Chand Tie-Up Private Limited , Kolkata V. DCIT, Central Circle - 1(4), , Kolkata

CO 106/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7820 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 24-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Question of law; Competent authority; Block assessment; Tax effect; Reason to believe
• Section: 271(1)(c); 153A; 250; 132; 10; 139

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO. 214 /KOL/ 2017 & C.O. NO.29/KOL/2017 (A/O ITA NO.214/KOL/2017) ASSESSMENT YEAR: 2013-14 DCIT, CENTRAL CIRCLE-1(4), 3 RD FLOOR, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-107 / V/S . M/S AKASHARA VINIMAY PVT. LTD., 2 ND , FLOOR, 7, WATERLOO STREET, KOLKATA-7000 069 [ PAN NO.AAFCA 4777 L ] /APPELLANT .. /RESPONDENT/ /CO-OBJECTOR ITA NO. 153 /KOL/ 2017 & C.O. NO.24/KOL/2017 (A/O ITA NO.153/KOL/2017) ASSESSMENT YEAR: 2013-14 ACIT, CENTRAL CIRCLE-2(3), 4TH FLOOR, R.NO. 403, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-107 / V/S . SHRI RAMAUTAR GROURISARIA, 10A, SHAKESPEARE SARANI, KOLKATA-7000 071 [ PAN NO.ADCPG 5849 A ] /APPELLANT .. /RESPONDENT/ /CO-OBJECTOR ITA NO. 223 /KOL/ 2017 & C.O. NO.94/KOL/2017 (A/O ITA NO.223/KOL/2017) ASSESSMENT YEAR: 2013-14 ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 2 DCIT, CENTRAL CIRCLE-1(4), 3 RD FLOOR, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-107 / V/S . M/S INDRADEV VYAPAAR PVT. LTD. 49, BUROTOLLA STREET, KOLKATA-7000 007 [ PAN NO.AABCI 4398 F ] /APPELLANT .. /RESPONDENT/ /CO-OBJECTOR ITA NO. 224 /KOL/ 2017 & C.O. NO.106/KOL/2018 (A/O ITA NO.224/KOL/2017) ASSESSMENT YEAR: 2013-14 DCIT, CENTRAL CIRCLE-1(4), 3 RD FLOOR, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-107 / V/S . M/S CHAND TIE-UP PVT. LTD., 91A/1, BLOKC NO. 401, 4 TH FLOOR, AVANI SIGNATURE, PARK STREET, KOLKATA-7000 016 [ PAN NO.AACCC 7107 P ] /APPELLANT .. /RESPONDENT/ /CO-OBJECTOR ITA NO. 225 /KOL/ 2017 & C.O. NO.105/KOL/2018 (A/O ITA NO.225/KOL/2017) ASSESSMENT YEAR: 2013-14 DCIT, CENTRAL CIRCLE-1(4), 3 RD FLOOR, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-107 / V/S . M/S PASUPATI COMMERCE PVT. LTD. 91A/1, BLOCK NO.401, 4 TH FLOOR, AVANI SIGNATURE, PARK STREET, KOLKATA-7000 016 [ PAN NO.AAECP 4292 N ] /APPELLANT .. /RESPONDENT/ /CO-OBJECTOR ITA NO. 226 /KOL/ 2017 & C.O. NO.104/KOL/2018 (A/O ITA NO.226/KOL/2017) ASSESSMENT YEAR: 2013-14 ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 3 DCIT, CENTRAL CIRCLE-1(4), 3 RD FLOOR, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-107 / V/S . M/S ALISSA NIRMANS PVT. LTD., 91A/1, BLOCK NO.401, 4 TH FLOOR, AVANI SIGNATURE, PARK STREET, KOLKATA-16 [ PAN NO.AAGCA 1842 F ] /APPELLANT .. /RESPONDENT/ /CO-OBJECTOR C.O NO.28/KOL/2017 (A/O ITA NO.219/KOL/2017) ASSESSMENT YEAR: 2013-14 BINOD KUMAR MISRA & OTHERS HUF, 2 ND FLOOR, 7, WATERLOO STREET, ESPLANADE, KOLKATA-69 [ PAN NO.AABHB 7999 C ] / V/S . DCIT, CENTRAL CIRCLE-1(4), 3 RD FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, E.M. BYE- PASS, KOLAKTA-107 /CO-OBJECTOR .. /RESPONDENT C.O NO.30/KOL/2017 (A/O ITA NO.215/KOL/2017) ASSESSMENT YEAR: 2013-14 SQUOOSH ENTERTAINMENT (P) LTD., ( FORMERLY KOMAL MERCHANTS PVT LTD ) VASUDEVA BUILDING, 1, ISHWAR GANGULY STREET, KOLKATA-700026 [ PAN NO.AADCK 5908 R ] / V/S . DCIT, CENTRAL CIRCLE-1(4), 3 RD FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, E.M. BYE- PASS, KOLAKTA-107 /CO-OBJECTOR .. /RESPONDENT C.O NO.33/KOL/2017 (A/O ITA NO.228/KOL/2017) ASSESSMENT YEAR: 2013-14 MISRA BRICK FIELDS PVT. LTD., 2 ND FLOOR, 7, WATERLOO STREET, ESPLANADE, KOLKATA- / V/S . DCIT, CENTRAL CIRCLE-1(4), 3 RD FLOOR, AAYAKAR BHAWAN, POORVA, 110, ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 4 700069 [ PAN NO.AABCM 6831 H ] SHANTIPALLY, E.M. BYE- PASS, KOLAKTA-107 /CO-OBJECTOR .. /RESPONDENT C.O NO.92/KOL/2017 (A/O ITA NO.229/KOL/2017) ASSESSMENT YEAR: 2013-14 LIKEWISH VINIMAY PVT. LTD., 3 RD FLOOR, ROOM NO.14,29A, RABINDRA SARANI, KOLKATA-700073 [ PAN NO.AAACL 9178 R ] / V/S . DCIT, CENTRAL CIRCLE-1(4), 3 RD FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, E.M. BYE- PASS, KOLAKTA-107 /CO-OBJECTOR .. /RESPONDENT C.O NO.103/KOL/2018 (A/O ITA NO152/KOL/2017) ASSESSMENT YEAR: 2013-14 SKIPPER FURNISHING PVT. LTD., GARIAHAT ROAD, KOLKATA-700029 [ PAN NO.AAICS 4009 A ] / V/S . DCIT, CENTRAL CIRCLE-2(3), 4 TH FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, E.M. BYE- PASS, KOLAKTA-107 /CO-OBJECTOR .. /RESPONDENT /BY ASSESSEE SHRI A.K. TIBREWAL, FCA & SHRI AMIT AGARWAL, ADVOCATE ' /BY RESPONDENT SHRI A.K.SINGH, CIT-DR & SHRI C.J. SINGH, JCIT-SR-DR /DATE OF HEARING 04-04-2019 /DATE OF PRONOUNCEMENT 24-04-2019 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 5 THE INSTANT BATCH OF SEVENTEEN CASES PERTAINS TO E LEVEN ASSESSEES. ALL THESE REVENUES APPEAL(S) AND ASSESSEES CROSS OBJECTIONS CASES ARISE FROM THE COMMISSIONER OF INCOME TAX (APPEALS)-20, KOLKATAS IDENTICAL ORDER(S) UPHOLDING / PARTLY CONFIRMING THE ASSESSING OFFICERS ACTION IM POSING THE PENALT(IES) IN ISSUE; INVOLVING PROCEEDINGS U//S 271AAB OF THE INCOME TA X ACT, 1961; IN SHORT THE ACT. RELEVANT ASSESSMENT YEAR IN ALL THESE CASES IS ASSE SSMENT YEAR 2013-14. 2. IT TRANSPIRES AT THE OUTSET THAT SOME OF THE CRO SS OBJECTIONS THAT CO NOS.104- 106/KOL/2018 SUFFER FROM IDENTICAL DELAY OF 548 DAY S IN FILING. THESE ASSESSEES HAVE PLACED ON RECORD THEIR RESPECTIVE CONDONATION PETIT ION(S) / AFFIDAVIT(S) STATING REASONS THEREOF TO VARIOUS PROCEDURAL FORMALITIES AND COMPI LATION OF NECESSARY RECORDS. THE REVENUE IS FAIR ENOUGH IN NOT DISPUTING CORRECTNESS OF THE SAID CONDONATION AVERMENTS. WE THEREFORE CONDONE THE ABOVE IDENTICAL DELAY IN ALL THESE CROSS OBJECTION(S). THE SAME ARE NOW TAKEN UP FOR ADJUDIC ATION ON MERITS. 3. IT EMERGES AT THE OUTSET THAT ALL THESE INSTANT SEVENTEEN CASES INCLUDING REVENUES APPEAL(S) AND ASSESSEES CROSS OBJECTION; AS THE CASE MAY BE, RAISE IDENTICAL ISSUE OF CORRECTNESS OF U/S 271AAB PENALT(IES) IMPO SED BY THE ASSESSING OFFICER AND PARTLY UPHELD IN THE LOWER APPELLATE PROCEEDING. LE ARNED AUTHORIZED REPRESENTATIVE HAS FILED A DETAILED COMPILATION CHART OF THE NECESSARY FACTS AND FIGURES TO THE FOLLOWING EFFECT:- NAME OF ASSESSEE & GROUP ITA NO. CO NO. SUO MOTO DISCLOSURE DISCLOSURE OF CASH/JEWELLERY/ OTHERS TOTAL DISCLOSURE PENALTY LEVIED U/S 271AB PENALTY DELETED BY CIT(A) PENALTY CONFIRMED BY CIT(A) AKSHARA VINIMAY PVT. LTD. 214/K/17 29/K/17 33500000 16250000 49750000 4975000 3350000 1625000 SQUOOSH ENTERTAINMENT PVT LTD 215/K/17 30/K/17 20000000 10000000 30000000 3000000 2000000 1000000 SKIPPER FURNISHING PVT. LTD TAX EFFECT 103/K/18 20000000 3800000 23800000 2380000 2000000 380000 RAMAUTAR GOURISARIA 153/K/17 24/K/17 891,00000 3449151 92549151 9254915 8910000 344915 BINOND KR. MISHRA & OTHERS (HUF) TAX EFFECT 28/K/17 11000000 21844110 32844110 3284411 1100000 2184411 INDRADEV VYAPAAR PVT LTD. 223/K/17 94/K/17 27500000 12500000 40000000 4000000 2750000 1250000 CHAND TIE UP PVT LTD 224/K/17 106/K/18 22500000 -- 25000000 2500000 250 0000 -- PASHUPATI COMMERCE PVT LTD. 225/K/17 105/K/18 22500000 -- 22500000 2250000 22 50000 -- ALISSA NIRMANS PVT LTD 226/K/17 104/K/18 22500000 -- 22500000 2250000 22 50000 -- MISHRA BRICK FIELDS PVT LTD. TAX EFFECT 33/K/17 20000000 5000000 25000000 