Case Law Details
Ashok B Sureban Vs ACIT (ITAT Bangalore)
AO levied penalty u/s. 271AAB of the Act on account of undisclosed income declared by the assessee during the post-survey proceedings on 6.8.2015. Against this, the assessee went in appeal before the CIT(Appeals). The CIT(Appeals) confirmed the levy of the penalty u/s. 271AAB of the Act. Aggrieved, the assessee is in appeal before ITAT.
At the outset the ld.AR argued reiterating the grounds of appeal that revenue authorities are not justified in imposing penalty on the assessee u/s. 271AAB of the Act since there was no search in the case of assessee u/s. 132 of the Act. He submitted that in these cases no search took place in the assessee’s case and actual search took placed in the case of M/s Vishwa Developers & Builders, Hubli u/s. 132 of the Act on 26.7.2012. Consequent to this search action, the assessee’s case is covered u/s. 153C of the Act and assessment order was framed in these assessment years u/s. 143(3) r.w.s. 153C of the Act. According to him, levy of penalty could be possible only in the hands, where search took place u/s. 132 of the Act, consequent to which assessment was framed u/s. 153A of the Act. Since in these cases, there was no search u/s. 132 of the Act, levy of penalty u/s. 271AAB of the Act is not at all justified. For this purpose, he relied on the order of the Coordinate Bench of this Tribunal in the case of Shri Suresh H. Kerudi in ITA Nos.2950 to 2955/Bang/2018, order dated 25.10.2019.
A perusal of the provisions of section 271AAB shows that the opening words are “penalty where search has been initiated” a perusal of the provisions under Section 271AAB also talks of the assessee declaring any undisclosed income in the course of the search in the statement under section 132(4). Admittedly in the present case, that is in the case of the assessee firm in appeal there has been no search.
We are of the view that the penalty in the case of assessee cannot be sustained as the assessee was not a person who was subjected to search u/s. 132 of the Act and consequently the provisions of section 271AAB could not be invoked in his case
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