DCIT, C.C., Dhanbad V. M/S Jai Jagdamba Cereal Udyog Pvt. Ltd., West Bengal

ITSSA 12/RAN/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6945 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-09-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 04-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: INDRAJIT SINGH
• Assessee Lawyers: R R MITTAL
• Keywords: Search and seizure
• Section: 271(1)(c); 153A; 201; 274; 27; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH E COURT AT KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER IT (SS) A NO. 1 2 / RAN / 201 9 ASSESSMENT YEAR :2014-15 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, 3 RD FLOOR, AAYKAR BHAWAN, L.C. ROAD, DHANBAD-826001 V/S . M/S JAI JAGDAMBA CEREALUDYOG PVT. LTD., VILL. CHALBALPUR, SALANPUR, ASANSOL, WEST BENGAL-713559 [ PAN NO.AABCJ 5161 D ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI INDRAJIT SINGH, CIT-DR /BY RESPONDENT SHRI R.R. MITTAL, FCA /DATE OF HEARING 01-09-2020 /DATE OF PRONOUNCEMENT 01-09-2020 / O R D E R PER BENCH :- THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2014-15 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-3 PATNAS ORDE R DATED 11.10.2018 PASSED IN CASE NO.113/CIT(A)-3/PAT/18-19/ITBA APPEA L NO.1008/2017-18 IMPOSING PENALTY OF 1,12,50,200/-U/S 271(1)(C) THE INCOME TAX ACT, 196 1; IN SHORT THE ACT. 2. THE CIT(A) FIRST DELETING THE SEC. 271(1)(C) PE NALTY OF 1,12,50,200/- IMPOSED BY THE ASSESSING OFFICER VIDE ORDER DATED 2 9.06.2017. HEARD BOTH THE PARTIES. CASE FILE PERUSED. IT(SS)A NO12/RAN/2019 A.Y. 2014-15 DCIT, C.C DHANBAD VS. M/S JAI JAGDAMBA CEREAL U DYOG PVT. LTD. PAGE 2 3. BOTH THE LEARNED REPRESENTATIVES INVITED OUR ATT ENTION TO THE CIT(A)S ORDER DELETING IMPUGNED PENALTY VIDE ITS DETAILED D ISCUSSION:- 3. GROUND NO.1: THIS GROUND RELATE TO THE OBJECTIO N OF THE APPELLANT TO LEVY OF PENALTY OF RS.L,12,OS,200/- U/S.271(L)(C) OF THE AC T. 3.1. FINDINGS OF THE AO : AS STATED EARLIER THE APPELLANT IN RESPONSE TO NOTI CE U/ S.153A FILED RETURN OF LOSS AT RS.1,43,05,649/-. SUBSEQUENTLY THE APPELLAN T REVISED ITS RETURN OF INCOME FROM LOSS OF RS.1 ,43,05,649/ - TO INCOME OF RS.29,62,330/ -. THE AO PASSED ORDER UJS.153A/143(3) ON 27.12.2016 DETERMIN ING TOTAL INCOME AT RS.29,62,330/-. HOWEVER, IN THE ASSESSMENT ORDER TH E AO NOTED THAT THAT THE APPELLANT HAS CONCEALED THE INCOME TO THE TUNE OF R S.1,72,67,982/- ON ACCOUNT LOSS BEING CONVERTED TO POSITIVE INCOME. A CCORDINGLY, THE AO INITIATED PENALTY PROCEEDINGS FOR CONCEALMENT OF IN COME U/S 271(1)(C) ON 29.06.2017 LEVYING A PENALTY OF RS.1,12,05,200 AT T HE RATE OF 200% OF THE TAX SOUGHT TO BE EVADED. 