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The assessee carried the matter in appeal before the ld. CIT(A) who noted that the assessee has made disclosure of additional income and same was also offered in the return filed u/s 153A of the Act. It was further stated that intention of legislature was very clear that section 271AAB provides for mandatory levy of penalty on surrender of undisclosed income though quantum thereof may vary subject to fulfillment of certain conditions and thus, unlike section 271AAA, wherein immunity from imposition of penalty is possible subject to fulfillment of conditions, there is no immunity clause provided from penalty u/s 271AAB. It was accordingly held that the penalty u/s 271AAB is mandatory in nature and there is no discretion with the AO and the penalty so levied by the Assessing Officer was confirmed.Against the said findings, the assessee is now in appeal before Tribunal.

Shanti Prime Publication Pvt. Ltd.

Sec. 271AAB of Income Tax Act, 1961— Penalty — Assessing officer has merely gone by the surrender statement of partner of the assessee firm where the stock has been valued at market price as on the date of search and has not examined the matter from the perspective of determining any excess stock and the cost of such stock which is not recorded in the books of accounts and there is no finding that there is any excess stock which has been physically found and which has not been recorded in the books of accounts as on the date of search, therefore, basis the facts emerging from the records, it is clear that difference in stock of goods as per books and as found at the time of search is on account of valuation of such stock at the market value instead of cost and the same cannot be a basis to hold that it represent undisclosed income so defined in explanation to section 271AAB , in the entirety of facts and circumstances of the case, the penalty levied u/s 271AAB is not sustainable as it doesn’t satisfy the requirements as so prescribed under section 271AAB and the orders of the lower authorities are set-aside and the appeal of the assessee is allowed. - SUMATI GEMS V/s DEPUTY CIT - [2020] 28 ITCD Online 010 (ITAT-JAIPUR)