS NOT JUSTIFIED IN DELETING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. 8. ON THE CONTRARY, SHRI S. SRIDHAR, LD. COUNSEL FOR T HE ASSESSEE SUBMITTED THAT EVEN THOUGH THE ASSESSEE ORIGINALLY DECLARED A SUM OF ` 8,49,855/-, BY WAY OF LETTERS DATED 24.12.2010 AND 28.12.2010 OFFERED ADDITIONAL AMOUNT OF ` 1,05,88,900/- VOLUNTARILY. ACCORDING TO THE LD. COUNSEL, A SUM OF ` 76,65,000/- WAS RECEIVED BY SRI VETRIVEL EDUCATIONAL & CHARITABLE TRUST AS VOLUNTARY CONTRIB UTION. THIS WAS TAKEN AS INCOME IN THE HANDS OF THE ASSESSEE. MOR EOVER, THE VOLUNTARY CONTRIBUTION RECEIVED BY THE CHARITABLE TRUST WAS TELESCOPED ITA NO.1617/13 ETC. :- 7 -: AGAINST THE LEASE ADVANCE RECEIVED TO THE EXTENT OF ` 1,05,88,900/-. ACCORDING TO THE LD. COUNSEL, THE ASSESSING OFFICER ACCEPTED THE INCOME OFFERED BY THE ASSESSEE WITHOUT ANY FURTHER ADDITION, THEREFORE, THE CIT(A) HAS RIGHTLY DELETED THE PENAL TY LEVIED BY THE ASSESSING OFFICER. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMITTED BY THE LD. DR, THE ASSESSEE HAS DECLARED ` 8,49,855/- IN THE ORIGINAL RETURN. BY WAY OF LETTERS DATED 24.12.2010 AD 28.1 2.2010, THE ASSESSEE OFFERED ADDITIONAL SUM OF ` 1,05,88,900/- WHICH WAS ACCEPTED BY THE ASSESSING OFFICER WITHOUT ANY FURTH ER ADDITION. THE ASSESSEE, IN FACT, TELESCOPED THE LEASE RENTAL RECE IVED BY THE ASSESSEE AGAINST THE VOLUNTARY CONTRIBUTION RECEIVED BY SRI VETRIVEL EDUCATIONAL & CHARITABLE TRUST. WHEN THE ASSESSEE CLAIMS THAT VOLUNTARY CONTRIBUTION WAS RECEIVED BY SRI VETRIVEL EDUCATION AL & CHARITABLE TRUST, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE WAS NO JUSTIFICATION FOR LEVY OF PENALTY U/S 271(1)(C) O F THE ACT. THE ASSESSING OFFICER HAS TO REAPPRECIATE THE MATERIAL AVAILABLE ON RECORD AND FIND OUT WHETHER THE INCOME ACTUALLY RELATES TO THE ASSESSEE. MOREOVER, BY SEC. 271AAA OF THE ACT, THE PARLIAMENT ENACTED A SEPARATE PROVISION FOR LEVY OF PENALTY. SUB-SECTION (3) OF SEC. 271AAA ITA NO.1617/13 ETC. :- 8 -: OF THE ACT IN CATEGORICAL TERMS DECLARES THAT NO PE NALTY CAN BE LEVIED U/S 271(1)(C) OF THE ACT IN RESPECT OF THE INCOME WHICH FALLS IN SUB- SECTION(1) OF SEC. 271AAA OF THE ACT. IN THE CASE BEFORE US, ADMITTEDLY, THE SEARCH WAS CONDUCTED ON 29.9.2008, THEREFORE, PENALTY, IF ANY, HAS TO BE LEVIED ONLY U/S 271AAA OF THE ACT AND DEFINITELY NOT U/S 271(1)(C) OF THE ACT. THEREFO RE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) HAS RIGHTLY DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 10. NOW COMING TO ASSESSMENT YEAR 2007-08, THE ASSESSE E FILED THE APPEAL AGAINST THE ORDER OF THE CIT(A) CONFIRMI NG PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. 