SMT. ELANGOVAN MALARMANGAI @ SWETHA,CHENNAI V. ADDL. CIT, CENTRAL RANGE-2, CHENNAI

BMA 9/CHNY/2024

AI Insights

The case involves multiple appeals by Smt. Elangovan Malarmangai @ Swetha against the orders of the Commissioner of Income Tax (Appeals)-18, Chennai, concerning assessments and penalties under the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015. The primary issues revolved around the alleged undisclosed foreign investments in Singapore and the corresponding penalties for non-disclosure. The tribunal examined the legal provisions of the Black Money Act, the facts of the case, including the search and seizure operations conducted, and the subsequent assessments and penalties imposed by the tax authorities.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 312893 (ITAT-CHENNAI)
• Appeal Type: Black Money Appeal
• Pronouncement Date: 30-04-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2017-2018
• Other Referred Cases: Principal Commissioner of Income Tax, Central v. Income Tax Settlement Commission, Anandi Kaushik Laijawala, Yashovardhan Birla v. CIT (A)-51, Sri Srinjoy Bose v. A.D.I.T. (Inv.)
• Laws Referred To: Income Tax Act, 1961, Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T.M. SUGANTHAMALA
• Assessee Lawyers: B. RAMAKRISHNAN; M. LAVANYA
• Keywords: Set aside; Corroborative evidences; Unexplained investment; Search and seizure; Rectification of order
• Section: 143(3); 139; 234B

Judgement Text

" आयकर अपीलीय अिधकरण,‘ बी’ ᭠यायपीठ,चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH, CHENNAI ᮰ी जॉजᭅ जॉजᭅ के, उपा᭟यᭃ एवं ᮰ी एस.आर.रघुनाथा, लेखा सद᭭य के समᭃ BEFORE SHRI GEORGE GEORGE K, HON’BLE VICE PRESIDENT AND SHRI S.R. RAGHUNATHA, HON’BLE ACCOUNTANT MEMBER BMA Nos.: 7, 8, 9, 10 & 11/CHNY/2024 िनधाŊरण वषŊ / Assessment Years: 2016-17 & 2017-18 Smt. Elangovan Malarmangai @ Swetha, No.1, 1st Main Road, Kasturbai Nagar, Adyar, Chennai – 600 020. Vs. The Addl.Commissioner of Income Tax, Central Range – 2, Chennai. PAN: BBFPS 3979D (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथŎ की ओर से/Appellant by : Shri B. Ramakrishnan, FCA & Ms.M. Lavanya, FCA ŮȑथŎ की ओर से/Respondent by : Ms. T.M. Suganthamala, CIT सुनवाई कȧ तारȣख/Date of Hearing : 27.02.2025 घोषणा कȧ तारȣख/Date of Pronouncement : 30.04.2025 आदेश /O R D E R PER S. R. RAGHUNATHA, ACCOUNTANT MEMBER: These appeals by the assessee are filed against the different orders of the Commissioner of Income Tax (Appeals)-18, Chennai, dated 28.11.2024 for the assessment years 2016-17 & 2017-18. :-2-: BMA. Nos:7 to 11/Chny/2024 2. Since facts are identical and issues are common, for the sake of convenience we dispose off all these appeals by this consolidated order. 3. The brief facts of the case are that Smt. Elangovan Malarmangai alias Swetha, is a resident individual, residing at No.1st Main Road, Kasturbai Nagar, Adyar, Chennai – 600020. The original jurisdiction of the assessee lies with DCIT, Central Circle-2(3), Chennai. A search and seizure action u/s.132 of the Income Tax Act, 1961 (hereinafter the ‘Act’) was carried out on 13.07.2016 at her residential property. During the course of search and seizure action, it was alleged by the Assessing Officer (‘AO’) that evidence pertaining to the undisclosed foreign investments in Singapore were identified. Pursuant to receipt of information from the DDIT(Inv), Unit-1(1), Chennai, on perusal of the same, it was alleged by the AO that the assessee has made certain investments through acquiring assets abroad, particularly in two immovable properties (Apartments) in Singapore located at #06-02 and #09-02 at 93, Meyer Road, The Meyerise, Singapore-437986 from M/s.Hong Leong Holding Limited. Further, it was alleged that the assessee has also admitted the same facts vide her statement dated 13.07.2016 during the search operation conducted u/s.132(4) of the Act on the :-3-: BMA. Nos:7 to 11/Chny/2024 same date. It was also contended that documents in the form of Bank account statements held with OCBC Limited, Singapore, Sale deed for both the properties, Sanction letter for Housing Loan availed by the assessee from OCBC Limited and Un-registered deed of Trust were obtained from Foreign Tax and Tax Research (‘FTTR’) through CBDT. Thereafter, it was contended by the department that since the above foreign investments in the properties /beneficial ownership of the above said properties held by the assessee in Singapore, has not been disclosed to the Department, the proceedings under the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 [hereinafter referred as ‘Black Money Act’ / ‘BM Act’] were initiated in the case of the assessee. 3.1 The assessee was in receipt of Notice u/s.10(1) of the Black Money Act dated 21.03.2020 wherein the assessee was provided an opportunity to produce evidence in support of her contentions and was also asked to furnish working of “Undisclosed assets located outside India” and income derived therefrom for the subject A.Y.2017-18. Further, it was observed by the AO that the assessee did not file her return of income from the A.Y.2006-07 onwards. Hence, it was alleged that the assessee did not disclose the said :-4-: BMA. Nos:7 to 11/Chny/2024 foreign investment and the bank accounts in the return of income nor the same was disclosed in the return of income filed during the post search proceedings for A.Ys.2011-12 to A.Y.2015-16 filed on 20.12.2018, A.Y.2016-17 & A.Y.2017-18 filed on 31.03.2018. 3.2 On perusal of the submissions made during the assessment proceedings, the assessment u/s.10(3) of the BM Act was then completed vide Order passed on 24.03.2022, making the following additions under the BM Act, whereby a demand of Rs. 6,03,24,717/- was also raised: - Rs.17,13,73,680/- equivalent to SGD 35,23,380 pertaining to the margin money alleged to be spent by the assessee towards the subject properties at Singapore was taxed as ‘undisclosed investments’ under the BM Act as income of the assessee for the A.Y.2016-17 (on substantive basis) and 2017-18 (on protective basis). - Rs.2,97,08,710/- equivalent to SGD 617,388 pertaining to the cash deposits in the bank statements furnished for the period May 2016 to April 2017 was taxed as ‘undisclosed foreign income’ under the BM Act as income of the assessee for the AY 2017-18. - Apart from the above, the Ld. Joint Commissioner of Income Tax, Central Range- 2, Chennai, subsequently levied a penalty under section 41 of the BM Act to the tune of Rs.18,09,74,151/- vide Order passed on 24.02.2023 and that under Section 43 of the BM Act to the tune of Rs.10,00,000/- vide Order also passed on the same date (i.e.) 24.02.2023. - Further, a Rectification Order was passed u/s.12 of the BM Act on 29.03.2023, raising a further demand of Rs. 4,32,51,921/-, levying interest u/s.40(1) of the Act at Rs.48,25,977/- and :-5-: BMA. Nos:7 to 11/Chny/2024 u/s.40(2) of the Act at Rs.3,84,25,944/- that was not raised u/s.10(3) of the BM Act. 4. Aggrieved by the above Assessment and Penalty Orders, the assessee had filed an appeal before the Ld.CIT(A)-18, Chennai against each of the said Orders. However, vide Order dated 28.11.2024 passed u/s.16 of the BM Act, the Ld.CIT(A) had dismissed the said quantum appeal by upholding the underlying assessment, also confirming the addition of Rs.17,13,73,680/- on a ‘substantive basis’ for the subject A.Y.2017-18, while deleting the said addition made on a ‘protective basis’ for the preceding A.Y.2016-17. 5. The assessee had preferred the current appeal (BMA No.08/CHNY/2024) before us against the above Orders passed by the Learned CIT(A) for the subject A.Y.2017-18. In this regard, it is submitted as under: Ground Nos. 3 and 4 :Assessment under the BM Act is bad in law: 6. The Ld.AR for the assessee submitted that the assessee had been subjected to assessment proceedings u/s.10(3) of the BM Act for the subject AY 2017-18, that were initiated vide notice dated :-6-: BMA. Nos:7 to 11/Chny/2024 21.03.2020 issued u/s.10(1) of the BM Act, as recorded by the AO vide para 2.3. of the Assessment Order passed in this regard. 6.1 The Ld. AR drawn our attention to the provisions of the Charging section (Section 3 of the BM Act), which is reproduced here below, for the sake of brevity : “3. Charge of tax.—(1) There shall be charged on every assessee for every assessment year commencing on or after the 1st day of April, 2016, subject to the provisions of this Act, a tax in respect of his total undisclosed foreign income and asset of the previous year at the rate of thirty per cent. of such undisclosed income and asset: Provided that an undisclosed asset located outside India shall be charged to tax on its value in the previous year in which such asset comes to the notice of the Assessing Officer……” (emphasis supplied) In this connection, it is pertinent to read the provisions of Sections 72 & 81 of the BM Act on ‘Removal of doubts’ & ‘Assessment not to be invalid on certain grounds’ respectively that reads as under: “72. Removal of doubts.— For the removal of doubts, it is hereby declared that— (a) save as otherwise expressly provided in the Explanation to sub- section (1) of section 69, nothing contained in this Chapter shall be construed as conferring any benefit, concession or immunity on any person other than the person making the declaration under this Chapter; (b) where any declaration has been made under section 59 but no tax and penalty has been paid within the time specified under section 60 and section 61, the value of such asset shall be chargeable to tax under this Act in the previous year in which such declaration is made; (c) where any asset has been acquired or made prior to commencement of this Act, and no declaration in respect of such asset is made under this Chapter, such asset shall be deemed to :-7-: BMA. Nos:7 to 11/Chny/2024 have been acquired or made in the year in which a notice under section 10 is issued by the Assessing Officer and the provisions of this Act shall apply accordingly.” (emphasis supplied) “81. Assessment not to be invalid on certain grounds.— No assessment, notice, summons or other proceedings, made or issued or taken or purported to have been made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such assessment, notice, summons or other proceeding if such assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.” 