3.2 APPELLANT'S CONTENTION : DURING THE COURSE OF APPELLATE PROCEEDING, THE APPE LLANT HAS FILED SUBMISSION AS UNDER: A) FACTS OF THE CASE A SEARCH WAS CONDUCTED IN THE PREMISES OF APPELLAN T ON 03.09.2014. THE SEARCH TEAM HAS NOT FOUND ANY INCRIMINATING MA TERIAL! DOCUMENTS AGAINST YOUR APPELLANT FOR THE YEAR UNDER CONSIDERA TION . ON 30.11.2014 YOUR APPELLANT HAS SUBMITTED TAX AUD IT REPORT ALONG WITH AUDITED FINANCIAL STATEMENT SHOWING NET PROFIT OF R S. 33,73,373/- ( TAXABLE INCOME RS. 29,62,333/- ) UPLOADED WITH INCOME TAX DEPARTMENT VIDE ACKNOWLEDGEMENT NO. 43244151130111. ON 19.03.2016, THE NEWLY APPOINTED ACCOUNTANT OF A SSESSEE HAS FILED A WRONG RETURN ON THE BASIS OF UNAUDITED, UNSIGNED & INCOMPLETE PROFIT AND LOSS ACCOUNT SHOWING LOSS OF RS. 1,43,05,649/- DUE TO INADVERTENT OR DUE TO WORK PRESSURE OR DUE TO HUMAN ERROR. WE D RAW YOUR KIND ATTENTION TO RELEVANT PAGE OF ITR-6 FILED BY ASSESS EE ON 19.03.2016 SHOWING LOSS OF RS.1,43,05,649 FROM WHICH YOUR HONO UR WILL KINDLY APPRECIATE THAT THE ASSESSEE HAS INFORMED THE DEPAR TMENT THAT THEY HAVE ALREADY FILED TAX AUDIT REPORT ALONG WITH AUDI TED FINANCIAL STATEMENTS UPLOADED ON 30.11.2014. ON 21.11.2016 YOUR PETITIONER HAS FILED REVISED RE TURN ON THE BASIS OF AUDITED PROFIT AND LOSS ACCOUNT SHOWING NET PROFIT OF RS.33,73,373/- ( TAXABLE INCOME OF RS. 29,62,333/- ) BEFORE THE MISTAKE WAS DETECTED BY INCOME TAX DEPARTMENT. ON. 27. 12.2016 THE LD. A.O ACCEPTED THE REVISED R ETURN AND COMPLETED THE ASSESSMENT ON RS. 29,62,330/- . IT(SS)A NO12/RAN/2019 A.Y. 2014-15 DCIT, C.C DHANBAD VS. M/S JAI JAGDAMBA CEREAL U DYOG PVT. LTD. PAGE 3 ON 29.06.2017 THE LD. A.O. HAS IMPOSED A PENALTY O F RS.1,12,05,200/- U/S 271(1) (C) YOUR APPELLANT BEING AGGRIEVED, HENCE THIS APPEAL. OUR SUBMISSION 1. WE DRAW YOUR KIND ATTENTION TO THE DEFINITION OF ' SPECIFIED PREVIOUS YEAR ' AS GIVEN IN SEC. 271AAB WHICH IS AS FOLLOWS:- EXPLANATION - FOR THE PURPOSE OF THIS SECTION ,-- (B) ' SPECIFIED PREVIOUS YEAR ' MEANS THE PREVIOUS YEAR- (I) WHICH HAS ENDED BEFORE THE DATE OF SEARCH, BUT THE DATE OF FURNISHING 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 PREV IOUS YEAR BEFORE THE DATE OF SEARCH; OR, (II) IN WHICH SEARCH WAS CONDUCTED. IN THE INSTANT CASE THE FACTS ARE AS FOLLOWS- (I) SEARCH WAS CONDUCTED ON 03.09.2014. (II) ON THE DATE OF SEARCH THE DATE OF FURNISHING T HE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 FOR AY 14-15 W AS NOT EXPIRED AS IT WAS EXTENDED UP TO 30.11.2014 M TERMS OF CBDT NOTIF ICATION DATED 20.08.2014. (III) FURTHER YOUR APPELLANT HAS NOT FURNISHED THEI R