11. SHRI S. SRIDHAR, LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THERE WAS A SEARCH IN THE CASE OF SHRI A.N. RADHAKR ISHNAN, HUSBAND OF THE ASSESSEE, ON 29.9.2008. CONSEQUENTLY, NOTICE U/S 153C OF THE ACT WAS ISSUED. THE ASSESSEE HAS DECLARED TAXABLE INCOME OF ` 8,01,979/-. IN FACT, THE ASSESSMENT PROCEEDINGS WA S COMPLETED U/S 153C OF THE ACT ON 31.12.2010. DURING THE COURSE O F ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS ALSO OFFERED A SUM O F ` 40,50,000/- BEING THE ADVANCE LEASE RENTAL RECEIVED FROM SMT. U . ANITHA. ACCORDING TO THE LD. COUNSEL, THE ADVANCE RECEIVED BY THE ASSESSEE CANNOT BE TAKEN AS INCOME OF THE ASSESSEE DURING T HE YEAR UNDER ITA NO.1617/13 ETC. :- 9 -: CONSIDERATION. EVEN THOUGH THERE WAS AN ADDITION T HAT CANNOT AUTOMATICALLY RESULT IN LEVY OF PENALTY U/S 271( 1)(C) OF THE ACT. REFERRING TO THE ORDER OF THE CIT(A), THE LD. COUNS EL SUBMITTED THAT THE CIT(A) CONFIRMED THE PENALTY UN 271(1)(C) OF THE A CT MAINLY BASED UPON THE STATEMENT RECORDED U/S 131(1) OF THE ACT. ACCORDING TO THE LD. COUNSEL, PENALTY CANNOT BE LEVIED ON THE BASIS OF THE STATEMENT RECORDED U/S 131(1) OF THE ACT. 12. ON THE CONTRARY, SHRI SAHADEVAN, LD. DR SUBMITTED T HAT THE ASSESSEE HAS PAID AN ADVANCE OF ` 40,75,000/- FOR PURCHASE OF A FLAT AT SALIGRAMAM, CHENNAI. HOWEVER, THE SOURCE OF SUCH P AYMENT WAS NOT DISCLOSED TO THE REVENUE. ON A QUERY FROM THE BENCH , THE LD. DR CLARIFIED THAT EVEN THOUGH THE ASSESSING OFFICER FO UND THAT THE ASSESSEE HAS RECEIVED A SUM OF ` 40,50,000/- TOWARDS ADVANCE FROM SMT. U. ANITHA, IN FACT, IT WAS AN ADVANCE PAID BY THE ASSESSEE FOR PURCHASE OF FLAT FROM THE SAID SMT. U. ANITHA. THI S FACT WAS ADMITTED BY THE ASSESSEE IN A STATEMENT RECORDED U/S 131(1 ) OF THE ACT. SINCE THE PAYMENT OF ADVANCE WAS NOT DISCLOSED IN THE RET URN OF INCOME, THE ASSESSEE OFFERED THE SAME FOR TAXATION. THEREFORE, THE CIT(A) HAS RIGHTLY CONFIRMED THE PENALTY LEVIED BY THE ASSESSI NG OFFICER. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IN T HE PENALTY ORDER, THE ITA NO.1617/13 ETC. :- 10 -: ASSESSING OFFICER CLAIMS THAT THE ASSESSEE HAS REC EIVED A SUM OF ` 40,50,000/- FROM SMT. U.ANITHA FOR A FLAT AT SALIGR AMAM, CHENNAI. HOWEVER, THE CIT(A) FUND THAT THE ASSESSEE HAS PAI D ADVANCE OF ` 40,75,000/- FOR PURCHASE OF FLAT AT SALIGRAMAM. TH E FACT REMAINS THAT THE ASSESSEE HAS NOT DISCLOSED ` 