2500000 2000000 5 00000 ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 6 LIKEWISH VINIMAY PVT LTD. TAX EFFECT 92/K/17 20000000 5000000 25000000 2500000 2000000 5 00000 4. IT IS IN THIS BACKDROP OF FACTS THAT WE TREAT RE VENUES APPEAL ITA NO.225/KOL/2017 AND CROSS OBJECTION NO.105/KOL/2018 IN M/S PASUPATI COMMERCE PVT. LTD. TO BE THE LEAD CASE. THE INSTANT LIS HAS EMANATED FROM THE SEARCH IN QUESTION DATED 16.10.2012. THE ASSESSEES AUTHORIZE D PERSON(S) APPEAR TO HAVE MADE SEARCH DISCLOSURE AS PER THE ABOVE COMPILATIONS CHA RTS FIGURES. THE ASSESSING OFFICER THEREAFTER COMPLETED SEC. 153A ASSESSMENT PROCEEDIN GS. HE FURTHER INITIATED THE IMPUGNED PENALTY PROCEEDINGS U/S 271AAB OF THE ACT. HE CONCLUDED IN HIS PENALTY ORDER DATED 29.09.2015 THAT THE ASSESSEES DISCLOSU RE OF 225,00,000/- AMOUNTED TO UNDISCLOSED INCOME INVITING IMPUGNED PENAL PROCEEDINGS U/S 271AAB OF THE ACT. HE OBSERVED IN HIS PENALTY ORDER THAT THIS GROUPS DISCLOSURE OF 45,03,41,444/- INCLUDING VARIOUS ENTITIES COULD BE DIVIDED INTO TW O LIMBS. FORMER LIMB AS PER THE ASSESSING OFFICER WAS ON ACCOUNT OF UNACCOUNTED CAS H / JEWELLERY TOTALING TO 12,13,41,444/- FOUND DURING THE COURSE OF SEARCH. H E THEN CAME TO LATTER LIMB OF ADDITIONAL INCOME INCLUDING DISCLOSURE OF 32,90,00,000/- DERIVED THEIR BUSINESS ACTIVITIES. HE THEN CAME TO ASSESSEES WRITTEN SUBM ISSIONS SUBMITTED DURING DISCLOSURE DATED 12.11.2012 TO HOLD THAT THE SAME SUFFICIENTLY ATTRACTED U/S 271AAB PENAL ACTION IN VIEW OF THE ABOVE STATED UNDISCLOSED INCOME DELE TED DURING SEARCH. THE ASSESSING OFFICER HELD THAT THE ASSESSEES DISCLOSURE MADE DU RING THE COURSE OF SEARCH ITSELF WOULD PARTAKE THE CHARACTER OF UNDISCLOSED INCOME S O AS TO INVOKE THE IMPUGNED PENAL PROVISION. ALL THIS RESULTED IN ASSESSING OFFICERS ACTION LEVYING THE PENALTY IN ISSUE AMOUNTING TO 22,50,000/- @ 10% OF THE UNDISCLOSED INCOME AMOUNTI NG TO 225,00,000/- (SUPRA). 5. THE ASSESSEE PREFERRED APPEAL. THE CIT(A) HAS RE VERSED THE ASSESSING OFFICERS ACTION AS FOLLOWS:- I HAVE CONSIDERED THE FINDINGS GIVEN BY THE AO IN T HE PENALTY ORDER AND SUBMISSIONS MADE BY THE AR DURING THE APPELLATE PROCEEDINGS. I FIND THAT THE AO HAS TAKEN THE UNDISCLOSED INCOME OF THE ASSESSEE FOUND DURING THE SEARCH OPERATION U/S.132 ( FOR WHICH EVIDENCES, DOCUMENTS/PAPERS, STOCK, CASH ETC WERE FOUND ) ALONG WITH THE AMOUNT DECLARED SUO MOTO BY THE ASSESSEE ( FOR WHICH NO EVIDENCE, PAPERS/DOCUMENTS, STOCK, CASH ETC WERE FOUND DURING THE SEARCH OPERATION) IN ORDER TO BUY PEACE OF MIND AND AVOID AN FURTHER LITIGATIO N. THE ASSESSEE HAS BROUGHT ON ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 7 RECORD THE CASE LAW OF DILIP N SHROFF VS CIT (2007) 291 ITR 519 (SC). IN THIS CASE LAW THE HON'BLE SUPREME COURT HAS HELD THAT IMPOSIT ION OF PENALTY IS NOT AUTOMATIC. LEVY OF PENALTY IS NOT ONLY DISCRETIONARY IN NATURE , BUT SUCH DISCRETION IS REQUIRED TO BE EXERCISED ON THE PART OF THE ASSESSING OFFICER K EEPING THE RELEVANT FACTORS IN MIND. THE AR HAS ALSO BROUGHT ON RECORD THE CASE OF PUNJA B TYRES PUNJAB TYRES [1986] 162 ITR 517 (MADHYA PRADESH), THE HON'BLE HIGH COUR T OF MADHYA PRADESH) IN WHICH IT WAS HELD THAT WHEN SURRENDER IS MADE TO PU RCHASE PEACE OR FOR OTHER SIMILAR REASON, SURRENDER CANNOT AMOUNT TO ADMISSION, CONST ITUTING EVIDENCE OF CONCEALMENT IN PENALTY PROCEEDINGS. THE AR HAS BROUGHT ON RECORD THE CASE LAW OF SUDHAR SAN SILK AND SAREES, 300 ITR 30 (SUPREME COURT) IN THIS CASE, THE HON'BLE SUPREME C OURT HAS HELD THAT IF THE APPELLANT OFFERS ANY AMOUNT FOR TAXATION FOR THE PU RPOSE OF PURCHASING PEACE AND ASSESSMENT HAS BEEN MADE BASED UPON THE AFORESAID O