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11.15 Aggrieved with the finding of the Ld. CIT(A) of deleting the penalty, the Revenue is in appeal before the Tribunal raising the grounds as reproduced above.

ITA No.2044 & 2045/Del/2014;

12. Before us, the Ld. counsel of the assessee also filed application under rule 27 of the ITAT Rules, 1963 submitting that in the instant case penalty could have been levied under section 271AAA of the Act and not under section 271(1)(c) as only done by the Assessing Officer and, thus, order of the Ld. CIT(A) cancelling the penalty imposed under section 271(1)(c) might be sustained albeit on the ground of legal submission that in the specified year the penalty under section 271AAA could be levied.

21. We note that in the instant case the due date of filing of the return of income for the previous year corresponding to the year under consideration had not expired on the date of the search i.e. condition (b) and therefore the Explanation 5A could not be attracted for holding the assessee liable for levy of penalty under section 271(1)(c) of the Act.

22. The other argument of the Ld. counsel of the assessee is that the penalty in case of a specified year could be levied under section 271AAA of the Act only. On perusal of the relevant provisions we find that penalty under section 271AAA of the Act can be levied in respect of undisclosed income in a specified ITA No.2044 & 2045/Del/2014;

previous year if any of the following 3 conditions contained in section 271AAA(2) are not fulfilled:

"Penalty where search has been initiated.

271AAA. (1) ...............................................

(2) Nothing contained in sub-section (1) shall apply if the assessee,--

(i) in the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived;

(ii) in which search was conducted."

24. Since the previous year corresponding to the present assessment year ended before the date of such i.e. 31.03.2008 and due date of filing of the return of income had not expired before the date of the search, the previous year corresponding to present assessment year under consideration is a specified previous year, and thus penalty under section 271AAA could be levied. The penalty under section 271AAA of the Act could be levied in specified previous year in respect of the undisclosed ITA No.2044 & 2045/Del/2014;