6.2 Further, the ld.AR advanced his arguments and stated that in the absence of specific information as to when such asset came to the notice of the AO as required u/s.3 of the BM Act as stated above, the date of issue of notice u/s.10(1) of the BM Act ought to be considered as the ‘relevant date’ for this purpose. As such, on a conjoint reading of the provisions of Section 3 of the BM Act and the facts of the case, the following facts emerge: - The foreign assets in dispute (i.e.) the properties at Singapore and the savings bank account No.647746619001 held with OCBC Bank, Singapore had come to the notice of the AO on 21.03.2020 (i.e.) F.Y.2019-20 applicable to A.Y.2020-21, since the notice u/s.10(1) of the BM Act had been issued. - The assessment proceedings had been initiated u/s.10 of the BM Act for the A.Y.2017-18 through such notice issued on 21.03.2020 u/s.10(1) of the BM Act. - Assuming but not admitting, the assessment proceedings, if any, to be initiated in line with the charging Section 3 of the BM Act can only be for A.Y.2020-21 (i.e.) the applicable Assessment year in which such assets in dispute had come to the notice of the AO. :-8-: BMA. Nos:7 to 11/Chny/2024 - Hence, the assessment proceedings u/s.10 of the BM Act for the subject A.Y.2017-18 is bad in law. 6.3 Moreover, the ld.AR submitted that invoking of such assessment u/s.10 of the BM Act for the subject A.Y.2017-18 cannot be construed as a ‘mistake, defect or omission in such assessment’ as laid down u/s.81 of the BM Act to make it valid for the simple reason that such assessment is, in substance and effect, not in conformity with or according to the intent and purpose of the BM Act as laid down there under. 6.4 The ld.AR further summed up that a combined reading of Section 3 (Charging section), Section 10 (Assessment) and 72(c) (Removal of doubts) of the BM Act would mean that tax will be levied in the year in which the assessing officer issues a notice to the assessee u/s.10(1) of the BM Act (irrespective of the year in which such income was earned or offshore asset was acquired) which shall be A.Y.2020-21 in the present facts of the assessee’s case. 6.5 The ld.AR relied on the following decisions in this regard: a) Hon’ble Gujarat High Court in the case of Principal Commissioner of Income Tax, Central v. Income Tax :-9-: BMA. Nos:7 to 11/Chny/2024 Settlement Commission [2019] 111 taxmann.com 176 (Gujarat), where, vide Para 14 of the Order, it had been observed that; “14. Thus, while in case of undisclosed foreign income of an assessee, the same would be subject to tax under the provisions of the Black Money Act only for every assessment year commencing on or after the 1st day of April 2016, namely assessment year 2016-17 onwards, insofar as undisclosed foreign asset located outside India is concerned, the previous year in which such asset is acquired is not relevant. In other words an undisclosed foreign asset would be subject to tax under the Black Money Act notwithstanding the date of its acquisition, which may even be a previous year prior to the assessment year commencing on 1st April 2016; and shall be charged to tax under this provision on the value of such asset in the previous year in which such asset comes to the notice of the Assessing Officer.” (emphasis supplied). (Case-law copy attached vide item no.1 to paperbook furnished - page nos. 1 to 42). b) Mumbai ITAT in the case of Anandi Kaushik Laijawala [TS- 111-ITAT-2025(Mum)] vide Order dated 17.02.2025 wherein it had been held that the ‘assessment year’ for assessing the said foreign assets would have to be determined based on the date the notice was issued u/s 10(1); Outlines proviso to Section 3(1) of BMA that states the undisclosed asset located outside India shall be chargeable to tax on “its value in the previous year in which the asset comes to the notice of the AO”; Highlights the interplay between the proviso to Section 3(1) and Section 72 in respect of assets acquired or made prior to the commencement of Act and which has not been declared u/s.59 of the BM Act. The relevant extracts are given below for reference: “6. In the instant cases, the impugned foreign assets have been acquired by both the assessees prior to the commencement of the BMIT Act and further they have also not filed any declaration u/s 59 of the Act voluntarily. Hence the deeming provisions mentioned in sec.72(c) of BMIT Act shall apply to the facts of the present cases. Accordingly, the “assessment year” for assessing those foreign :-10-: BMA. Nos:7 to 11/Chny/2024 assets would have to be determined on the basis of date of notice issued by the AO u/s.10(1) of the Act. We noticed earlier that the proviso to sec.3(1) of the BMIT Act stated that the undisclosed asset located outside India shall be charged to tax on “its value in the previous year in which asset comes to the notice of the Assessing officer”. A interplay between the proviso to sec.3(1) and sec. 72(c) in respect of assets acquired or made prior to the commencement of Act and which has also not been declared u/s 59 of the Act, may be explained as under:- (a) the determination of value of the undisclosed asset located outside India is one thing and assessing the said value under BMIT Act is another thing. (b) While the value of the undisclosed asset will be determined on the basis of its value prevailing in the previous year in which such asset comes to the notice of the assessing officer, the same will be assessed in the hands of the assessee only in the assessment year, which is determined in terms of sec.72(c) of the Act.” ……………… “10.1. We notice that the notice dated 27-04-2018 is issued for AY 2018-19 and the same is contrary to the provisions of sec.72(c) of the BMIT Act. We noticed that section 72(c) is a deeming provision as per which the undisclosed assets are deemed to have been acquired during the previous year in which such notice is issued. Since the second notice is issued on 27-04-2019, the impugned undisclosed assets are deemed to have been acquired during the previous year 2018-19 and accordingly they have to be assessed in assessment year AY 2019- 20 only. Hence the AO could not have passed the assessment order for AY 2018- 19 on the strength of notice dated 27-04-2018. Accordingly, the said notice would not also validate the assessment order passed for AY 2018-19. 11. We noticed that the AO has also issued two more notices u/s 10(1) of the Act, viz., on 10-07-2018 and 09-11-2018. On the strength of those notices, the AO could have framed assessment order for AY 2019-20 only in view of the deeming fiction enshrined in sec.72(c) of the Act and not for AY 2018-19. 12. The foregoing discussions would show that the assessing officer did not acquire jurisdiction in accordance with law for assessing the undisclosed assets and income in Assessment year 2018-19 by issuing a valid notice. In the absence of a valid notice issued for the impugned assessment year, we have to quash the orders passed by the tax authorities in the hands of both the assessees herein. We order accordingly.” (emphasis supplied) :-11-: BMA. Nos:7 to 11/Chny/2024 The Learned CIT(A), in this regard, vide para 5.5.1. of the impugned Appellate Order had held that since the search took place on 13.07.2016, the applicable F.Y. being F.Y.2016-17 the relevant A.Y. being the subject A.Y.2017-18 is the applicable year in which the alleged undisclosed foreign assets came to the notice of the AO, the said assets are deemed to have been acquired then and hence, the assessment proceedings initiated for the said A.Y. had been held as valid by him. 6.6 In this regard, the ld.AR submitted that the Ld.CIT(A) had failed to appreciate the applicable provisions of Section 72(c) of the BM Act reproduced as above, wherein it has been clearly stated that where any asset has been acquired or made prior to commencement of this Act, and no declaration in respect of such asset is made under this Chapter, such asset shall be deemed to have been acquired or made in the year in which a notice under section 10 is issued by the AO which squarely covers the assessee’s facts of the case. 6.7 Based on the above, the ld.AR prayed that the assessment made u/s.10(3) of the BM Act be quashed as null and void since the same is bad in law. :-12-: BMA. Nos:7 to 11/Chny/2024 7. Ground no.5 :Appellate Order passed u/s.16 of the BM Act in lieu of the applicable 15(5) of the BM Act Not pressed. 8. Ground Nos. 6 & 7 : Sum already assessed to tax under the Income Tax Act cannot be taxed again under the BM Act On perusal of the Assessment Order passed u/s.10(3) of the BM Act, it is understood that the sum of Rs.17,13,73,680/- that had been brought to tax under the BM Act towards ‘undisclosed foreign asset’ that is equivalent to SGD 35,23,380 pertains to the margin money paid by Shri Krishnan Appao, the assessee’s Uncle and the Settlor of the subject Trust, with respect to the two properties at Singapore under dispute. The sum had been arrived at by converting the SGD into Indian Rupees based on the reference rate of the Reserve Bank of India average rate (INR 48.639 per SGD) on the date of valuation for the A.Y.2016-17. 8.1 In this regard, it is submitted that the assessee was subjected to assessment proceedings under the Income Tax Act for the A.Ys. 2011-12 & 2012-13 u/s.143(3) r.w.s.153C of the Income Tax Act that was completed vide Orders dated 31.12.2018, wherein Rs.1,15,00,000/- and Rs.7,99,00,000/- (i.e.) the then INR :-13-: BMA. Nos:7 to 11/Chny/2024 equivalent to SGD brought to tax later under the BM Act, was added u/s.69 of the Income Tax Act as ‘unexplained investment’ towards receipt of margin money from Shri Krishnan Appao during the A.Y.s 2011-12 & 2012-13 respectively in connection with the properties at Singapore in dispute under the BM Act. (Copy of the relevant Assessment Orders dated 31.12.2018 passed u/s.143(3) r.w.s. 153C of the Income Tax Act had been placed as item nos. 2 & 3 of paper book filed - page nos. 43 to 58). 8.2 It is further submitted that while the additions under the Income Tax Act for the A.Y.s 2011-12 & 2012-13 were made based on receipt of margin money during the relevant previous year from Shri Krishnan Appao, the additions under the BM Act towards the same margin money had been made based on valuation of the properties in Singapore including that of applicable stamp duty less the bank loan obtained from OCBC Bank Limited, Singapore in this regard – that was valued at SGD and was converted into Indian currency as per the reference rate of the Reserve Bank of India average rate (ie) INR 48.639 per SGD on the date of valuation for the A.Y.2016-17. In other words, where the sum brought to tax under both the Income Tax Act and the BM Act pertained to the :-14-: BMA. Nos:7 to 11/Chny/2024 margin money received with respect to the subject properties at Singapore, the difference in the amounts involved arise from the difference in the basis of valuation as stated above. 