INCOME TAX RETURN FOR THE AY 14-15 UPTO 03.09.2014 I. E ON THE DATE O F SEARCH. (IV) YOUR PETITIONER HAS SUBMITTED THE INCOME TAX R ETURNS FOR THE AY 14-15 ON 19.03.2016. THUS FROM THE ABOVE FACTS, YOUR HONOUR WILL KINDLY APPRECIATE THAT A. Y. 2014- 15 COMES UNDER THE PURVIEW OF DEFINITION OF ' SPECIFIED PREVIOUS YEAR ' AS GIVEN IN EXPLANATION - (B) OF SECTION 271AAB WHICH IS APPLICABLE TO THE COMPANY AND SECTION 271(1)(C) IS NOT APPLICABLE. BU T IGNORING THE ABOVE SECTION THE LD. A. O. HAS IMPOSED PENALTY UNDER SEC TION 271 ( L)(C ) WITHOUT ANY LEGAL SANCTION HENCE THE SAME IS VOID AND ILLEG AL AND DESERVE TO BE QUASHED OFF' 3.3 APPELLATE FINDING AND DECISION : I HAVE GONE THROUGH THE PENALTY ORDER, ASSESSMENT O RDER AND SUBMISSION OF THE APPELLANT. THE UNDISPUTED FACT IS THAT A SEARCH & SEIZURE ACTION U/S 132(1) WAS CARRIED OUT AT THE BUSINESS AND RESIDENTIAL PRE MISES OF JAGDMBA GROUP OF CASES ON 03.09.2014. THE APPELLANT IS ONE OF THE ME MBERS OF THE SAID GROUP. THE APPELLANT SUBMITTED THAT IN A CASE WHERE A SEAR CH HAS BEEN INITIATED UNDER SECTION 132(1) ON OR AFTER THE 1ST DAY OF JUL Y, 2012 THE PENALTY IF ANY THAT NEED TO BE LEVIED IS U/S.271AAB AND NOT U/S.27 1(1)(C) AS ITS CASE FALLS UNDER THE SPECIFIED PREVIOUS YEAR. ACCORDINGLY, THE APPELLANT URGED TO QUASH THE ORDER PASSED UJS.271(1)(C). IN THIS REGARD, IT WOULD BE OF PARTICULAR RELEVANCE TO LOOK INTO THE PROVISIONS OF SECTION 27 1AAB OF THE ACT. IT(SS)A NO12/RAN/2019 A.Y. 2014-15 DCIT, C.C DHANBAD VS. M/S JAI JAGDAMBA CEREAL U DYOG PVT. LTD. PAGE 4 ' 271AAB . PENALTY WHERE SEARCH HAS BEEN INITIATED.-(L) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHERE SEARCH HA S BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JULY, 2012, THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM,- (A) A SUM COMPUTED AT THE RATE OF TEN PER CENT OF T HE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR, IF SUCH ASSE SSEE- (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UND ER SUB-SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME A ND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLO SED INCOME WAS DERIVED; AND (III) ON OR BEFORE THE SPECIFIED DATE- ( A ) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME; AND ( B ) FURNISHES THE RETURN OF INCOME FOR THE SPECIFIED PREVIOUS YEAR DECLARING SUCH UNDISCLOSED INCOME THEREIN; (B) A SUM COMPUTED AT THE RATE OF TWENTY PER CENT O F THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR, IF SUCH ASSE SSEE- (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UND ER SUB-SECTION (4) OF SECTION 132, DOES NOT ADMIT THE UNDISCLOSED INCOME; AND (II) ON OR BEFORE THE SPECIFIED DATE- ( A ) DECLARES SUCH INCOME IN THE RETURN OF INCOME FURN ISHED FOR THE SPECIFIED PREVIOUS YEAR; AND ( B ) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME; (C) A SUM WHICH SHALL NOT BE LESS THAN THIRTY PER C ENT BUT WHICH SHALL NOT EXCEED NINETY PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR, IF IT IS NOT COVERED BY THE PROVISIO NS OF CLAUSES (A) AND (B) . (2) NO PENALTY UNDER THE PROVISIONS OF CLAUSE (C) O F SUB-SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN R ESPECT OF THE UNDISCLOSED INCOME REFERRED TO IN SUB-SECTION (1). (3) THE PROVISIONS OF SECTIONS 274 AND 275 SHALL, A S FAR AS MAY BE, APPLY IN RELATION TO THE PENALTY REFERRED TO IN THI S SECTION. IT(SS)A NO12/RAN/2019 A.Y. 2014-15 DCIT, C.C DHANBAD VS. M/S JAI JAGDAMBA CEREAL U DYOG PVT. LTD. PAGE 5 EXPLANATION .-FOR THE PURPOSES OF THIS SECTION,- (A) ' SPECIFIED DATE ' MEANS THE DUE DATE OF FURNISHING OF RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 OR THE DATE ON WHICH THE PERIOD SPECIFIED IN THE NOTICE ISSUED UNDER SECTION 153A FOR FURNISHING OF RETURN OF INCOME EXPIRES, AS THE CASE MAY BE; (B) ' SPECIFIED PREVIOUS YEAR ' MEANS THE PREVIOUS YEAR- (I) WHICH HAS ENDED BEFORE THE DATE OF SEARCH, BUT THE DATE OF FURNISHING THE RETURN OF INCOME UNDER SUB-SECTION ( 1) OF SECTION 139 FOR SUCH YEAR HAS NOT EXPIRED BEFORE THE DATE O F SEARCH AND THE ASSESSEE HAS NOT FURNISHED THE RETURN OF INCOME FOR THE PREVIOUS YEAR BEFORE THE DATE OF SEARCH; OR (II) IN WHICH SEARCH WAS CONDUCTED; (C) ' UNDISCLOSED INCOME ' MEANS- (I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRE SENTED, 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 TRANSACTIONS 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 T HE NORMAL COURSE RELATING TO SUCH PREVIOUS YEAR; OR ( B ) OTHERWISE NOT BEEN DISCLOSED TO THE CHIEF COMMISS IONER OR COMMISSIONER BEFORE THE DATE OF SEARCH; OR (II) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPR ESENTED, EITHER WHOLLY OR PARTLY, BY ANY ENTRY IN RESPECT OF AN EXP ENSE RECORDED IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAIN ED IN THE NORMAL COURSE RELATING TO THE SPECIFIED PREVIOUS YE AR WHICH IS FOUND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED.' FROM THE PLAIN READING OF SEC.271AAB, IT IS CLEAR T HAT WHERE A SEARCH U/S.132(1) WAS INITIATED ON OR AFTER THE 1ST DAY OF JULY, 2012 PENALTY IS LEVIABLE ON THE UNDISCLOSED INCOME AT THE RATE AND CONDITIONS SPECIFIED U/S.271AAB(1) FOR THE SPECIFIED PREVIOUS YEAR. FURT HER, THE SECTION ALSO DEFINES THE TERM ' UNDISCLOSED INCOME ' AND ' SPECIFIED PREVIOUS YEAR '. MOREOVER, THE SECTION STARTS WITH NON ABSTANTE CLAU SE AND EXCLUDES THE APPLICABILITY OF SECTION 271 (L)(C), IF THE UNDISCL OSED INCOME PERTAIN TO THE SPECIFIED PREVIOUS YEAR. VIEWED FROM THE ABOVE, THE FACTS OF THE APPELLANT'S CASE ARE SQUARELY COVERED BY SECTION 271AAB. IN THE APPELLANT'S CASE A SEARCH WAS CONDUCTED ON 03.09.2014 I.E ON OR AFTER 01/07/2012. ON THE DATE OF SEARCH THE DUE DATE TO FURNISH THE RETURN FOR A. Y.2014-1S HAS NOT EXPIRED IT(SS)A NO12/RAN/2019 A.Y. 2014-15 DCIT, C.C DHANBAD VS. M/S JAI JAGDAMBA CEREAL U DYOG PVT. LTD. PAGE 6 AND THE APPELLANT HAS FURNISHED THE RETURN ON 30.11 .2014. FURTHER THE APPELLANT HAS NOT ADMITTED ANY UNDISCLOSED INCOME I N A STATEMENT RECORDED U/S.132(4) NOR PAID ANY TAXES ON THE ADMITTED INCOM E. THEREFORE THE CASE OF THE APPELLANT IS NOT GOVERNED BY SEC.271AAB(1)(A) A ND 271AAB(1)(B). THE APPELLANT'S CASE CLEARLY FALLS U/S.271AAB(1)(C) WHE RE THE MINIMUM PENALTY PRESCRIBED IS 30% AND MAXIMUM PENALTY IS 90% OF UND ISCLOSED INCOME. FURTHER, AS PER CLAUSE (2) OF SEC. 271AAB. NO PENAL TY UNDER THE PROVISIONS OF CLAUSE (C) OF SUB-SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN RESPECT OF THE UNDISCLOSED INCOME REFER RED TO IN SUB-SECTION (1) OF SEC.271AAB. ACCORDINGLY, THE AO SHOULD HAVE INIT IATED AND LEVIED PENALTY U/S.271AAB(1)(C) INSTEAD OF 271(I)(C). IN THIS REGA RD RELIANCE IS PLACED ON THE DECISION OF THE HON'BLE ITAT LUCKNOW BENCH IN THE CASE OF SANDEEP CHANDK VS. ACIT REPORTED IN (2017) 88 TAXMANN.COM 8 15 WHEREIN IT WAS HELD THAT - THE PROVISIONS OF SECTION 271(1) (C) AND THE PROVISIONS OF SECTION 271AAB ARE ENTIRELY DIFFERENT. ISSUING THE NOTICE U NDER SECTION 271(1)(C) WILL NOT AUTOMATICALLY DEEM THAT THE ASSESSING OFFICER H AS INITIATED THE PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 271AAB AND ACCORDINGLY, GIVE AN OPPORTUNITY TO THE ASSESSEE. THERE IS NO PR OVISION UNDER SECTION 271AAB THAT THE PENALTY HAS TO BE INITIATED DURING THE ASSESSMENT PROCEEDING BUT, IT IS ESSENTIAL TO INITIATE THE PENALTY PROCEE DINGS UNDER SECTION 271AAB. WHERE THE NOTICE DID NOT RELATE TO THE PROVISION OF SECTION 271AAB, THE NOTICE ISSUED UNDER SECTION 271 (1)(E) CANNOT BE SAID TO B E VALID FOR INITIATION OF PROCEEDINGS UNDER SECTION 271AAB. FURTHER, THERE IS NO MATERIAL DIFFERENCE WITH REGAR D TO LEVY OF PENALTY U/S.271AAA AND U/S.271AAB EXCEPT THE DATE OF INITIA TION OF SEARCH. IN FOLLOWING DECISIONS IT WAS HELD THAT WHERE THE ASSE SSEE IS COVERED BY SEC.271AAA, INITIATION AND LEVY OF PENALTY VI] S.27 1 (L)(C) WAS HELD TO BE BAD IN LAW. (I) THE THE HON'BLE ITAT DELHI BENCH IN THE CASE OF ASWANI KUMAR