| COURT: | ITAT Kolkata |
| CORAM: | Mahavir Singh (JM), P. K. Bansal (AM) |
| SECTION(S): | 271AAA |
| GENRE: | Domestic Tax |
| CATCH WORDS: | concealment of income, penalty |
| COUNSEL: | Ravi Tulsiyan |
| DATE: | June 30, 2015 (Date of pronouncement) |
| DATE: | July 1, 2015 (Date of publication) |
| AY: | 2008-09 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 271AAA: Law on what is “undisclosed income” and levy of penalty on the basis of a “dumb” document and surrender by the assessee explained | |
(i) Undisclosed income means “any income represented by any documents” found during the course of search, which are not recorded in the books of accounts of the assessee. In the instant case, the additions of cash expenses and payments of Rs.71,90,623 is the result of cash available out of the disclosed cash of Rs.6.84 crores which was included in the disclosure petition. Further, addition of Rs.15 lakh on account of alleged cash receipts from Sampoorna Logistics, which was alleged to be reimbursement, it is clear that expenditure recorded in the books of accounts can be held to be undisclosed income of the assessee if the said expenditure is found to be false. It is the Department on whom, onus of proving that expenditure recorded in the books is bogus or false based on documentary evidences found in the course of search. Here in the present case, no documentary evidences establishing the falsity of claim of transportation charges paid to Sampoorna Logistics was found in the course of search. According to us the said expenditure cannot be held to be undisclosed income of the assessee for the purpose of levying penalty u/s. 271AAA of the Act;
(ii)A charge can be levied on the basis of document only when the document is a speaking one. The document should speak either out of itself or in the company of other material found on investigation and/or in the search. The document should be clear and unambiguous in respect of all the four components of the charge of tax. If it is not so, the document is only a dumb document. No charge can be levied on the basis of a dumb document. A document found during the course of a search must be a speaking one and without any second interpretation, must reflect all the details about the transaction of the assessee in the relevant assessment year. Any gap in the various components for the charge of tax must be filled up by the Assessing Officer through investigations and correlations with other material found either during the course of the search or on investigations. A document was bereft of necessary details about the year of transaction, ownership, nature of transaction, necessary code for deciphering the figures cannot be relied upon;
(iii) Penalty cannot be levied merely on the admission of the assessee and there must be some conclusive evidence before the AO that entry made in the seized documents, represents undisclosed income of the assessee. Where the assessee for one reason or the other agrees or surrenders certain amounts for assessment, the imposition of penalty solely on the basis of the assessee’s surrender will not be well-founded.
please revenue officers all need to under go basic english understanding course limited to the language employed in the indian income tax act 1961, else government would unnecessarily put all tax payers in unnecessary hindrance.
even if the tax ligua franca is any other language the revenue officers need to secure 100% marks in that language, else he or she cannot be appointed to the post of tax officer….
this and several judgements i had been following closely for about a decade proves positive language knowledge is indeed very bad in almost all govt officers more particularly in tax officers, ; when such poverty of their knowledge if putting the tax payers in trouble, naturally judiciary need to fine exemplary fines on the revenue officers personally beside on the ministry of finance government of india exemplary irreparable damages so that tax payers interests protected as Art 265 is clear taxation shd be levied as per procedure established by law.
if not done by judiciary promptly govt being run by shrewd politicians like jaitley arun might introduce another constitutional amendment to amend the Aer 265, it is no joke but your finance minister being double shrewd to modi would not hesitate to introduce such a bill as his party has a brute majority that would see the bill is passed by 2/3 rd majority and approved by 16 states as these states are run by BJP men or their great allies as co-participants in so called all concoctions of governance !