8.3 Further, the ld.AR drawn our attention to the provisions of Section 4(3) & 5 of the BM Act, reproduced here below, for the sake of brevity; “4(3) The income included in the total undisclosed foreign income and asset under this Act shall not form part of the total income under the Income-tax Act.” “5. (1) In computing the total undisclosed foreign income and asset of any previous year of an assessee,— (i) no deduction in respect of any expenditure or allowance or set off of any loss shall be allowed to the assessee, whether or not it is allowable in accordance with the provisions of the Income-tax Act; (ii) any income,— (a) which has been assessed to tax for any assessment year under the Income-tax Act prior to the assessment year to which this Act applies; or (b) which is assessable or has been assessed to tax for any assessment year under this Act, shall be reduced from the value of the undisclosed asset located outside India, if, the assessee furnishes evidence to the satisfaction of the Assessing Officer that the asset has been acquired from the income which has been assessed or is assessable, as the case may be, to tax. (2) The amount of deduction referred to in clause (ii) of sub-section (1) in case of an immovable property shall be the amount which bears to the value of the asset as on the first day of the financial year in which it comes to the notice of the Assessing Officer, the same proportion as the assessable or assessed foreign income bears to the total cost of the asset.” (emphasis supplied) :-15-: BMA. Nos:7 to 11/Chny/2024 8.4 The ld.AR further stated that on a combined reading of the above, it is evident that where an addition to taxable income had been made under the Income Tax Act, such sum cannot be brought to tax again under the BM Act. However, in the assessee’s case in hand, while an addition had been made under the Income Tax Act towards such ‘undisclosed investment’, addition under BM Act also had been made as ‘undisclosed foreign asset’ relating to the same issue, which is unsustainable in law. 8.5 Reliance in this regard is also placed on the following decisions:  ITAT Kolkata Bench 'B' in the case of Sri Srinjoy Bose v. A.D.I.T. (Inv.) [2023] 150 taxmann.com 273 (Kolkata - Trib.) wherein it had been held that where the value of the alleged investments received by the assessee in India has already been subjected to Income-tax and taxing the same amount under the Black Money Act, 2015 will tantamount to double taxation.[Para 15] (Copy of the case- law has been submitted as item no.4 (page nos. 59-71) of the paper book filed)  ITAT, Mumbai in the case of Yashovardhan Birla v. CIT (A)-51, [BMA No. 01 (Mum.) of 2021, dated 3-9-2021] wherein it had been held that : ”The bar in the BM is inbuilt inasmuch as it has been provided that assets out of income assessed to income tax shall be excluded from the :-16-: BMA. Nos:7 to 11/Chny/2024 purview of undisclosed asset in BM Act. Hence, it is abundantly clear that as per the scheme of the act, there cannot be a simultaneously proceedings on the same asset/income under Income-tax Act, 1961 as well as BM Act. The doctrine of double prejudice does come into play here.” [Para 47] (Copy of the case-law has been submitted as item no.5 (page nos.72-234) of the paper book filed). 8.6 Further, Ld.AR stated that the CIT(A) had contended in this regard that: 1. The assessee had not provided any evidence that these assets were disclosed or assessed under the Income Tax Act prior to the enactment of the BM Act. 2. The provisions of the BM Act apply independently of any previous assessments under the Income Tax Act after the commencement of the BM Act. 3. The provisions of Section 5 of the BM Act, which allows for deduction of income already assessed under the Income Tax Act is not applicable in this case because the assessee has disputed the assessability under the Income Tax Act and no assessment has been made under the Income Tax Act prior to commencement of BMA. 8.7 As against the above contentions of the CIT(A), the Ld.AR submitted point-wise as follows: :-17-: BMA. Nos:7 to 11/Chny/2024 1. Copy of the Assessment Orders dated 31.12.2018 passed u/s.143(3) r.w.s. 153C of the Income Tax Act for the said A.Y.s 2011-12 & 2012-13 were filed before the CIT(A) vide submission made pertaining to Additional Ground No.10 taken before him whereby the fact that the subject sum was subjected to tax under the Income Tax Act was quite evident. The said A.Y.s being A.Y.2011-12 & 2012-13, they fall under the period prior to the enactment of the BM Act in 2015. Hence, the ld.CIT(A)’s contention in this regard is erroneous and ought not to be upheld. 2. The afore stated provisions of Section 4(3) and 5(1) under the BM Act makes it obvious that no sum brought to tax under the Income Tax Act can be taxed again under the BM Act which is applicable to the assessee’s case in hand. Hence, the CIT(A)’s contention in this regard is erroneous and ought not to be upheld. 3. Section 5(1)(ii) of the BM Act talks about ‘any income which has been assessed to tax for any assessment year under the Income-tax Act prior to the assessment year to which this Act applies’ and not about whether the said income so assessed had been disputed by the assessee or not. As such, the CIT(A)’s contention that the assessee has disputed the assessability under the Income Tax Act has no basis and that no assessment has been made under the Income Tax Act prior to commencement of BMA is erroneous since A.Y.s 2011-12 & 2012-13, both belonging to such prior period, had been subjected to assessment under the Income Tax Act, as also evidenced :-18-: BMA. Nos:7 to 11/Chny/2024 by the respective Assessment Order copies filed in this regard. 8.8 Based on the above, the Ld.AR prayed that the sum in dispute being already taxed under the Income Tax Act ought not to be taxed under the BM Act and hence the addition made of Rs.17,13,73,680/- towards ‘undisclosed foreign asset’ is not legally sustainable and hence needs to be deleted. 9. Ground Nos. 8 to 10 : Addition of Rs.17,13,73,680/- made towards undisclosed foreign investment 9.1 CIT(A)’s contentions : - The subject properties in Singapore are held in the assessee’s name. - The stamp duty certificates show that the assessee is the purchaser of the said properties. - The assessee had availed housing loan in Singapore and the respective repayment had been made through the assessee’s bank account held in Singapore. - The Trust Deeds settling the subject properties on the assessee as a Trustee is not a valid one. - The relationship of Shri Krishnan Appao with the assessee was not established. - The assessee’s claim that the subject margin money in dispute was provided by Shri Krishnan Appao was not supported by any evidence. :-19-: BMA. Nos:7 to 11/Chny/2024 - Hence, the CIT(A) had confirmed the addition of Rs. 17,13,73,680/- made towards ‘undisclosed foreign investment’ in the assessee’s hands on a ‘substantive basis’ for the subject AY 2017-18. 9.2 Assessee’s contentions: (i) At the outset, Ld.AR stated that the properties in dispute as mentioned herein do not belong to the assessee. It is submitted that the assessee is neither the owner nor the beneficial owner of the subject properties at Singapore. The assessee’s uncle Mr.Krishnan Appaoo, a Malaysian national and resident of Singapore, out of love and affection towards the assessee’s minor children, had created a trust and made assessee a trustee in respect of the aforesaid two apartments that were booked by him in Singapore. (ii) As per the Trust Deeds filed as item no.6 of the paper book filed (page nos. 235-244), the property is bound to be registered in the name of her children upon attaining the age of a majority. Since the foreign assets belong to the trust of which the assessee was the trustee, the same cannot per se be construed as properties owned by the assessee. :-20-: BMA. Nos:7 to 11/Chny/2024 (iii) The ld.AR further stated that neither the housing loan taken in the assessee’s name nor repayments through her bank account can establish the fact that the assessee was the owner of such properties, for the properties belonged to the trust of which the assessee was the trustee and as such, the legal formalities were carried out in her name and not otherwise. (iv) The Trust Deeds executed in this regard are very much valid in that they had been appropriately executed; duly witnessed by Shri.Rasanathan, Advocate & Solicitor, Singapore and also notarized by Shri.Thanapathy Ulaganathan Naidu. (v) Shri Krishnan Appao was the uncle of the assessee which fact had been placed before the CIT(A). (vi) Owing to the demise of Shri Krishnan Appao subsequently, confirmation letter to the effect that the margin money was paid by him could not be produced during the appellate proceedings. However, it is submitted that the same cannot dispute the fact that the said sum was paid by him. (vii) It is further submitted that the assessee was merely holding the properties in fiduciary capacity. The beneficiaries of the properties are her children. Hence there is no question of :-21-: BMA. Nos:7 to 11/Chny/2024 undisclosed investment in the hands of the assessee, since the assessee is neither the owner, nor the beneficial owner of the properties. (viii) The Ld.AR drawn our attention to the fact that the term \"beneficial owner\" is not defined in the Black Money Act but is defined in Explanation 4 to Section 139(1) of the IT Act, 1961 which states that “For the purposes of this section \"beneficial owner\" in respect of an asset means an individual who has provided, directly or indirectly, consideration for the asset for the immediate or future benefit, direct or indirect, of himself or any other person”. (ix) On perusal of the same, it is evident that where no part of the consideration for the said properties at Singapore had been provided by the assessee as stated above, she by no stretch of imagination can be construed as the ‘beneficial owner’ in respect of these properties. Reliance in this regard is placed on the recent decision of the ITAT Jaipur Bench ‘A’ in the case of Krishna Das Agarwal vs DDIT/ADIT(Inv.)