FFERINGS, EVEN IF NO ASSURANCE IN WRITING IS GIVEN BY THE SEARCHING PARTY, IT MAY BE CLEARLY INFERRED THAT SUCH AN INDUCEMENT MUST HAVE BEEN GIVEN BY THE SEARCHING PA RTY. WHEN ONLY PARTIAL EVIDENCE OR NO EVIDENCE IN SUPPORT OF CONCEALMENT WAS DETECT ED DURING THE SEARCH, WHY WOULD A PERSON GO TO OFFER A HIGHER AMOUNT UNLESS HE WAS PROMISED SOME RECIPROCAL BENEFITS LIKE NOT BEING VISITED BY PENALTY. THUS, IT WAS HEL D THAT WHERE ADDITIONS HAVE BEEN MADE BASED ON ASSESSEES OWN OFFERINGS, PENALTY PRO VISION SHALL NOT LIE. I FIND THAT DURING THE SEARCH AND SEIZURE OPERATION U/S. 132 IN THIS CASE NO EVIDENCES REGARDING CONCEALMENT/UNDISCLOSED INCOME IN THE FOR M OF CASH SEIZURE/PAPERS/DOCUMENTS/STOCK ETC WERE FOUND AND S EIZED. NOTHING INCRIMINATING/.NO EVIDENCES WERE FOUND REGARDING RS.225 LAKH WHICH WA S OFFERED FOR TAXATION BY THE ASSESSEE SUO MOTO IN ORDER TO BUY PEACE OF MIND. I ALSO FIND THAT NEITHER THE OFFICERS IN THE INVESTIGATION WING IN THE POST SEARCH INVESTIGA TION NOR THE ASSESSING OFFICER DURING ASSESSMENT PROCESS FOUND ANY DISCRIMINATING EVIDENCE OF UNDISCLOSED INCOME OTHER THAN THE STATEMENT OF THE ASSESSEE FOR MAKING THE ADDITION OF RS.225 LAKH. FURTHER I FIND THAT THE AO HAS LEVIED PENALTY U/S 2 71AAB(1)(A). THIS SECTION READS LIKE SUM COMPUTED AT THE RATE OF TEN PER CENT OF TH E UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. THUS, IT IS CLEAR THAT IN ORDER TO LEVY PENALTY TWO THINGS ARE ESSENTIAL (1) UNDISCLOSED INCOME AND (2) SPECIFIED PREVIOUS YEAR. HERE IN THI S CASE RS.225 LAKH WAS OFFERED FOR TAXATION BY THE ASSESSEE SUO MOTO IN THE STATEMENT RECORDED AT THE TIME OF SEARCH. FROM THE RATIO DECIDED BY THE HON'BLE SUPREME COURT CO SUDARSHAN SILK & SARIES (SUPRA), IT IS CLEAR THAT ONLY THE STATEMENT OF THE ASSESSEE WITHOUT ANY CORROBORATING EVIDENCE CANNOT BE THE ONLY BASIS FOR LEVYING PENAL TY. HERE IT IS ALSO CLEAR THAT FROM THE STATEMENT OF THE ASSESSEE ONE CANNOT POINT OUT WHICH AMOUNT UNDISCLOSED INCOME PERTAINS TO WHICH SPECIFIED PREVIOUS YEAR. IN THIS SITUATION, WHERE NOTHING IS CLEAR FROM ASSESSEES STATEMENT RECORDED AT THE TIME OF S EARCH, THE ACTION OF THE AO TO LEVY PENALTY U/S. 271AAB((1)(A) ON THE AMOUNT OFFERED BY THE ASSESSEE SUO MOTO TO BUY PEACE OF MIND, CANNOT BE JUSTIFIED. THE HON'BLE SUP REME COURT HAS ALSO CATEGORICALLY DECIDED THE RATIO THAT PENALTY CANNOT BE LEVIED ON THE AMOUNT OFFERED BY THE ASSESSEE IN ORDER TO BUY PEACE OF MIND [IN THE CASE OF SUDAR SHAN SILK & SARIES (SUPRA)]. THUS, RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON 'BLE SUPREME COURT, THE AO IS DIRECTED TO DELETE THE PENALTY U/S. 271AAB(1)(A). ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 8 6. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. THE REVENUE VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING TH AT THE ASSESSING OFFICER HAD RIGHTLY IMPOSED THE IMPUGNED PENALTY IN ASSESSEES CASE FOR THE REASON THAT ITS SEARCH DISCLOSURE (SUPRA) ATTRACTED THE ABOVE PENAL PROVIS ION IN ENTIRETY. IT IS REITERATED THAT THE ASSESSEES SEARCH DISCLOSURE AMOUNTED TO UNDISCLOSED INCOME WITHIN THE MEANING OF SECTION 271AAB EXPLANATION (C) OF THE AC T BEING IN THE NATURE OF MONEY / BULLION / JEWELLERY OR OTHER VALUABLE ARTICLE OR TH ING AS SPECIFIED BY THE LEGISLATURE. HE QUOTES HON'BLE APEX COURTS RECENT DECISION IN SANDEEP CHANDAK VS. PR.CIT (2018) 93.TAXMANN.COM 406 (SC) FOR PLEADING THAT THE IMPUG NED PENALTY PROVISION ARE AUTOMATIC THE NORMAL ASSESSEE MAKES DISCLOSURE OF I TS UNDISCLOSED INCOME DURING THE COURSE OF SEARCH. THE TAXPAYER ON THE OTHER HAND ST RONGLY SUPPORTS THE CIT(A)S FINDINGS DELETING THE IMPUGNED PENALTY MAINLY ON TH E GROUND THAT THE DISCLOSURE IN ISSUE WAS MADE SUO MOTU WITHOUT ANY CORROBORATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH WHICH COULD FORM THE BASIS FOR LEVYING THE PENALTY IN ISSUE. WE FIND IN THIS BACKDROP OF FACTS THE INSTANT ISSUE RA ISED AT THE REVENUES BEHEST AS TO WHETHER THE IMPUGNED SEC. 271AAB PENALTY IS AUTOMAT IC OR NOT IS NO MORE RES INTEGRA AS THIS TRIBUNALS CO-ORDINATE BENCH IN ITA NO.1604/KOL/2017 DECIDED ON 27.02.2019 HAS DECLINED ITS SIMILAR ARGUMENT VIDE FOLLOWING DE TAILED DISCUSSION:- 9. