Case Law Details
ACIT Vs Vijay Kumar Agarwal (ITAT Kolkata)
The ld. counsel for the assessee before us has raised a preliminary issue that the penalty proceedings having been initiated by the Assessing Officer against a dead person, initiation itself was bad-in-law and the penalty imposed under section 271AAB is not sustainable. He has pointed out that the notice initiating penalty proceedings under section 271AAB was issued by the Assessing Officer on 13.10.2015 in the name of the assessee, who had already expired on 29.04.2015. He has filed a copy of the relevant death certificate and contended that the penalty notice thus was issued by the Assessing Officer in the name of a dead person, which is not enforceable in law. Since this contention of the ld. Counsel for the assessee is duly supported by the decision of the Hon’ble Madras High Court in the case of Alamelu Veerappan –vs.- ITO (2018) 95 com 155 (Madras), we accept the same and hold that the penalty proceedings initiated by the Assessing Officer against a dead person was not enforceable in law and the penalty imposed under section 271AAB in pursuance of such invalid initiation is not sustainable.
FULL TEXT OF THE ITAT JUDGEMENT
This appeal is preferred by the Revenue against the order of ld. Commissioner of Income Tax (Appeals)-20, Kolkata dated 11.04.2017, whereby he restricted the penalty imposed by the Assessing Officer under section 271AAB of the Income Tax Act, 1961 in respect of the undisclosed income of Rs.3,95,58,272/- only to the extent to which it was in respect of the undisclosed income of Rs.17,58,272/-.
2. The assessee in the present case is an individual. A search and seizure action was conducted at the residence of the assessee on 13.02.2013 as well as on subsequent dates. During the course of the said action, the assessee surrendered his undisclosed income to the extent of Rs.3,95,58,272/- in the statement recorded under section 132(4) of the Act. Thereafter the return of income for the year under consideration was filed by the assessee on 10.02.2014 declaring total income of Rs.3,88,57,160/-. In the assessment completed under section 143(3) vide an order dated 13.10.2015, the entire income of Rs.3,95,58,272/-surrendered by the assessee during the course of search was brought to tax by the Assessing Officer as undisclosed income of the assessee. Penalty proceedings under section 271AAB were also initiated by the Assessing Officer and since the explanation offered by the assessee in response to the show-cause notice issued during the course of the said proceedings was not found satisfactory by him, the Assessing Officer imposed penalty under section 271AAB of the Act at the rate of 30% of the undisclosed income admitted and surrendered under section 132(4) of the Act.
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