* [2023] 150 taxmann.com 290 (Jaipur - Trib.) wherein, in a similar scenario, it had been held that “As it has already been held that the company APFZE based at UAE is a separate legal entity and all the funds/investments, etc., belong to the company and no tax liability can be fastened on the assessee, taking a consistent view of the matter, the assessee clearly does not fall within the ambit of the term 'beneficial owner' as he is not the provider of the consideration of the asset.” [Para 40]. :-22-: BMA. Nos:7 to 11/Chny/2024 (Copy of the said case-law is enclosed as Annexure 1.) (x) The ld.AR also submits that the sources of margin money brought to tax was also duly explained by the assessee stating that the same were made by the assessee’s uncle Shri Krishnan Appaoo who had paid SGD 2.6 Million upfront, out of his own savings over a lifetime and that of SGD 4.36 million was borrowed from OCBC Bank. The said fact is also evidenced by the clause in the Trust Deed wherein it states that the Settlor (Shri Krishnan Appaoo) “has purchased the property set in Schedule A… 2. The settlor will provide the funds for the purchase of Property to the trustee…”. (xi) It is also submitted that the copy of all the references made to FTTR or that of the documents obtained therefrom had not been shared with the assessee. It is prayed that the same may be called for the said references made to FTTR along with the documents obtained in response to examine the same in light of the abovementioned facts and circumstances involved in the assessee’s case in hand. (xii) Based on the above, the Ld.AR prayed that the addition of Rs.17,13,73,680/- made towards ‘undisclosed foreign investment’ be deleted. :-23-: BMA. Nos:7 to 11/Chny/2024 10. Ground No. 11 : Addition of Rs. 2,97,08,710/- on account of undisclosed foreign Income: The Learned CIT(A) had upheld the addition of Rs.2,97,08,710/- on account of ‘undisclosed foreign Income’ pertaining to cash deposits during the applicable FY 2016-17 in the assessee’s bank account number 647746619001 held with OCBC Bank, Singapore during the relevant previous year for want of explanation. 10.1 In this regard, at the outset, the Ld.AR submitted that the said savings bank account number 647746619001 held with OCBC Bank, Singapore had come to the notice of the Assessing Officer on 21.03.2020 (i.e.) F.Y.2019-20 applicable to A.Y.2020-21 since the notice u/s.10(1) of the BM Act had been issued then, whereby the said asset cannot be brought to tax in the subject A.Y.2017-18. 10.2 Further, ld.AR submitted that the Assessing Officer ought not to have made the said addition merely, since the bank statement showed cash deposits without considering the facts and the circumstances of the case in hand. Also, no other corroborative evidence had been brought on record to prove that such cash deposits were the ‘undisclosed foreign income’ of the assessee. :-24-: BMA. Nos:7 to 11/Chny/2024 10.3 Hence, it is prayed that in the absence of any corroborative evidence brought on record, the addition of Rs.2,97,08,710/- made on account of undisclosed foreign Income be deleted. 11. Considering the above arguments, the ld.AR prayed to quash the assessment made u/s.10(3) of the BM Act as null and void / delete the above-mentioned additions made in the assessment. 12. Per contra the Ld.DR asserting the action of the Ld.CIT(A) submitted that the investment made in two flats at Singapore by the assessee has been accepted in the sworn statement during the course of search operations and hence there is no infirmity in the order of Ld.CIT(A) in confirming the addition made by the AO. Further, the Ld.DR advanced the arguments on each ground of appeal raised by the assessee. Ground No.1 and 2.: These are general grounds and no adjudication is required. 13. Ground No.3 and 4: The Ld. CIT(A) erred in confirming the protective addition as substantive addition for A.Y.2017-18. :-25-: BMA. Nos:7 to 11/Chny/2024 The Ld.DR submitted that as regards the contention raised by the assessee that the undisclosed foreign asset should be brought to tax in the AY 2020-21, that is AY relevant to the year in which notice u/s.10(3) was issued, relying on the provisions of Sec.72(c) of the Act, is not acceptable. 13.1 The Ld.DR placed a reliance on the CBDT Circular No.13 of 2015 dated 6th July, 2015 and the said Circular was issued in the context of Chapter VI of BMIT Act with regard to the tax compliance scheme by Central Board of Direct Taxes (CBDT). 13.2 Following question and answer thereto clarifies the legal position:- “Question No.14: What are the consequences if no declaration under Chapter VI of the Act is made in respect of undisclosed foreign assets acquired prior to the commencement of the Act? Answer: As per section 72(c), where any asset has been acquired prior to the commencement of the Act and no declaration under Chapter VI of the Act is made then such asset shall be deemed to have been acquired in the year in which it comes to the notice of the Assessing Officer and the provisions of the Act shall apply accordingly...........” 13.3 Reliance is also placed on the decision of the ITAT Mumbai bench 'BMA' in the case of Rashesh Manhar Bhansali v. :-26-: BMA. Nos:7 to 11/Chny/2024 ACIT [2021] 132 taxmann.com 20 (Mumbai - Trib.) wherein Para 87 & 88 held as under: 87. Be that as it may, we have noted that Hon'ble Supreme Court's judgment has observed that... a \"bare reading of the provisions of section 3, read with section 2(9)(d), of the Black Money Act, would unambiguously show, that the legislative intent in so far as the charging tax on an undisclosed asset located outside India is concerned, is to charge the tax on its value in the previous year in which such asset comes to the notice of the Assessing Officer\" and that \"by virtue of these provisions, if such asset comes to the notice of Assessing Officer on 1-4-2016, he could charge such asset(s) on the basis of its value as would be ascertained in a previous year ending on 31-3-2016. A perusal of section 3 of the Black Money Act, would further reveal, that what is relevant is the date on which the Assessing Officer notices the acquisition by an assessee of undisclosed asset located outside India\". Once Their Lordships categorically appreciate that the relevant point of time for taxation, under the BMA, of an undisclosed foreign asset is the point of time when such an asset come to the notice of the Government, it is immaterial as to whether it existed at the point of time of taxation, or, for that purpose, even at the point of time when the provisions of the BMA came into existence. 88. In view of the above discussions, we approve the reasoning adopted by the learned CIT(A), and reject the contention of the learned senior counsel. 13.4 Accordingly, in this case, the assessee had not made any declaration under this Act and the assets came to the notice of the Assessing Officer in financial year 2016-17, the said assets shall be deemed to have been acquired in the year 2016-17 and accordingly the same was rightly assessed to tax in the AY 2017-18. 14 Ground No.5: CIT(A) Order passed u/s.16 instead of Section 15(5): :-27-: BMA. Nos:7 to 11/Chny/2024 Section 15(5) of BMA: The Commissioner (Appeals) shall hear and determine the appeal and, subject to the provisions of this Act, pass such orders as he thinks fit and such orders may include an order enhancing the assessment or penalty: Section 16(7) of BMA: The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons therefor. 14.1 In view of clear & express language u/s.16 of BMA, the ld.DR submitted that there is no merit in the contention in the order of CIT(A) passed u/s.16 was erroneous. Therefore, the Ld.DR prayed before the Tribunal that, ground no. 5 lacks merit and hence may be dismissed. 15. Ground No.6 and 7: The impugned Asset already been assessed to tax as “Unexplained Investments” u/s.69 of the Income Tax Act. The assessee has made a claim that deduction should be allowed in respect of the income assessed under the Income Tax Act from the income computed under the Black Money Act. 15.1 In this regard the Ld.DR submitted that the relief under Section 5 of the Black Money Act is applicable only when the income or asset has already been assessed under the Income Tax Act :-28-: BMA. Nos:7 to 11/Chny/2024 before the commencement of the Black Money Act. In this case, there was no assessment under the Income Tax Act in respect of undisclosed foreign assets before the commencement of the Black Money Act. Section 5 reads as under: 5. (1) In computing the total undisclosed foreign income and asset of any previous year of an assessee,- (i) no deduction in respect of any expenditure or allowance or set off of any loss shall be allowed to the assessee, whether or not it is allowable in accordance with the provisions of the Income-tax Act; (ii) any income,— (a) which has been assessed to tax for any assessment year under the Income-tax Act prior to the assessment year to which this Act applies; or (b) which is assessable or has been assessed to tax for any assessment year under this Act, shall be reduced from the value of the undisclosed asset located outside India, if, the assessee furnishes evidence to the satisfaction of the Assessing Officer that the asset has been acquired from the income which has been assessed or is assessable, as the case may be to tax. (emphasis supplied). 15.2 Thus, Ld.DR submitted that the reduction from the value of undisclosed foreign asset under Black Money Act u/s.5 is applicable only if the assessee furnishes satisfactory evidence that the foreign asset was acquired from income which has been assessed to tax, whereas in the instant case, the assessee has neither disclosed the foreign assets before the commencement of the Black Money Act nor accepted the assessability of such foreign assets under the :-29-: BMA. Nos:7 to 11/Chny/2024 Income Tax Act, as evidenced by the appeal made before the Ld.CIT(A) against the income tax assessments. 