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. THERE IS HARDLY ANY DISPUTE BETWEEN THE PARTIES ABOUT THE BASIC FACTS I NTER ALIA THAT THE DEPARTMENT HAD CONDUCTED THE IMPUGNED SEARCH IN THESE THREE ASSESSEES CASES WHEREIN THEY DECLARED THEIR RESPECTIVE ADDITIONAL INCOMES THEY FILED THEIR RESPECTIVE RETU RNS ACCORDINGLY INCLUDING SAID ADDITIONAL INCOMES THEREIN. THE ASSESSING OFFICER ACCEPTED THE SAME IN CONSEQUENTIAL ASSESSMENTS. THE SOLE DISPUTE BETWEEN THE PARTIES HEREIN IS ABOUT OP ERATION OF THE IMPUGNED PENAL PROVISION I.E. SECTION 271AAB OF THE ACT. THE REVENUES CASE BEFORE US IS THAT IT AUTOMATIC COMES INTO PLAY THE MOMENT THE SEARCHED-ASSESSEE MAKES ANY DIS CLOSURE OF UNDISCLOSED INCOME WHEREAS THE ASSESSEE PLEADS THAT THIS PENAL PROVISION APPLI ES IN CASE THE SEARCH ITSELF LEADS TO SOME SPECIFIED MATERIAL INDICATING UNDISCLOSED INCOME DE FINED IN SEC. 271AAB EXPLANATION (C) OF THE ACT. THE REVENUE ADMITTEDLY RAISES ITS ARGUMENT S AS PER HON'BLE APEX COURTS DECISION IN SANDEEP CHANDAK (SUPRA) DECLINING THE TAXPAYERS SP ECIAL LEAVE PETITION IN LIMINE CHALLENGING HON'BLE ALLAHABAD HIGH COURTS DECISION REVIVING THE PENALTY THEREIN. THE REVENUES CASE APPEARS TO BE CARRYING SUBSTANCE AB INITIO THAT AS PER HON'BLE APEX COURTS CLINCHING OBSERVATIONS WHILST DECLINING ASSESSEES SPECIAL LEAVE PETITION THAT NO GROUND WAS MADE OUT TO INTERFERE WITH THE HON'BLE HIGH COURTS JUDGMENT UNDER CHALLENGE. IT DOES NOT STAND ON THE CORRECT SIDE OF LAW WHEN WE CAREFULLY STUDY IN ALL THESE LEGAL DEVELOPMENTS. WE FIND THAT THE TRIBUNALS CO-ORDINATE BENCHS ORDER IN SANDEEP CHANDAK VS. ACIT (2017) 185 TTJ 265 (LUC) HAD DELETED SEC. 271AAB PENALTY IN IS SUE PRIMARILY FOR THE REASONS THAT THE ASSESSING OFFICER SERVED ONLY U/S. 271(1)(C) PENALT Y NOTICES, GRANTED VERY SHORT TIME TO THE TAXPAYER BEFORE LEVYING THE IMPUGNED PENALTY. IT TH EN OBSERVED THAT THE ASSESSING OFFICER HAD NOT APPLIED U/S 271AAB EXPLANATIONS CLAUSE (A) TO ( C) AS WELL IN THE GIVEN FACTS AND CIRCUMSTANCES. THE REVENUE PREFERRED ITS APPEAL BEF ORE HON'BLE ALLAHABAD HIGH COURT FINALLY ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 9 CULMINATING IN JUDGMENT REPORTED AS (2018) 93 TAXMA NN.405 (ALL) PCIT VS. SANDEEP CHADAK. IT RAISED THREE SUBSTANTIAL QUESTION OF LAW IN ITS APPEAL AS FOLLOWS:- (A) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. ITAT HAS ERRED IN NOT APPRECIATING THE FACTS THAT THE NOTICE WAS ISSUED FOR IMPOSITION OF PENALTY U/S. 271AAB AND NOT FOR IMPOSITION OF PENALTY U/S 2 71(A)(C) OF THE ACT.? (B) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. ITAT HAS ERRED IN NOT APPRECIATING THE FACTS THAT THE SPECIF IC CHARGE HAVE IN A STATEMENT UNDER SUB SECTION 4 OF SECTION 132 DURING THE COURSE OF S EARCH AND SEIZURE OPERATION ADMITTED UNDISCLOSED INCOME WAS MENTIONED IN THE NO TICE? (C) WHETHER THE BENEFIT OF SECTION 292BB WAS CORREC TLY DENIED TO THE AO/APPELLANT BY THE ITIAT? 