ARORA VS. ACIT REPORTED IN (2016) 50 ITR (TRIB) 37 DATED 19/05/2016. THE RELEVANT PORTION IS REPRODUCED HEREUNDER: '13. WHEN AFORESAID UNDISPUTED FACTS ARE EXAMINED I N THE LIGHT OF THE AMENDED PROVISIONS CONTAINED UNDER SUB - SECTION (2) AND (3) OF SECTION 271 AAA, THE PENALTY IN THIS CASE, IF AT ALL LEVIABLE, IT SHOULD HAVE BEEN LEVIE D UNDER SECTION 271AAA(1) AND NOT U/S 271(1)(C) AS HAS CATE GORICALLY BEEN PROVIDED IN SUB-SECTION (3) OF SECTION 271AAA. INTENTION OF THE LEGISLATIVE IN INCORPORATING THE P ROVISIONS CONTAINED U/S 271AA EFFECTIVE DURING THE PERIOD 1ST JUNE, 2007 TO 1ST JULY, 2012 IS TO PROVIDE GENERAL AMNEST Y IN SEARCH AND SEIZURE CASES, AND THE CASE OF THE ASSES SEE UNDISPUTEDLY FALLS U/S 271 AAA AND CANNOT BE DEALT WITH U/S 271(1)(C) BY ANY STRETCH OF IMAGINATION EVEN. 14. SO, WE ARE OF THE CONSIDERED VIEW THAT THE VERY INITIATION OF THE PENALTY PROCEEDINGS AGAINST THE ASSESSEE U/S 271(1)(C) ARE VITIATED IN VIEW OF THE AMENDED PROVI SIONS OF IT(SS)A NO12/RAN/2019 A.Y. 2014-15 DCIT, C.C DHANBAD VS. M/S JAI JAGDAMBA CEREAL U DYOG PVT. LTD. PAGE 7 LAW APPLICABLE EFFECTIVE FROM 1.6.2007 TILL 1.7.201 2, AS THE ADDITIONAL INCOME TO THE TUNE OF RS.36,80,520/- WAS DISCLOSED BY THE ASSESSEE ON THE BASIS OF SEARCH OP ERATION CONDUCTED ON 10.02.2009. SO, WITHOUT GOING INTO THE MERITS OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT INI TIATION OF PENALTY PROCEEDINGS AS WELL AS PENALTY ORDERS AND IMPUGNED ORDER PASSED BY THE ID. CIT(A) ARE NOT SUSTAINABLE IN THE EYES OF LAW. HENCE, PRESENT APPE AL IS ALLOWED AND PENALTY IMPOSED IN THIS CASE TO THE TUN E OF RS.12,24,600/- IS HEREBY DELETED. ' (II) THE HON'BLE ITAT KOLKATA BENCH IN THE CASE OF ACIT V. KAILASH COURIER P LTD REPORTED IN (2015) TAX PUB (DT) 4861 DATED 16/1 2/2014. THE RELEVANT PORTION IS REPRODUCED HEREUNDER: ' 6 . WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND RECORDS. IT IS APPARENT THAT SEARCH IN THIS CASE WAS CARRIED ON 5- 8-2008 AND THE INCOME UPON WHICH PENALTY UNDER SECTION 271(1)(C) O F THE ACT HAS BEEN LEVIED IS UNDISCLOSED INCOME AS CLAIMED BY THE REVE NUE ARISING OUT OF THE SAID SEARCH. AS PER THE MANDATE UNDER SECTION 2 71 AAA OF THE ACT AFTER SEARCH INITIATED UNDER SECTION 132 ON OR AFTE R 1-6-2007 BUT BEFORE 1-7-2012 PENALTY WAS LEVIABLE UNDER SECTION 271AAA OF THE ACT. SUB- SECTION (3) OF 271AAA CLEARLY PROVIDES THAT IN SUCH CASE NO PENALTY UNDER SECTION 271(1)(C) OF THE ACT CAN BE IMPOSED. IN THIS VIEW OF THE MATTER WE AGREE WITH THE LEARNED COUNSEL OF THE ASS ESSEE THAT NO PENALTY UNDER SECTION 271 (1 )(C) OF THE ACT WAS LE VIABLE, IN AS MUCH AS THE CASE COMES