15.3 Further, the Ld.DR stated that the said Assessment u/s.143(3) r.w.s 153C is still pending before the Ld.CIT(A) and not yet attained the finality. The Assessee has raised the following grounds before the Ld.CIT (A) against the order u/s.143(3) r.w.s 153C: The Ld.AO erred in adding a sum of Rs.7.99 Crore being as “Unexplained Investments” u/s.69 of the Act for the AY 2012-13. The Ld. AO erred in adding a sum of Rs.1,15,00,000/- being as “Unexplained Investments” u/s.69 of the Act for the AY 2011-12. (Copy of Form No.35 filed before the ld.CIT(A) in respect of the AY 2011-12 and AY 2012-13 are enclosed) 15.4 Further, the Ld.DR submitted that the decision of the Hon’ble ITAT, Kolkata which was referred by the Assessee’s counsel in his Paper Book dated 28.01.2025 Pg 59-71 in the case of Shri Srinjoy Bose, Kolkata in BMA No.3/Kol/2022 dt 02.02.2023 is distinguishable on facts and is not relevant to the present case. In that case, the assessee was in receipt of surrender value of Life Insurance Policies and finally after certain deductions, the balance value of the investment was received in the account of the assessee's father who was assigned the said policies and thereafter, the amount received in assessee's account in India and though it :-30-: BMA. Nos:7 to 11/Chny/2024 was refund of investment made in life insurance policy but still the same is offered to tax in the income tax return for AY 2019-20 and tax of Rs.39,00,000/- was paid by the assessee. Under the facts and circumstances of that case, the Hon’ble ITAT held that since the value of the alleged investments received by the assessee in India has already been subjected to Income tax, taxing the same amount under the Black Money Act, 2015 will be tantamount to double taxation. 15.5 The ld.DR submitted that the above decision is not applicable to the facts of the present case, since the assessee has neither disclosed the foreign assets before the commencement of the Black Money Act nor accepted the assessability of such foreign assets under the Income Tax Act. 15.6 Further, the decision of the Hon’ble ITAT, Mumbai which was referred by the Assessee’s counsel in his Paper Book dated 28.01.2025 Pg 72-234 in the case of Shri Yashovardhan Birla Vs.CIT(A) vide BMA No.01/Mum/2021 is distinguishable on facts and is not relevant to the present case. Since the issue in the said case involves Judicial Defect in issuing Notice by the AO under BM Act on the basis of :-31-: BMA. Nos:7 to 11/Chny/2024 i. Ld. CIT(A) without actually examining the original documents on the basis of which AO has issued the notice, disposed the Assessee’s challenge to jurisdictional issue based upon the final assessment order.(para 37) ii. Also, the assets & bank accounts in question were already the subject matter to the Wealth Tax Assessment Proceedings.(para 38) iii. Hon’ble Tribunal in wealth tax proceedings held that Assessee was not a “Substantial Owner” of the Impugned assets since assessee was nominated as one of several beneficiaries of an offshore irrevocable discretionary trust.(para 39) iv. Various Materials which have been referred by Ld CIT(A) in his order rejecting the Jurisdictional Challenge have not been confronted to the assessee.(para 45) v. Names of certain Bank accounts and Form-A obtained from banks for establishment of beneficial owners identity under Swiss Anti Money Laundering Act had distinct purposes. Also Swiss Federal Tax Administration, vide its letter dated 30.06.2015 states that it does not have application for matters of taxation.(para 46) vi. Issue of Notice is premature since assessee has still time to file income tax return. (para 47). The above findings of Hon’ble Mumbai Tribunal do not match with the facts of the present case since the findings of AO of this present case is as under: i. As per the Sworn Statement u/s.132(4) recorded on 13/07/2016 vide Answer to the Q.No.7, Appellant accepted that the two Apartments situated at Singapore owned by herself. (para 7.1) ii. Bank Statements, Sale Deed, Sanction letter for housing Loan & Unregistered Deed of Trust were obtained from FTTR (Foreign Tax & Tax Research Division) through CBDT.(para 7.2) iii. Properties purchased in the name of the “Assessee” only not in the name of the “Trust” iv. Appellant obtained “Housing Loan” in the name of “Elangovan Malarmangai @ Swetha only and not in the name of Trust.(para 7.4) :-32-: BMA. Nos:7 to 11/Chny/2024 v. Repayment of Principal along with interest on Housing loan was made by the assessee through her foreign savings bank account with OCBC Limited, Singapore.(para 7.5) vi. Deed of the Trust was not at all registered with the Government of Singapore. Further, nowhere it is mentioned in the unregistered Trust deed that the property is bound to be registered in the name of her children upon attaining the age of majority. Further, it is noticed that the property is registered on 18.05.2012 and simultaneously, the trust also created through un-registered trust deed. Further it is found that no one witnessed the Trust deed.(para 7.6) 15.7 Therefore, the ld.DR prayed that the order of the ld.CIT(A) holding that the undisclosed foreign assets are correctly assessable for the AY 2017-18 and holding that the provisions of Section 5 of the Black Money Act which allows deduction for income already assessed under Income Tax Act, are not applicable in this case, may be sustained. 16. Ground no.8, 9, 10: “Ownership” of Undisclosed Foreign Asset lies with the “Trust” created by assessee’s Uncle Mr.Krishnan Apaoo: In this regard, AO has observed the following: i. As per the Sworn Statement u/s 132(4) recorded on 13/07/2016 vide Answer to the Q.No 7, Appellant accepted that the two Apartments situated at Singapore owned by herself. (para 7.1) ii. Bank Statements, Sale Deed, Sanction letter for housing Loan & Unregistered Deed of Trust were obtained from FTTR (Foreign Tax & Tax Research Division) through CBDT.(para 7.2) iii. Properties purchased in the name of the “Assessee” only not in the name of the “Trust” iv. Appellant obtained “Housing Loan” in the name of “Elangovan Malarmangai @ Swetha only and not in the name of Trust.(para 7.4) :-33-: BMA. Nos:7 to 11/Chny/2024 v. Repayment of Principal along with interest on Housing loan was made by the assessee through her foreign savings bank account with OCBC Limited, Singapore.(para 7.5) vi. Deed of the Trust was not at all registered with the Government of Singapore. Further, nowhere it is mentioned in the unregistered Trust deed that the property is bound to be registered in the name of her children upon attaining the age of majority. Further, it is noticed that the property is registered on 18.05.2012 and simultaneously, the trust also created through un-registered trust deed. Further it is found that no one witnessed the Trust deed.(para 7.6) Therefore, it is prayed that the order of the CIT(A) may be sustained. 17. Ground no.11: Cash Deposits in OCBC Savings Bank a/c, Singapore: The ld.DR submitted that the assessee undertook to explain the nature of cash deposits in the said bank account by 23.02.2022. However, she could not furnish the nature of cash deposits in the bank accounts till 28.11.2024. Hence, the AO treated the same as undisclosed foreign income. The Ld.CIT(A) further held that, if the taxpayer is unable to offer a plausible explanation or produce evidence supporting the source of the deposits, the Assessing Officer is justified in treating the amount as unexplained income. The onus of explaining the source of the deposit rests with the assessee, and since no explanation was provided either during the assessment or at the appellant stage, the addition of the :-34-: BMA. Nos:7 to 11/Chny/2024 unexplained cash deposit as unexplained is justified. Therefore, the Ld.DR prayed that Ground No.11 has no merit and hence to be dismissed. 18. We have heard the rival contentions perused the material available on record and gone through the orders along with various judicial precedents relied on and the paper books submitted. The search and seizure operations were carried out u/s.132 of the Act was carried out on 13.07.2016 at assessee’s residential property and as alleged by the AO that evidence pertaining to the undisclosed foreign investments in Singapore were identified i.e. two immovable properties (Apartments) in Singapore located at #06-02 and #09-02 at 93, Meyer Road, The Meyerise, Singapore- 437986 from M/s.Hong Leong Holding Limited and the bank accounts. The same was not disclosed in the return of income filed during the post search proceedings for A.Y.2011-12 to A.Y.2015-16 filed on 20.12.2018, A.Y.2016-17 & A.Y.2017-18 filed on 31.03.2018. Admittedly the assessee had not filed any disclosure of foreign assets or income during the period announced for compliance from 01.06.2015 to 30.09.2015 under the provisions of the Black Money (Undisclosed Foreign Income and Assets) and :-35-: BMA. Nos:7 to 11/Chny/2024 Imposition Act, 2015. Further, based on the information received from Investigation wing, Chennai, proceedings under BM Act were initiated by issuing notice u/s.10(1) of the BM Act dated 21.03.2020 by providing an opportunity to produce evidence in support of her “undisclosed assets located outside India” and income derived therefrom according to the provisions of the BM Act and relevance Rules framed by CBDT in this regard. Further, the AO issued show cause notice dated 08.03.2022 to the assessee and asked to furnish the following information / documents: i) Full details of total consideration paid for acquiring the above said properties ii) Details of immediate sources of funds for the investor iii) Copies of all bank statements reflecting the remittances made towards the purchase of the property, including bank account of the offshore entity. iv) A statement of all assets held by you either in your name or where you hold beneficial both in India and abroad, including dates of acquisition v) Details of lease rents received, if any, and the mode of receipts of such rentals with documentary evidences on the above said property. In response the assessee submitted and stated that “she is neither the owner nor beneficial owner of the above properties located in Singapore. The assessee’s uncle Mr.Krishnan Appaoo, a Malasian national and resident of Singapore, out of love and affection towards the assessee’s minor children, created a trust and made assessee a trustee in respect of two apartments that were booked by him in :-36-: BMA. Nos:7 to 11/Chny/2024 Singapore. As per the trust deed, the property is bound to be registered in the name of her children upon attaining the age of a majority. Since the foreign assets belong to the trust of which the assessee was a trustee, the same cannot per se be construed as property owned by the assessee”. 