40,75,000/- IN THE RETURN OF INCOME. HOWEVER, THE SAME WAS VOLUNTARILY OFFERED DURING TH E COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER ACCE PTED THE SAME. IF THE ASSESSEE HAS RECEIVED ADVANCE FOR SALE OF THE FLAT, THE SAME HAS TO BE TAKEN INTO CONSIDERATION AT THE TIME OF COMPU TING CAPITAL GAINS WHEN THE SALE DEED WAS EXECUTED. IF THE ASSESSEE HAS PAID ` 40,50,000/- FOR PURCHASE OF THE FLAT, THE SAME HAS TO BE TREATED AS INCOME OF THE ASSESSEE DURING THE YEAR IN WHICH TH E ADVANCE WAS PAID. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT MERE ADDITION IN THE ASSESSMENT ORDER CANNOT BE REASON FOR LEVY OF P ENALTY U/S 271(1)(C) OF THE ACT. THE ASSESSING OFFICER HAS T O REAPPRECIATE THE MATERIAL AVAILABLE ON RECORD AND FIND OUT WHETHER T HERE WAS ANY CONCEALMENT OF INCOME. IN THE CASE BEFORE US, BOTH THE LOWER AUTHORITIES HAVE NOT REAPPRECIATED THE MATERIAL AVA ILABLE ON RECORD. MERELY BECAUSE THE ASSESSEE OFFERED THE AMOUNT AS INCOME, THEY HAVE LEVIED/CONFIRMED PENALTY U/S 271(1)(C) OF TH E ACT. THE FACT REMAINS THAT THE SEARCH WAS CONDUCTED IN THE CASE O F SHRI A.N. RADHAKRISHNAN ON 29.9.2008. THEREFORE, PENALTY, IF ANY, HAS TO BE ITA NO.1617/13 ETC. :- 11 -: LEVIED U/S 271AAA OF THE ACT AND DEFINITELY NOT U /S 271(1)(C) OF THE ACT. SUB-SECTION(3) OF SEC. 271AAA OF THE ACT IN C ATEGORICAL TERMS DECLARES THAT NO PENALTY CAN BE LEVIED U/S 271(1) (C) OF THE ACT WHEN THE INCOME FALLS U/S 271AAA(1) OF THE ACT. IN THE CASE BEFORE US, IT IS NOT IN DISPUTE THAT THE INCOME FALLS U/S 271AAA(1) OF THE ACT. THEREFORE, NO PENALTY CAN BE LEVIED U/S 271(1)(C) OF THE ACT. IN VIEW OF THE ABOVE, WE ARE UNABLE TO UPHOLD THE ORDERS OF THE AUTHORITIES BELOW. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHO RITIES ARE SET ASIE AND THE PENALTY LEVIED BY THE ASSESSING OFFICER U/ S 271(1)(C) OF THE ACT IS DELETED. 14. NOW COMING TO ASSESSMENT YEAR 2008-09, BOTH THE AS SESSEE AND REVENUE FILED APPEALS. 15. SHRI SAHADEVAN, LD. DR SUBMITTED THAT THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(C) OF THE ACT IN RESPE CT OF THE INCOME OFFERED BY THE ASSESSEE. ACCORDING TO THE LD. DR, THE ASSESSEE HAS OFFERED A SUM OF ` 86 LAKHS BY WAY OF LETTER DATED 24.12.2010 AND 28.12.2010 CLAIMED THAT IT WAS LEASE ADVANCE RECEI VED BY THE ASSESSEES DAUGHTER PREMALATHA. THE ASSESSEE HAS ALSO OFFERED ANOTHER SUM OF ` 80 LAKHS TOWARDS UNEXPLAINED INVESTMENT IN THALAKANCHERY PROPERTY. ON APPEAL BY THE ASSESSEE , THE CIT(A) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFIC ER IN RESPECT OF ITA NO.1617/13 ETC. :- 12 -: INVESTMENT IN THALAKANCHERY PROPERTY. APART FROM T HAT, THE ASSESSEE HAS ALSO OFFERED ` 14 LAKHS TOWARDS INVESTMENT IN KK NAGAR PROPERTY. THIS WAS ALSO CONFIRMED BY THE CIT(A). HOWEVER, IN RESPECT OF ` 86 LAKHS OFFERED BY THE ASSESSEE AS UNDISCLOSED INCO ME, THE CIT(A) DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER . ACCORDING TO THE LD. DR, THE CIT(A) OUGHT NOT TO HAVE DELETED THE PE NALTY WITH RESPECT TO THE INVESTMENT IN KK NAGAR PROPERTY AND THALAKAN CHERY PROPERTY. THESE ARE ALL INVESTMENT MADE BY THE ASSESSEE WHIC H WAS NOT DISCLOSED IN THE RETURN OF INCOME, THEREFORE, THERE WAS A DEFINITE CONCEALMENT OF INCOME TO THAT EXTENT. HENCE, THE C IT(A) OUGHT TO HAVE CONFIRMED THE ORDER OF THE ASSESSING OFFICER I N ITS ENTIRETY. 16. ON THE CONTRARY, SHRI S. SRIDHAR, LD. COUNSEL FOR T HE ASSESSEE SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROC EEDINGS, THE ASSESSEE BY LETTERS DATED 24.12.2010 AND 28.12.20 10 OFFERED A SUM OF ` 86 LAKHS AS UNDISCLOSED INCOME. IN FACT, THIS AMO UNT WAS RECEIVED BY ASSESSEES DAUGHTER PREMALATHA TOWARDS LEASE AD VANCE. THEREFORE, THE ASSESSEE COULD NOT HAVE OFFERED THE SAME IN THE ASSESSMENT PROCEEDINGS. HOWEVER, IN ORDER TO AVOID LITIGATION, THE ASSESSEE HAS OFFERED THE ASSESSEE AS INCOME AND PA ID TAXES. MOREVER, ` 6 LAKHS WAS IN FACT RECEIVED BY HER DAUGHTER AS GI FT. THE ASSESSEE HAS ALSO OFFERED A SUM OF ` 80 LAKHS AS UNDISCLOSED INCOME IN ITA NO.1617/13 ETC. :- 13 -: THALAKACHERY PROPERTY. THE ASSESSEE IN FACT FILED A REVISED RETURN ON 31.10.2010. THE DISCLOSURE MADE BY THE ASSESSEE W AS ACCEPTED BY THE ASSESSING OFFICER AND THE SAME WAS BROUGHT TO T AXATION. ACCORDING TO THE LD. COUNSEL, THE ENTIRE ADDITION W AS MADE BY THE ASSESSING OFFICER ONLY ON THE BASIS OF THE DISCLOSU RE MADE BY THE ASSESSEE VOLUNTARILY, THEREFORE, THERE WAS NO CONCE ALMENT OF INCOME. ON APPEAL BY THE ASSESSEE, THE CIT(A), HOWEVER, FO UND THAT THE PENALTY WAS RIGHTLY LEVIED IN RESPECT OF TWO ADDITI ONS I.E INVESTMENTS IN KK NAGAR PROPERTY TO THE EXTENT OF ` 14 LAKHS AND THALAKANCHERY PROPERTY TO THE EXTENT OF ` 80 LAKHS. HOWEVER, THE CIT(A) DELETED PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1 )(C) OF THE ACT IN RESPECT OF THE INCOME OFFERED BY THE ASSESSEE TO T HE EXTENT OF ` 86 LAKHS. THEREFORE, THE ASSESSEE FILED THE APPEAL I N RESPECT OF PENALTY CONFIRMED BY THE CIT(A) TO THE EXTENT OF ` 14 LAKHS AND ` 80 LAKHS BEING THE INVESTMENTS MADE IN KK NAGAR PROPERTY AND THALAKANCHERY PROPERTY. 