UNDER THE PURVIEW OF SECTION 271AAA OF THE ACT. THERE IS NO AMBIGUITY IN THIS REGARD, AND THE VIEW IS ALS O SUPPORTED BY THE TRIBUNAL DECISION IN THE CASE OF CARIO INTERNATIONA L (SUPRA). ACCORDINGLY WITHOUT ADVERTING TO THE PLANK ON WHICH THE LEARNED COMMISSIONER (APPEALS) DELETED THE PENALTY, WE HOLD THAT THE ASS ESSEE IN THIS CASE CANNOT BE VISITED FOR THE PENALTY UNDER SECTION 271 (1)(C) OF THE ACT IN AS MUCH AS THE CASE FALLS UNDER 271AAA OF THE ACT. ACCORDINGLY WE UPHOLD THE DELETION OF PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT.' IN VIEW OF THE ABOVE DISCUSSION AND RELYING ON THE JUDICIAL PRONOUNCEMENTS, I HOLD THAT THE APPELLANT FOR THE ASSESSMENT YEAR UND ER APPEAL, CANNOT BE VISITED WITH PENALTY UNDER SECTION 271(1)(C) OF THE ACT, AS THE APPELLANT'S CASE FALLS UNDER SECTION 271AAB. I FURTHER HOLD THAT THE MISTAKE BEING SO GRAVE AND FATAL THE SAME CANNOT BE CURED BY RESORTING TO SECT ION 292B OF THE ACT. ACCORDINGLY THE AO IS DIRECTED TO DELETE PENALTY LE VIED UNDER SECTION 271(1)(C) OF RS.1,12,05,200/-. IT IS THUS CLEAR FROM A PERUSAL OF THE FOREGOING EX TRACTED LOWER APPELLATE DISCUSSION THAT THE CIT(A) HAS REVERSED ASSESSING O FFICERS ACTION FOR THE SOLE REASON THAT SINCE THE INSTANT LIS INVOLVES A SEARCH CASE COVERED UNDER A IT(SS)A NO12/RAN/2019 A.Y. 2014-15 DCIT, C.C DHANBAD VS. M/S JAI JAGDAMBA CEREAL U DYOG PVT. LTD. PAGE 8 SPECIFIC PROVISION U/S 271AAB OF THE ACT, THE IMPUG NED PROCEEDINGS U/S. 271(1)(C) OUGHT NOT TO HAVE BEEN INITIATED. THIS CL INCHING ASPECT HAS GONE UNREBUTTED FROM THE REVENUE SIDE THAT THE ASSESSING OFFICER HAD INDEED INVOLVED SEC. 271(1)(C) PROCEEDINGS ONLY. THE TRIBU NALS CO-ORDINATE BENCH DECISION(S) (SUPRA) HAVE ALREADY MADE IT CLEAR THAT THE SPECIFIC PROVISION DEALING WITH SUCH PENALTY I.E. SEC. 271AAB HAS OVER RIDING EFFECT OVER THE GENERAL ONE THAT THE SEC. 271(1)(C) IN OTHER WORDS. WE ADOPT THE SAME REASONING MUTATIS MUTANDIS AND CONFIRM THE CIT(A)S ACTION DELETING THE IMPUGNED PENALTY. 4. THIS REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT AT THE CLOSE OF HEAR ING ON TUESDAY 1 ST SEPTEMBER, 2020 SD/- S D/- ( ') ($% ') (J.SUDHAKAR REDDY) (S.S.G ODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) *DKP SR.P.S. &- 01 / 09/ 20 20 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ACIT, CIR-1(1), 1 ST FLOOR, AAYKAR BHAWAN, L.C. ROAD, DHANBAD-826001 2. /RESPONDENT-SHRI GOPAL BARAN CHATTOPADHYAY 505, 5 TH FLOOR, SHANTI BHAWAN, BANK MORE, DHANBAD-8 76001 3. 0 3 / CONCERNED CIT RANCHI 4. 3- / CIT (A) RANCHI 5. 6 %%0, 0, / DR, ITAT, RANCHI 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, 0,