18.1 We note that the AO as per the “Article 28 – Exchange of Information” of Agreement between the Government of the Republic of Singapore and the Government of the Republic India for the Avoidance of Double Taxation and the prevention of Fiscal Evasion with respect to taxes on Income, the Ministry of Finance, Foreign Tax & Tax Research (FTTR) Division, obtained information of the assessee on 24.08.2017 from Inland Revenue Authority of Singapore as detailed below: “According to the notice of Transfer submitted by the Seller’s lawyer, the dates of contract of sale (i.e. Sale & Purchase Agreement signed) for these properties were 18.05.2012 (for #06-02) and 13.04.2012 (for #09- 02) owned by Mr.Elangovan Malarmangi – Passport No.Z1762668.” 18.2 However, on 19.03.2018, the Inland Revenue Authority of Singapore have stated that Mrs.EM is not the owner of the pickering street property and the meyer road property (#06-02). :-37-: BMA. Nos:7 to 11/Chny/2024 18.3 Further, on 26.03.2018, the Inland Revenue Authority of Singapore have confirmed that apart from the above said meyer road property (#06-02), Mrs.EM is also not the registered owner of meyer road property (#09-02). It is also confirmed that Mr.Appaoo is not the registered owner of the two properties at Meyer road. 18.4 Again on 21.08.2019, the Inland Revenue Authority of Singapore have confirmed the following to the ministry of finance, Govt. Of India. - The reference details provided to obtain information on Trust deed could not be located. - The copies of the purchase agreements and bank financing records of the two properties at Meyer Road, Singapore were provided on 08.05.2019. - The income reported by Mr.Appaoo for the assessment years 2013 to 2016 and he died on 04.12.2016 - The above two properties are not rented out during the period of tax investigation i.e. January 2010 to December 2016 18.5 Further on 28.01.2020, the Inland Revenue Authority of Singapore have confirmed the following to the ministry of finance, Govt. Of India. - As confirmed by the Advocate/solicitors M/s.TITO, Mrs.EM was their client and they had acted for Mrs.EM in relation to purchase of two property units (#06-02) & (#09-02), meyer road, Singapore. - TITO is not aware of any trust that was set up in respect of the meyer road properties, Singapore. - TITO also confirmed that they did not have any information pertaining to the trust with the registration No.N2017/0313. - The details of property taxes that were imposed on these two properties for the years 2014 to 2017. :-38-: BMA. Nos:7 to 11/Chny/2024 - The Account No.593117062001 that is held in the name of Mrs.EM was not opened during the period of your request (i.e.financial years 2010-2011 to 2016-17) 18.6 On perusal of the above details, we find that the information received from the FTTR, Singapore to Ministry of Finance, India in respect of the properties, bank accounts of Smt.EM, formation of trust and about Mr.Krishnan Appaoo are not consistent. 18.7 The assessee raised the legal issue that the assessment has been completed on undisclosed asset by making addition in the Assessment year 2017-18, which is not valid in the eyes of law as per the facts of the case. We note that the assessee had been subjected to assessment proceedings u/s.10(3) of the BM Act for the subject AY 2017-18, that were initiated vide notice dated 21.03.2020 issued u/s.10(1) of the BM Act, as recorded by the AO vide para 2.3 of the Assessment Order passed in this regard. 18.8 The provision of the Charging section (Section 3 of the BM Act), is reproduced here below: “3. Charge of tax.—(1) There shall be charged on every assessee for every assessment year commencing on or after the 1st day of April, 2016, subject to the provisions of this Act, a tax in respect of his total undisclosed foreign income and asset of the previous year at the rate of thirty per cent. of such undisclosed income and asset: :-39-: BMA. Nos:7 to 11/Chny/2024 Provided that an undisclosed asset located outside India shall be charged to tax on its value in the previous year in which such asset comes to the notice of the Assessing Officer……” (emphasis supplied) 18.9 Further, the provisions of Sections 72 & 81 of the BM Act on ‘Removal of doubts’ & ‘Assessment not to be invalid on certain grounds’ respectively that reads as under: “72. Removal of doubts.— For the removal of doubts, it is hereby declared that— (a) save as otherwise expressly provided in the Explanation to sub-section (1) of section 69, nothing contained in this Chapter shall be construed as conferring any benefit, concession or immunity on any person other than the person making the declaration under this Chapter; (b) where any declaration has been made under section 59 but no tax and penalty has been paid within the time specified under section 60 and section 61, the value of such asset shall be chargeable to tax under this Act in the previous year in which such declaration is made; (c) where any asset has been acquired or made prior to commencement of this Act, and no declaration in respect of such asset is made under this Chapter, such asset shall be deemed to have been acquired or made in the year in which a notice under section 10 is issued by the Assessing Officer and the provisions of this Act shall apply accordingly.” (emphasis supplied) “81. Assessment not to be invalid on certain grounds.— No assessment, notice, summons or other proceedings, made or issued or taken or purported to have been made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such assessment, notice, summons or other proceeding if such assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.” :-40-: BMA. Nos:7 to 11/Chny/2024 18.10 Now, on conjoint reading of the above sections with the present facts of the case, we find that there is no specific information as to when such asset came to the notice of the AO as required u/s.3 of the BM Act. Therefore, the date of issue of notice u/s.10(1) of the BM Act ought to be considered as the ‘relevant date’ for this purpose. The conjoint reading of the provisions of Section 3 of the BM Act and the facts of the case are given below: - The notice u/s.10(1) of the BM Act had been issued on 21.03.2020 - Wherein the two properties at Singapore and the savings bank account No.647746619001 held with OCBC Bank, Singapore have been mentioned in the notice of the AO (i.e.) - Hence, the applicable F.Y. for the assessment will be 2019-20 i.e. A.Y.2020-21. - However, the assessment proceedings had been initiated u/s.10 of the BM Act for the A.Y.2017-18 through such notice issued on 21.03.2020 u/s.10(1) of the BM Act 18.11 Further, we observed that invoking of such assessment u/s.10 of the BM Act for the subject A.Y.2017-18 cannot be construed as a ‘mistake, defect or omission in such assessment’ as laid down u/s.81 of the BM Act to make it valid for the simple reason that such assessment is, in substance and effect, not in conformity with or according to the intent and purpose of the BM Act as laid down there under. :-41-: BMA. Nos:7 to 11/Chny/2024 18.12 Further, the combined reading of Section 3 (Charging section), Section 10 (Assessment) and 72(c) (Removal of doubts) of the BM Act would mean that tax will be levied in the year in which the AO issues a notice to the assessee u/s.10(1) of the BM Act (irrespective of the year in which such income was earned or offshore asset was acquired). 18.13 Therefore, in the present facts of the case, the year of assessment should have been the A.Y.2020-21. Hence, in our considered view the assessment proceedings u/s.10 of the BM Act for the subject A.Y.2017-18 is bad in law. 18.14 Our above view is supported by the following decisions of the Hon’ble Courts: a) Principal Commissioner of Income Tax, Central v. Income Tax Settlement Commission [2019] 111 taxmann.com 176 (Gujarat), wherein their lordship has observed in Para 14 of the Order as below: “14. Thus, while in case of undisclosed foreign income of an assessee, the same would be subject to tax under the provisions of the Black Money Act only for every assessment year commencing on or after the 1st day of April 2016, namely assessment year 2016-17 onwards, insofar as undisclosed foreign asset located outside India is concerned, the previous year in which such asset is acquired is not relevant. In otherwords an undisclosed foreign asset would be subject to tax under the Black Money Act notwithstanding the date of its acquisition, which may even be a previous year prior to the :-42-: BMA. Nos:7 to 11/Chny/2024 assessment year commencing on 1st April 2016; and shall be charged to tax under this provision on the value of such asset in the previous year in which such asset comes to the notice of the Assessing Officer.” (emphasis supplied). b) The Mumbai ITAT in the case of Anandi Kaushik Laijawala [TS-111-ITAT-2025(Mum)] dated 17.02.2025 wherein it had been held that the ‘assessment year’ for assessing the said foreign assets would have to be determined based on the date of the notice issued u/s.10(1); Outlines proviso to Section 3(1) of BMA that states the undisclosed asset located outside India shall be chargeable to tax on “its value in the previous year in which the asset comes to the notice of the AO”; Further, the Tribunal has observed the provisions of the Act, wherein the proviso to Section 3(1) and Section 72 in respect of assets acquired prior to the commencement of Act and which has not been declared u/s.59 of the BM Act. The relevant extracts are given below: “6. In the instant cases, the impugned foreign assets have been acquired by both the assessees prior to the commencement of the BMIT Act and further they have also not filed any declaration u/s 59 of the Act voluntarily. Hence the deeming provisions mentioned in sec.72(c) of BMIT Act shall apply to the facts of the present cases. Accordingly, the “assessment year” for assessing those foreign assets would have to be determined on the basis of date of notice issued by the AO u/s.10(1) of the Act. We noticed earlier that the proviso to sec.3(1) of the BMIT Act stated that the undisclosed asset located outside India shall be charged to tax on “its value in the previous year in which asset comes to the notice of the Assessing officer”. A interplay between the proviso to sec.3(1) and sec. 72(c) in respect of assets acquired or made prior to the commencement of Act and which has also not been declared u/s 59 of the Act, may be explained as under:- (c) the determination of value of the undisclosed asset located outside India is one thing and assessing the said value under BMIT Act is another thing. (d) While the value of the undisclosed asset will be determined on the basis of its value prevailing in the previous year in which such asset comes to the notice of :-43-: BMA. Nos:7 to 11/Chny/2024 the assessing officer, the same will be assessed in the hands of the assessee only in the assessment year, which is determined in terms of sec.72(c) of the Act.” ……………… “10.1. We notice that the notice dated 27-04-2018 is issued for AY 2018-19 and the same is contrary to the provisions of sec.72(c) of the BMIT Act. We noticed that section 72(c) is a deeming provision as per which the undisclosed assets are deemed to have been acquired during the previous year in which such notice is issued. Since the second notice is issued on 27-04-2019, the impugned undisclosed assets are deemed to have been acquired during the previous year 2018-19 and accordingly they have to be assessed in assessment year AY 2019- 20 only. Hence the AO could not have passed the assessment order for AY 2018- 19 on the strength of notice dated 27-04-2018. Accordingly, the said notice would not also validate the assessment order passed for AY 2018-19. 