H.L. Karwa, J.M. - (1.) THIS is an appeal by the assessee and is directed against the order of the learned CIT(A)-I, Pune dt. 12th Dec., 2002, confirming the penalty of Rs. 2,35,761 under Section 158BFA(2) of the IT Act, 1961.
(2.) The assessee is an individual and was being assessed to tax for the last several years. The sources of the income of the assessee are share of profit from the firm M/s Nanda Clinic and income from commission and brokerage. A search and seizure action under Section 132 was carried out at the premises of Dr. P.K. Nanda on 24th Nov., 1999, which was concluded on 31st Dec., 1999. The assessee is father of Dr. P.K. Nanda, therefore, his residential premises was also covered under the search action. There was no seizure of any asset in this case. A notice under Section 158BC was issued to the assessee, which was served upon him on 10th May, 2000, The assessee filed his return of undisclosed income for the block period on 23rd June, 2000 and undisclosed income was declared as Rs. Nil. From the records of the assessee's case, it was noticed by the AO that in the instant case the return of income for asst. yr. 1999-2000 filed by the assessee on 23rd June, 2000 was beyond the specified date in the Act. According to the AO, the return of income for the asst. yr, 1999-2000 was due on or before 30th June, 1999. The assessee was a partner in M/s Nanda Clinic. The due date in the case of said concern was 31st Oct., 1999. The assessee did not file the return by this date. However, the return was filed on 23rd June, 2000. The AO was of the view that the income declared at Rs. 3,57,214 was undisclosed income of the assessee liable to tax under the provisions of Section 158BB(1)(c) of Chapter XIV-B of IT Act, 1961. Accordingly, the AO determined the income of the assessee and levied the tax. He had also initiated penalty proceedings under Section 158BFA(2) of the IT Act, 1961 and vide order dt. 24th June, 2002 imposed penalty of Rs. 2,35,761 under Section 158BFA(2) read with second proviso thereto of the IT Act, 1961. In further appeal, the CIT(A) upheld the action of the AO in levying the penalty and also directed the AO to take action under Section 158BFA(1) for charging interest as return of undisclosed income was beyond the time-limit under Section 158BC(a) of the Act. The relevant findings of the learned CIT(A) given in paras 4.2 and 5 are reproduced hereunder: "I may like to point out here that the appellant is liable to penalty under Section 158BFA(2) itself without taking recourse to proviso thereto as the return of undisclosed income for the block period has not been filed under Section l58BC(a). In fact, the AO may also take action under Section 158BFA(1) for charging interest, if it has not already been done, as the return of undisclosed income was beyond the time allowed under Section 158BC(a) of the IT Act, 1961. After considering various aspects of the case and legal position as it exists, levy of penalty under Section 158BFA(2) is hereby confirmed."
(3.) AGGRIEVED by the order of the learned CIT(A), the assessee is in further appeal before this Bench of the Tribunal.;