Case Law Details
ACIT Vs Clean Coal Enterprises Pvt. Limited (ITAT Kolkata)
A perusal of Section 271AAB would reveal that it is applicable where search has been initiated under section 132 of the Income Tax Act. It is pertinent to observe that in the Scheme of Income Tax Act, if a search is being conducted upon the assessee and incriminating material was found, then notice under section 153A of the Income tax Act would be served inviting the assessee to file return of his income. However, during the course of search, if any incriminating material belonging to some other person than the searched person was found, then ld. Assessing Officer of the searched person would record his satisfaction demonstrating the fact that material belonging to other person was found and it exhibits the escapement of some income from taxation. This satisfaction note is to be transmitted to the ld. Assessing Officer, who is having jurisdiction on such other person and the ld. Assessing Officer of other person would issue notice under section 153C. Therefore, sections 153A and 153C deal with two different categories of assessees. The penalty leviable under section 271AAB is with respect to those assessees where search has been conducted. The case of the present assessee falls under second category. The assessment was made under section 153C of the Income Tax Act. We fail to understand from where the ld. Assessing Officer has brought this statement of disclosure. Statement under section 132(4) is to be recorded during the course of search to find out, whether any declaration is to be made by an assessee or not. The next fatuous attempt at the end of ld. Assessing Officer is that taxable income determined by him in the assessment order is of Rs.1,25,82,290/-, which is almost equivalent to the returned income disclosed by the assessee. The penalty is to be computed by taking cognizance of the assessed income. Here the ld. Assessing Officer has imposed a penalty of Rs.1.98 crores without making any reference to the income determined in the hands of assessee, rather taking cognizance of the statement of searched person, who might have disclosed Rs.6.6 crores. It is totally against the law and the ld. 1st Appellate Authority has rightly appreciated the facts and circumstances by deleting the penalty. We do not find any merit in the appeal. Hence it is dismissed.
FULL TEXT OF THE ORDER OF ITAT KOLKATA
The Revenue is in appeal before the Tribunal against the order of ld. Commissioner of Income Tax (Appeals)-21, Kolkata dated 08.08.2019 passed for the assessment year 2015-16.
2. The solitary grievance of the Revenue is that the ld. CIT(Appeals) has erred in deleting the penalty levied under section 271AAB of the Income Tax Act, 1961.
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