11. We noticed that the AO has also issued two more notices u/s 10(1) of the Act, viz., on 10-07-2018 and 09-11-2018. On the strength of those notices, the AO could have framed assessment order for AY 2019-20 only in view of the deeming fiction enshrined in sec.72(c) of the Act and not for AY 2018-19. 12. The foregoing discussions would show that the assessing officer did not acquire jurisdiction in accordance with law for assessing the undisclosed assets and income in Assessment year 2018-19 by issuing a valid notice. In the absence of a valid notice issued for the impugned assessment year, we have to quash the orders passed by the tax authorities in the hands of both the assessees herein. We order accordingly.” (emphasis supplied) 18.15 Further, we are not in agreement with ld.CIT(A) observation of applicability of A.Y. 2017-18 to the assessee as the search proceedings took place on 13.07.2016, since, the provisions of Section 72(c) of the BM Act has clearly stated that where any asset has been acquired or made prior to commencement of this Act, and no declaration in respect of such asset is made under this Chapter, such asset shall be deemed to :-44-: BMA. Nos:7 to 11/Chny/2024 have been acquired or made in the year in which a notice under section 10 is issued by the AO which squarely covers the assessee’s facts of the case. Therefore, the assessment made u/s.10(3) of the BM Act for the A.Y. 2017-18 is quashed as null and void since the same is bad in law. 19. Another legal issue raised by the assessee is that the Assessment Order passed u/s.10(3) of the BM Act, wherein the sum of Rs.17,13,73,680/- that had been brought to tax towards ‘undisclosed foreign asset’ that is equivalent to SGD 35,23,380 pertains to the margin money paid by Shri Krishnan Appaoo, the assessee’s Uncle and the Settlor of the subject Trust, with respect to the two properties at Singapore under dispute has already been subjected to assessment proceedings under the Income Tax Act for the A.Ys. 2011-12 & 2012-13 u/s.143(3) r.w.s.153C of the Income Tax Act, that was completed vide Orders dated 31.12.2018, wherein Rs.1,15,00,000/- and Rs.7,99,00,000/- (i.e.) the then INR equivalent to SGD brought to tax later under the BM Act, was added u/s.69 of the Income Tax Act as ‘unexplained investment’ towards receipt of margin money from Shri Krishnan Appaoo during the A.Y.s 2011-12 & 2012-13 respectively in connection with the properties at Singapore in dispute under the BM Act. We find that :-45-: BMA. Nos:7 to 11/Chny/2024 the additions under the Income Tax Act for the A.Y.s 2011-12 & 2012-13 were made based on receipt of margin money during the relevant previous year from Shri Krishnan Appaoo, the additions under the BM Act towards the same margin money had been made based on valuation of the properties in Singapore including that of applicable stamp duty less the bank loan obtained from OCBC Bank Limited, Singapore in this regard. In other words, where the sum brought to tax under both the Income Tax Act and the BM Act pertained to the margin money received with respect to the subject properties at Singapore, the difference in the amounts involved arise from the difference in the basis of valuation as stated above. 19.1 It is relevant to take note of the provisions of Section 4(3) & 5 of the BM Act, at this point; “4(3) The income included in the total undisclosed foreign income and asset under this Act shall not form part of the total income under the Income-tax Act.” “5. (1) In computing the total undisclosed foreign income and asset of any previous year of an assessee,— (i) no deduction in respect of any expenditure or allowance or set off of any loss shall be allowed to the assessee, whether or not it is allowable in accordance with the provisions of the Income-tax Act; (ii) any income,— (a) which has been assessed to tax for any assessment year under the Income-tax Act prior to the assessment year to which this Act applies; or :-46-: BMA. Nos:7 to 11/Chny/2024 (b) which is assessable or has been assessed to tax for any assessment year under this Act, shall be reduced from the value of the undisclosed asset located outside India, if, the assessee furnishes evidence to the satisfaction of the Assessing Officer that the asset has been acquired from the income which has been assessed or is assessable, as the case may be, to tax. (2) The amount of deduction referred to in clause (ii) of sub-section (1) in case of an immovable property shall be the amount which bears to the value of the asset as on the first day of the financial year in which it comes to the notice of the Assessing Officer, the same proportion as the assessable or assessed foreign income bears to the total cost of the asset.” (emphasis supplied) Therefore, an addition to taxable income had already been made under the Income Tax Act, such sum cannot be brought to tax again under the BM Act. Hence, in our considered view, an addition had already been made under the Income Tax Act towards such ‘undisclosed investment’, and also addition under BM Act had been made as ‘undisclosed foreign asset’ relating to the same issue, which is unsustainable in law. 19.2 Our above view is supported by the following judicial decisions:  ITAT Kolkata Bench 'B' in the case of Sri Srinjoy Bose v. A.D.I.T. (Inv.) [2023] 150 taxmann.com 273 (Kolkata - Trib.) wherein it had been held that where the value of the alleged investments received by the assessee in India has already been subjected to Income-tax and taxing the same amount under the Black Money Act, 2015 will tantamount to double taxation.[Para 15] :-47-: BMA. Nos:7 to 11/Chny/2024  ITAT, Mumbai in the case of Yashovardhan Birla v. CIT (A)-51, [BMA No. 01 (Mum.) of 2021, dated 3-9-2021] wherein it had been held that : ”The bar in the BM is inbuilt in as much as it has been provided that assets out of income assessed to income tax shall be excluded from the purview of undisclosed asset in BM Act. Hence, it is abundantly clear that as per the scheme of the act, there cannot be a simultaneously proceedings on the same asset/income under Income-tax Act, 1961 as well as BM Act. The doctrine of double prejudice does come into play here.” [Para 47] 19.3 Therefore, we are of the firm view that the AO as well as ld.CIT(A) have erred that the sum in dispute being already taxed under the Income Tax Act by again taxing under the BM Act and hence we set aside the order of the Ld.CIT(A) and delete the addition made of Rs.17,13,73,680/- towards ‘undisclosed foreign asset’ for the A.Y. 2017-18. Since, the disputed issue has been decided on the legal grounds raised by the assessee, we are not adjudicating the grounds raised on the merits and kept open. 20. In the result, the appeal filed by the assessee in BMA No:8/CHNY/2024 for the A.Y. 2017-18 is allowed. BMA No: 7/CHNY/2024 FOR THE A.Y. 2016-17: 21. The assessee raised the following grounds of appeal: :-48-: BMA. Nos:7 to 11/Chny/2024 1. For that the Order of the Learned Commissioner of Income Tax (Appeals)- 18, Chennai is contrary to law, facts and circumstances of the case. 2. For that the Learned Commissioner of Income Tax (Appeals)-1 8, Chennai erred in passing the impugned Order u/s 16 in lieu of the applicable Section 15(5) of the BM Act. 3. For that the Learned Commissioner of Income Tax (Appeals)-18, Chennai erred in confirming the levy of penalty u/s 42 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 Act (\"BM Act') amounting to Rs.10,00,000/-. 4. For that the Learned Commissioner of Income Tax (Appeals)-18, Chennai erred in confirming the levy of penalty u/s 42 of the BM Act amounting to Rs. 10,00,000/- for on-disclosure of the alleged foreign asset and foreign Savings Bank account held, without appreciating the fact that the appellant does not hold any foreign investment/beneficial ownership nor earns any income from foreign investments to attract the penal provisions. 5. For that the Learned Commissioner of Income Tax (Appeals)-1 8, Chennai failed to appreciate the fact that the alleged properties in Singapore (located at #06-02 and # 09-02 at 93, Meyer Road, The Meyerise, Singapore -437986) were not owned by the appellant but were merely held in fiduciary capacity as Trustee' while her children were the beneficiaries of the subject properties held under the Trust that was purchased by her uncle Shri Krishnan Appaoo through his funds. For these grounds and such other grounds that may be adduced before or during the hearing of the appeal, it is prayed that the Hon'ble Tribunal may be pleased to delete the penalty levied u/s 42 of the BM Act and/or provide such other relief as this Hon'ble Tribunal deems fit. 22. The ld.AR for the assessee submitted that the levy of the penalty is not warranted for the A.Y. 2016-17, as the ld.CIT(A) has confirmed the addition only in the A.Y. 2017-18 by deleting the addition made by the AO for the A.Y. 2016-17. :-49-: BMA. Nos:7 to 11/Chny/2024 23. Per contra the ld.DR submitted that the assessee has failed to file the return of income along with the details of foreign investments / assets held at Singapore and hence prayed for confirming the penalty levied u/s.42 of the BM Act. 24. We have heard the rival contentions and gone through the orders of the authorities along with the provisions of the BM Act. The penalty for failure to furnish the return in relation to foreign income and investments u/s.42 of the BM Act has been levied by the AO and the same has been confirmed by the ld.CIT (A). The section 42 of BM Act is reads as follows : Penalty for failure to furnish return in relation to foreign income and asset. 