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSMENT WAS COMPLETED U/S 153C OF THE ACT CONSEQUENT TO THE SE ARCH CONDUCED IN THE CASE OF SHRI A.N. RADHAKRISHNAN ON 29.9.2008. INITIALLY, THE ASSESSEE FILED THE RETURN DECLARING INCOME ` 8,93,951/-. THE ASSESSEE ITA NO.1617/13 ETC. :- 14 -: HAS ALSO FILED A REVISED RETURN DECLARING ADDITIONA L INCOME OF ` 86 LAKHS SAID TO BE RECEIVED FROM LEASE ADVANCE BY HER DAUGH TER AND ALSO INVESTMENT MADE IN KK NAGAR AND THALAKANCHERY PROPE RTY TO THE EXTENT OF ` 94 LAKHS. THE DISCLOSURE MADE BY THE ASSESSEE WA S IN FACT ACCEPTED BY THE ASSESSING OFFICER. SINCE THE INCOM E WAS NOT DISCLOSED IN THE RETURN, THE ASSESSING OFFICER FOUND THAT THE RE WAS CONCEALMENT OF INCOME. HOWEVER, ON APPEAL BY THE ASSESSEE, TH E CIT(A) ACCEPTED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF INCOME DISCLOSED WITH REGARD TO LEASE ADVANCE OF ` 86 LAKHS AND DELETED THE PENALTY. HOWEVER, THE CIT(A) CONFIRMED THE PENALTY IN RESPEC T OF THE INVESTMENT MADE IN KK NAGAR PROPERTY AND THALAKANCH ERY PROPERTY. IT IS NOT IN DISPUTE THAT THE PENALTY WAS LEVIED U /S 271(1)(C) OF THE ACT CONSEQUENT TO THE SEARCH OPERATION CONDUCED ON 29.9.2008. SEC. 271AAA OF THE ACT WAS ENACTED BY THE PARLIAMENT WIT H EFFECT FROM 1.4.2007 PROHIBITING THE ASSESSING OFFICER FROM LEV Y OF PENALTY U/S 271(1)(C) OF THE ACT IN RESPECT OF THE SEARCH OPERA TION CONDUCED ON OR AFTER 1.4.2007. IN THE CASE BEFORE US, ADMITTEDLY, THE SEARCH WAS CONDUCTED N 29.9.2008, THEREFORE, IT SQUARELY FAL LS U/S 271AAA OF THE ACT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERE D OPINION THAT NO PENALTY CAN BE LEVIED U/S 271(1)(C) OF THE ACT IN VIEW OF SUB- SECTION(3) OF SEC. 271AAA OF THE ACT. THEREFORE, T HIS TRIBUNAL IS UNABLE TO UPHOLD THE ORDER OF THE CIT(A). THE CIT( A) OUGHT TO HAVE ITA NO.1617/13 ETC. :- 15 -: DELETED THE ENTIRE PENALTY LEVIED BY THE ASSESSING OFFICER INSTEAD OF PARTIALLY CONFIRMING THE SAME. IN VIEW OF THE ABOV E, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE PENALTY LEV IED BY THE ASSESSING OFFICER IS DELETED. 18. IN THE RESULT, ALL THE APPEALS OF THE REVENUE ARE DISMISSED WHEREAS THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2016, AT CHENNAI. SD/- SD/- ( . !' ) (A. MOHAN ALANKAMONY) # / ACCOUNTANT MEMBER ( . . . ) ) (N.R.S. GANESAN) / JUDICIAL MEMBER / CHENNAI ! / DATED: 29 TH JULY, 2016 RD !' # $% &% / COPY TO: 1 . '( / APPELLANT 4. ) / CIT 2. #*'( / RESPONDENT 5. %+, # - / DR 3. ) () / CIT(A) 6. ,/ 0 / GF