100% of the tax claimed to be evaded in the penalty under Section 271AAA was not a typographical error

Fact and issue of the case

This is an appeal filed by the assessee against the order dated 30.3.2013 of the ld CIT(A)-1,Bhubaneswar in Appeal No.0339/10-11 for the assessment year 2008-09.

In this appeal, the assessee has challenged the addition of Rs.50,000/- made on estimate basis.

At the time of hearing, ld AR of the assessee submitted that, as per instruction of the assessee, he does not wish to press this ground and endorsed to this effect in the grounds of appeal. Consequently, the ground is dismissed as withdrawn.

In the result, appeal of the assessee stands dismissed. IT(ss)ANo.50/CTK/2013: A.Y. 2009-1– Assessee’s appeal IT(ss)ANo.72/CTK/2013: A.Y. 2009-10 – Revenue’s appeal

These are cross appeals filed by the assessee and revenue against the order dated 20.3.2013 of the ld CIT(A)-1, Bhubaneswar in Appeal No.0340/10-11 for the assessment year 2009-10.

In assessee’s appeal, the assessee has challenged the action of the ld CIT(A) in estimating the income of the assessee at 10% of the administrative expenses and export expenses.

At the time of hearing, ld AR submitted that the issue was squarely covered by the decision of this Co-ordinate Bench in the case of Aliza International Pvt Ltd in IT(ss)A Nos.51 & 52/CTK/2013 for the assessment year 2008-09 & 2009-10 order dated 13.10.2022, wherein.

Observation of the court

This is an appeal filed by the assessee against the order of the ld CIT(A)-1, Bhubaneswar dated 3.9.2020 in Appeal No.0125/15-16 for the assessment year 2009-10 against the confirmation of penalty levied u/s.271(1)(c) of the Act.

It was submitted by ld AR that the search in the case of the assessee took place on 28.5.2008 and the assessment year 2009-10 was the specified period and for the purpose of levying the penalty, if at all, was u/s.271AAA and not u/s.271(1)(c) of the Act. He submitted that this issue was covered by the decision of the Co-ordinate Bench of this Tribunal in the case of

In reply, ld CIT DR submitted that a show cause notice had been issued under both the sections i.e. 271AAA and 271(1)(c) and it was only a typographical error.

We have considered the rival submissions. The penalty leviable u/s.271AAA is 10% of the concealed income whereas under section 271(1)(c), the penalty is leviable at 100% of the tax sought to be evaded. A perusal of the order of the Assessing officer shows that the AO has levied penalty at 100% of tax sought to be evaded. Consequently, the order passed by the AO cannot be held as typographical error. In regard to levy of penalty u/s.271AAA of the Act, assessment year 2009-10 is the specified year in respect of the assessee, as the search took place on 28.5.2008. Respectfully following the decision of the Co-ordinate bench of this Tribunal in the case of S.M.Enterprises (supra), the penalty levied u/s.271(1)(c) by the AO and confirmed by the CIT(A) stands deleted.

In the result, appeal of the assessee is allowed.