42. If a person, being a resident other than not ordinarily resident in India within the meaning of clause (6) of section 6 of the Income-tax Act, who is required to furnish a return of his income for any previous year, as required under sub-section (1) of section 139 of the Income-tax Act or by the provisos to that sub-section, and who at any time during such previous year,— (i) held any asset (including financial interest in any entity) located outside India as a beneficial owner or otherwise; or (ii) was a beneficiary of any asset (including financial interest in any entity) located outside India; or (iii) had any income from a source located outside India, and fails to furnish such return before the end of the relevant assessment year, the Assessing Officer may direct that such person shall pay, by way of penalty, a sum of ten lakh rupees: [Provided that this section shall not apply in respect of an asset or assets (other than immovable property) where the aggregate value of such asset or assets does not exceed twenty lakh rupees.] :-50-: BMA. Nos:7 to 11/Chny/2024 Explanation:- For determining the value equivalent in rupees of the balance in an account maintained in foreign currency, the rate of exchange for calculation of the value in rupees shall be the telegraphic transfer buying rate of such currency as on the date for which the value is to be determined as adopted by the State Bank of India constituted under the State Bank of India Act, 1955. Admittedly, the assessee has not furnished the return of income for the A.Y. 2016-17 and consequently the details of the foreign investments and income have not been declared. We find that the ld.CIT (A) has already deleted the additions made by the AO on account of foreign assets and income held by the assessee. Though we have already adjudicated the quantum appeal for the A.Y.2017- 18 in appeal No .BMA No. 08/Chny/2024 (supra) by allowing the appeal in favour of the assessee on legal ground, it is the fact that the assessee neither filed the declaration during the time provided from 01.06.2015 to 30.09.2015 nor filed the return of income within time limit provided u/s.139(1) of the Income Tax Act for the A.Y. 2016-17, by disclosing her investment in the immovable properties in Singapore and her saving bank account at Singapore. Therefore, we do not find any reason to interfere in the order passed in respect of levying penalty u/s.42 of the BM Act, which has been confirmed by the ld.CIT(A). Hence, we confirm the order of penalty levied of Rs.10.00 Lakhs u/s.42 of BM Act, upheld by ld.CIT(A) by dismissing the appeal of the assessee. :-51-: BMA. Nos:7 to 11/Chny/2024 25. In the result, the appeal filed by the assessee in BMA No: 07/CHNY/2024 for the A.Y. 2017-18 is dismissed. BMA No: 9/CHNY/2024 FOR THE A.Y. 2017-18: 26. In this appeal, the assessee raised the sole ground of confirming the levy of interest u/s.40(1) and 40(2) of the BM Act by the ld.CIT(A) to the tune of Rs.48,25,977/- and Rs.3,84,25,944/- respectively. 27. The provisions of Section 40 of the Act reads as follows: Interest for default in furnishing return and payment or deferment of advance tax. 40. (1) Where the assessee has any income from a source outside India which has not been disclosed in the return of income furnished under sub-section (1) of section 139 of the Income-tax Act or the return of income has not been furnished under the said sub-section, interest shall be chargeable in accordance with the provisions of section 234A of the Income-tax Act. (2) Where the assessee has any undisclosed income from a source outside India and the advance tax on such income has not been paid in accordance with Part C of Chapter XVII of the Income-tax Act, interest shall be chargeable in accordance with the provisions of sections 234B and 234C of the Income-tax Act. Since, we have already adjudicated the quantum appeal for the A.Y. 2017-18 in appeal No.BMA – 08/Chny/2024 (supra) by allowing the appeal in favour of the assessee and deleted the additions, therefore the interest levied becomes infructuous. Therefore, we :-52-: BMA. Nos:7 to 11/Chny/2024 direct the AO to delete the same by allowing the appeal of the assessee. 28. In the result, the appeal filed by the assessee in BMA No: 9/CHNY/2024 for the A.Y. 2017-18 is allowed. BMA No: 10/CHNY/2024 FOR THE A.Y. 2017-18: 29. The assessee raised the following grounds of appeal: 1. For that the Order of the Learned Commissioner of Income Tax (Appeals)-18, Chennai is contrary to law, facts and circumstances of the case. 2. For that the Learned Commissioner of Income Tax (Appeals)-18, Chennai erred in upholding the assessment made under section 10(3) of the Black Money (Undisclosed Foreign Income Asset) and Imposition of Tax Act, 2015 (\"the BM Act\") that is bad in law whereby the consequent confirmation of levy of penalty u/s 41 of the BM Act has no legs to stand. 3. For that the Learned Commissioner of Income Tax (Appeals)-18, Chennai erred in passing the impugned Order u/s 16 in lieu of the applicable Section 15(5) of the BM Act. Without prejudice to the above 4. For that the Learned Commissioner of Income Tax (Appeals)-1 8, Chennai erred in confirming the levy of penalty u/s 41 of the BM Act amounting to Rs.18,09,74,151/-. 5. For that the Learned Commissioner of Income Tax (Appeals)-18, Chennai erred in confirming the levy of penalty u/s 41 of the BM Act amounting to Rs. 15,42,36,316/- respectively, consequent to the substantive addition upheld of Rs. 17,13,73,680/- towards 'undisclosed foreign asset' under the BM Act towards the properties at Singapore, rejecting the claim that the same had already been assessed to tax as 'unexplained investments' u/s69 of the Income Tax Act in AYs 2011-12 & 2012-13 vide Assessment Orders :-53-: BMA. Nos:7 to 11/Chny/2024 dated 31.12.2018 passed u/s 143(3) rw.s. 153C of the Income Tax Act, without appreciating the applicable provisions of Section 4(3) of the BM Act that reads as \" The income included in the total undisclosed foreign income and asset under this Act shall not form part of the total income under the Income-tax Act.\" 6. For that the Learned Commissioner of Income Tax (Appeals)-1 8, Chennai erred in confirming the levy of penalty u/s 41 of the BM Act amounting to Rs. 1542,36,316/- respectively, consequent to confirming the 'protective' addition of Rs. 17,13,73,680/- made towards 'undisclosed foreign asset as 'substantive' addition for the AY 2017-18. 7. For that the Learned Commissioner of Income Tax (Appeals)-18, Chennai erred in confirming the levy of penalty u/s 41 of the BM Act amounting to Rs. 2,67,37,835/- respectively consequent to the addition confirmed of Rs. 2,97,08,710/- on account of undisclosed foreign Income made based on bank statement showing such cash deposits without considering the facts and the circumstances of the case and without any corroborative evidences being brought on record. For these grounds and such other grounds that may be adduced before or during the hearing of the appeal, it is prayed that the Hon'ble Tribunal may be pleased to delete the penalty levied u/s 41 of the BM Act and/or provide such other relief as this Hon'ble Tribunal deems fit. 30. The ld.AR for the assessee submitted that the levy of the penalty is not warranted for the A.Y. 2017-18, since the alleged “undisclosed foreign asset’ under the BM Act has already been assessed to tax as “unexplained investments” u/s.69 of the Income tax Act in the A.Y.2011-12 & 2012-13 vide assessment order u/s.143(3) r.w.s. 153C dated 31.12.2018, without appreciating the applicable provisions of Section 4(3) of the BM Act that reads as :-54-: BMA. Nos:7 to 11/Chny/2024 “The Income included in the total undisclosed foreign income and asset under this Act shall not form part of the total income under the Income Tax Act”. Hence prayed for deleting the penalty levied by the AO and confirmed by the ld.CIT(A). 31. Per contra the ld.DR supported the order of the lower authorities for levying penalty u/s.41 of the Act. 32. We have already adjudicated the quantum appeal for the A.Y. 2017-18 in appeal No.BMA No. 08/CHNY/2024 (supra) by allowing the appeal in favour of the assessee by deleting the additions on legal grounds and hence the present appeal in respect of levying penalty u/s.41 becomes infructuous. Therefore, we direct the AO to delete the penalty by allowing the appeal of the assessee. 33. In the result, the appeal filed by the assessee in BMA No: 10/CHNY/2024 for the A.Y. 2017-18 is allowed. BMA No: 11/CHNY/2024 FOR THE A.Y. 2017-18: 34. In this appeal, the assessee raised the sole ground of confirming the levy of penalty u/s.43 of the BM Act by the ld.CIT(A) to the tune of Rs.10,00,000/-. :-55-: BMA. Nos:7 to 11/Chny/2024 35. We have already adjudicated the appeal No.BMA No. 07/CHNY/2024 by confirming levying of penalty u/s.42 of the BM Act for the A.Y. 2016-17(supra) and dismissed the appeal of the assessee. Since the facts are identical in the present appeal, the decision of the appeal No. BMA No. 07/Chny/2024 is mutatis mutandis applicable for the A.Y.2017-18 in appeal No. BMA No. 11/Chny/2024 and hence, we dismiss the appeal of the assessee. 36. In the result, the appeal filed by the assessee in BMA No. 11/CHNY/2024 for the A.Y. 2017-18 is dismissed. 37. To sum up, the appeals filed by the assessee in BMA Nos.7 & 11/CHNY/2024 are dismissed and BMA Nos.8,9 & 10/CHNY/2024 are allowed. Order pronounced in the open court on 30th April, 2025 at Chennai. Sd/- Sd/- (जॉजŊ जॉजŊ क े) (GEORGE GEORGE K) उपाȯƗ /VICE PRESIDENT (एस. आर.रघुनाथा) (S. R. RAGHUNATHA) लेखा सद˟/ACCOUNTANT MEMBER चे᳖ई/Chennai, ᳰदनांक/Dated, the 30th April, 2025 RSR :-56-: BMA. Nos:7 to 11/Chny/2024 आदेश की Ůितिलिप अŤेिषत/Copy to: 1. अपीलाथŎ/Appellant 2. ŮȑथŎ/Respondent 3.आयकर आयुƅ/CIT – Chennai 4. िवभागीय Ůितिनिध/DR 5. गाडŊ फाईल/GF "