10. IT IS IN THIS FACTUAL BACKDROP THAT HON'BLE HIG H COURT HAD HELD THAT THE ASSESSING OFFICER HAD ISSUED THE RELEVANT NOTICE U/S 271(1)(C) R.W.S. 274 CONTAINING ALL PARTICULARS AND SECTION 292B OF THE ACT WOULD APPLY SINCE THE ASSESSEE HAD NEVER OBJECTED CORRECTNESS THEREOF BEFORE THE ASSESSING OFFICER IN CORRESPONDING PROCEEDINGS AND HAD IN FACT RESPOND TO THE NOTICE IN WRITING WITH AN UNDERTAKING THAT THIS WAS THE NOTIC E ISSUED BY THE ASSESSING OFFICER U/S 271AAB OF THE ACT. IN OTHER WORDS, THE ASSESSEE HAD NOT CONTENDED THAT THE IMPUGNED NOTICE WAS ISSUED U/S 271(1)(C) R.W.S. 274 IN ITS REPLY AN D WAS CLEAR THAT THE NOTICE WAS ISSUED TO LEVY PENALTY U/S 271AAB OF THE ACT. IT IS THUS CLEAR THA T THE CIT-DRS ARGUMENT THAT THE REVENUE HAS ALREADY SUCCEEDED ON THE ISSUE AS TO WHETHER TH E IMPUGNED PENALTY IS AUTOMATICALLY FLOWS THAN FROM THE ADDITIONAL INCOME DECLARATION MADE DU RING SEARCH; DOES NOT FIND SUPPORT FROM THE HON'BLE HIGH COURTS DISCUSSION. WE THEREFORE G O BY VARIOUS CO-ORDINATE BENCHES DECISIONS (SUPRA) IN THESE FACTS AND CIRCUMSTANCES TO CONFIRM THE CIT(A)S ACTION DELETING THE IMPUGNED PENALT(IES) TO THE EXTENT INDICATED HEREIN ABOVE FORMING PART OF SUBJECT-MATTER OF ADJUDICATION OF THESE THREE REVENUES APPEALS HOLDI NG THAT SEC. 271AAB COMES INTO PLAY IN CASE OF CORRESPONDING MATERIAL ONLY THAN AUTOMATIC IN CASE OF A SEARCH. WE WISH TO REITERATE HERE IN THESE FACTS THAT THE TRIBUNALS DECISIONS ( SUPRA) HAVE ALREADY HELD THAT SEC. 271AAB PENALTY APPLIES IN CASE OF ADDITIONAL INCOME DEFINE D UNDER EXPLANATION (C) OF THE ACT. WE THEREFORE DECLINE REVENUES THREE APPEALS. THE ASSE SSEES CROSS OBJECTIONS NO. 96 & 98/KOL/2017 SUPPORTING THE CIT(A)S ORDER TO THIS E XTENT ARE RENDERED INFRUCTUOUS. 11. WE NOW ADVERT TO SECOND ASSESSEES CROSS OBJECT ION NO.97/KOL/2017 CHALLENGING CORRECTNESS OF THE SUSTAINED PENALTY COMPONENT TO T HE EXTENT 17 LAC (SUPRA) BASED ON INCRIMINATING MATERIAL FOUND / SEIZED DURING SEARCH . ITS FIRST ARGUMENT IS THAT THE RELEVANT PENALTY NOTICE NOWHERE INDICATED AS TO UNDER WHICH LIMB THE ASSESSING OFFICER HAD INITIATED THE IMPUGNED PENALTY PROCEEDINGS IS NOT SUSTAINABLE . WE FIND THIS FIRST ARGUMENT TO BE DEVOID OF ANY MERIT SINCE THE ASSESSING OFFICER MADE IT CL EAR IN ASSESSMENT ORDER DATED 06.06.2014 THAT HE HAD ALREADY INITIATED U/S 271AAB PROCEEDING S. HON'BLE ALLHABAD HIGH COURTS DECISION (SUPRA) INVOLVED SUCH AN ISSUE WHEREIN THE IR LORDSHIPS MADE IT CLEAR THAT THESE PROCEEDINGS ARE AUTOMATIC IN CASE OF SEARCH FOLLOWE D BY SEC. 132(4) STATEMENT INVOLVING ADMISSION OF UNDISCLOSED INCOME. THE ASSESSEES FIR ST ARGUMENT IS REJECTED THEREFORE. 12. MR. TIBREWAL THEREAFTER FILES A WRITTEN NOTE RA ISING YET ANOTHER LEGAL PLEA AS FOLLOWS:- 4. PENALTY UNDER SECTION 271AAB COULD BE LEVIED ON ' UNDISCLOSED INCOME ' OF THE 'SPECIFIED PREVIOUS YEAR'. THE FIRST CLAUSE (I) REF ERS TO INCOME OF THE SPECIFIED PREVIOUS YEAR REPRESENTED BY - (I) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUA BLE ARTICLE OR THING, OR (II) ANY ENTRY IN THE BOOKS OF ACCOUNTS OR OTHER DO CUMENTS OR TRANSACTIONS FOUND IN THE COURSE OF SEARCH U/S 132 OF THE ACT AN D WAS NOT RECORDED IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR TRANSACTIONS MAINTAINED IN TH E NORMAL COURSE RELATING TO SUCH PREVIOUS YEAR. ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 10 THE SECOND CLAUSE (II) REFERS TO INCOME OF THE SPEC IFIED PREVIOUS YEAR REPRESENTED, EITHER WHOLLY OR PARTLY, BY AN ENTRY IN RESPECT OF AN EXPE NSES RECORDED IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE REL ATING TO THE SPECIFIED PREVIOUS YEAR WHICH IS FOUND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED. 4.2 IT IS ALSO SUBMITTED THAT IN THE FIRST CLAUSE T HE UNDISCLOSED INCOME IS REPRESENTED BY AN ASSET OR AN ENTRY IN THE BOOKS OF ACCOUNTS OR DOCUM ENTS MAINTAINED FOR SUCH PREVIOUS YEAR, WHEREAS IN THE SECOND CLAUSE THE UNDISCLOSED INCOME IS REPRESENTED BY SOME FALSE ENTRY OF EXPENSES RECORDED IN THE BOOKS OF ACCOUNTS OR DOCUM ENTS OF THE SPECIFIED PREVIOUS YEAR. THUS IN CLAUSE (I) AND CLAUSE (II) OF EXPLANATION (C) TO SECTION 271AAB TWO DIFFERENT WORDS BEING ' PREVIOUS YEAR ' AND 'SPECIFIED PREVIOUS YEAR' HAVE BEEN USED. IT IS SUBMITTED THAT WHEN DIFFERENT WORDS OR PHRASES ARE USED AT DIFFERENT PL ACES MORE PARTICULARLY IN THE SAME SECTION OF THE STATUTE, IT CARRIES DIFFERENT INTERPRETATION AN D DIFFERENT MEANING OF THE SAME. DIFFERENT WORDS OR PHRASES USED AT DIFFERENT PLACES IN SECTIO N 271AAB HAVE BEEN HIGHLIGHTED TO EXPLAIN THE MEANING OF THE TWO PHRASES USED AT TWO PLACES. 4.3 THE APPELLANT REFERS TO THE JUDGEMENT OF HON'BL E ANDHRA PRADESH HIGH COURT IN THE CASE OF MADHUCON PROJECTS LTD. VS. CCE FOR SETTLEMENT CO MMISSION [2016] 72 TAXMANN.COM 71 (AP), WHICH PROVIDES AT PARA 50 THAT TWO DIFFERENT EXPRESSIONS IN A STATUTE MUST BE CONSTRUED TO CARRY DIFFERENT MEANINGS. 4.4 THE RELEVANCE OF THE PHRASE ' IN WHICH SEARCH WAS CONDUCTED ' USED IN DEFINITION OF ' SPECIFIED PREVIOUS YEAR ' WOULD BE FOUND FROM READING OF CLAUSE (II) OF EXP LANATION (C) BELOW SECTION 271AAB OF THE ACT. THERE THE WORDS ' SPECIFIED PREVIOUS YEAR ' HAS BEEN USED FOR THE PURPOSES OF LEVY OF PENALTY UNDER SECTION 2 71AAB OF THE ACT. THUS IF IT IS FOUND THAT THE ASSESSEE HAS MADE SOME CLAIM OF BOGUS EXPENDITU RE IN THE BOOKS OF ACCOUNTS OF THE YEAR IN WHICH SEARCH IS CONDUCTED AND/OR IN THE BOOKS OF ACCOUNTS OF THE PREVIOUS YEAR FOR WHICH THE PREVIOUS YEAR HAS ENDED BUT THE DUE DATE OF FUR NISHING THE RETURN OF INCOME HAS NOT EXPIRED AND THE ASSESSEE HAS NOT FURNISHED THE RETU RN OF INCOME, IN THOSE CASES PENALTY COULD BE LEVIED IN AS MUCH AS THE PHRASE ' SPECIFIED PREVIOUS YEAR ' HAS BEEN USED IN CLAUSE (II) TO EXPLANATION (C) BELOW SECTION 271AAB OF THE ACT. 4.5 ON THE OTHER HAND THE WORDS SUCH PREVIOUS YEAR HAVE BEEN USED IN CLAUSE (I) OF EXPLANATION (C) TO SECTION 271MB OF THE ACT. THE WO RD ' PREVIOUS YEAR ' HAS BEEN DEFINED IN SECTION 3 OF THE INCOME TAX ACT, 1961 AS UNDER: '3. FOR THE PURPOSES OF THIS ACT, ' PREVIOUS YEAR ' MEANS THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR: PROVIDED THAT, IN THE CASE OF A BUSINESS OR PROFESS ION NEWLY SET UP, OR A SOURCE OF INCOME NEWLY COMING INTO EXISTENCE, IN THE SAID FIN ANCIAL YEAR, THE PREVIOUS YEAR SHALL BE THE PERIOD BEGINNING WITH THE DATE OF SETT ING UP OF THE BUSINESS OR PROFESSION OR, AS THE CASE MAY BE, THE DATE ON WHICH THE SOURC E OF INCOME NEWLY COMES INTO EXISTENCE AND ENDING WITH THE SAID FINANCIAL YEAR.' THUS ' PREVIOUS YEAR ' AND 'SPECIFIED PREVIOUS YEAR' CARRY DIFFERENT MEA NINGS FOR TWO DIFFERENT SITUATIONS AS STATED HEREIN ABOVE. THE WO RDS 'PREVIOUS YEAR' HAS BEEN USED IN CLAUSE (I) OF EXPLANATION (B) OF SECTION 271AAB OF THE ACT TO MEAN THE PREVIOUS YEAR WHICH HAS ENDED BEFORE THE DATE OF SEARCH FOR WHICH THE RETURN OF INCOME HAS NOT BEEN FURNISHED BY THE ASSESSEE AND THE DUE DATE OF FURNISHING THE RETURN OF INCOME HAS NOT BEEN EXPIRED. IF THE STATUTE INTENDED TO LEVY P ENALTY UNDER SECTION 271AAB OF THE ACT IN RESPECT OF MONEY, BULLION, JEWELLERY OR OTHE R VALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENT RE CORDED IN THE BOOKS OF ACCOUNTS IN RESPECT OF THE PREVIOUS YEAR IN WHICH SEARCH WAS CO NDUCTED THEN IN CLAUSE (I) OF EXPLANATION (B) OF SECTION 271MB THE WORDS ' SPECIFIED PREVIOUS YEAR ' WOULD HAVE BEEN USED WHICH WORDS HAVE BEEN USED IN CLAUSE (II) OF EXPLANATION (B) OF SECTION 271AAB OF THE ACT. ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 11 13. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO R IVAL CONTENTIONS. IT TRANSPIRES FROM THE CASE FILE FIRST OF ALL THAT THE ASSESSEES AUTHORIZ ED SIGNATORY, SHRI NARAYAAN PRASAD AGARWALA HAD MADE THE IMPUGNED ADDITIONAL INCOME DISCLOSURE TO THE ADIT(INV) THAT THE SAID INCOME WAS IN THE NATURE OF CASH TO THE TUNE OF 17 LAC IN RELATION TO FINANCIAL YEAR 2012-13 CORRESPONDING TO THE IMPUGNED ASSESSMENT YEAR 2013- 14. WE REITERATE THAT SEARCH IN ISSUE IS DATED 20.12.2012. THE ASSESSEES CASE ADMITTEDLY DO ES NOT COME UNDER THE FORMER DEFINITION OF THE SPECIFIED PREVIOUS YEAR SINCE THE DUE DATE FOR FILING RETURN U/S. 139(1) OF THE ACT FOR PRECEDING ASSESSMENT YEAR 2012-13 HAD ELAPSED ON 30 .09.2012.THE ABOVE CASH SUM; COMING UNDER THE CONNOTATION OF ANY MONEY U/S.271AAB EXP LANATION (C)(I); STOOD ASSESSED IN THE IMPUGNED ASSESSMENT YEAR 2013-14. WE OBSERVE IN THE SE FACTS AND CIRCUMSTANCES THAT THE ASSESSEES ABOVE EXTRACTED ARGUMENT SEEKING TO TAKE ADVANTAGE OF THE SPECIFIED PREVIOUS YEAR DEFINITION VIS-A-VIS UNDISCLOSED INCOME DECLA RED DOES NOT CARRY ANY SUBSTANCE. 14. LASTLY COMES ASSESSEES RELIANCE OF THIS TRIBUN AL CO-ORDINATE BENCHS DECISION IN SANJAY DATTATRAY KAKADE VS. ACIT ITA NO.932/PUN/2013 . LEARNED CO-ORDINATE BENCH DEALT WITH A SEARCH DATED 11.02.2009 CONCLUDED ON 03.04.2009 WHE REIN THE ASSESSING OFFICER HAD INVOKED SEC. 271AAA FOR ASSESSMENT YEAR 2009-10. THE LEARNE D CO-ORDINATE BENCH HELD IN THESE FACTS AND CIRCUMSTANCES THAT SPECIFIED PREVIOUS YEAR CO ULD NOT BE TAKEN TO BE ASSESSMENT YEAR 2009-10 AS FOLLOWS:- 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE ACTION U/S.132 OF THE ACT WAS TAKEN UPON THE ASSESSEE ON 11-02-2009. RETURN WAS FILED ON 30.09.2010 DECLARING TOTAL INCOME OF RS.26,21,24,080/-. THE AO ASSESSED THE TOTAL INCOME AT RS.28,20,70,090/-. PENALTY OF RS.57,70,620/- WAS IM POSED U/S.271 AAA ON THE UNDISCLOSED INCOME OF RS.5,77,06,205/-. THE ID. CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE AND ALSO MADE AN ENHANCEMENT OF PENALTY ON A FURTHER INCOME OF RS.2,07,46,005/-, ON WHICH THE AO HAD CHOSEN NOT TO IMPOSE PENALTY UNDER THIS SECTION. AGGRIEVED THEREBY, THE ASSESSEE IS IN APPE AL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THR OUGH THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE RAISED CERTAIN GROUNDS IN THE MEMORANDUM OF APPEAL. THEREAFTER, CERTAIN ADDITIONAL GROUNDS WERE FILED AND EVENTUALL Y MODIFIED ADDITIONAL GROUNDS OF APPEAL WERE FILED, CHALLENGING THE IMPUGNED ORDER O N CERTAIN LEGAL ISSUES AS WELL AS ON MERITS. 4. WE WILL FIRST ESPOUSE THE LEGAL ISSUES URGED ON BEHALF OF THE ASSESSEE IN SERIATIM. THE FIRST LEGAL ISSUE TAKEN UP BY THE ID. AR IS THA T THE PENALTY U/S.271 AAA BE DELETED AS THE SAME CAN BE IMPOSED ONLY IN RESPECT OF 'SPEC IFIED PREVIOUS YEAR' AND THE ASSESSMENT YEAR 2009-10 UNDER CONSIDERATION, CANNOT BE SO CONSTRUED. IN HIS OPINION, THE ASSESSMENT YEAR 2008-09 WAS THE CORRECT 'SPECIF IED PREVIOUS YEAR' IN TERMS OF EXPLANATION (B)(I) TO SECTION 271AAA OF THE ACT AND FURTHER THAT SUB-CLAUSE (II) OF THE EXPLANATION (B) WAS NOT ATTRACTED IN THE PRESENT CA SE. THIS CONTENTION WAS STRONGLY COUNTERED BY THE ID. DR. 5. IT IS SEEN FROM THE ASSESSMENT ORDER THAT THE SE ARCH IN THIS CASE WAS INITIATED ON 11- 02-2009. THE ID. AR HAS INVITED OUR ATTENTION TOWAR DS THE LAST PANCHNAMA, A COPY OF WHICH HAS BEEN PLACED ON PAGE 19 ONWARDS OF THE PAP ER BOOK, WHICH IS DATED 03-04- 2009. THE DATES OF INITIATION AND CONCLUSION OF SEA RCH HAVE NOT BEEN DENIED ON BEHALF OF THE REVENUE. IT IS THUS PALPABLE THAT THE SEARCH IN THIS CASE COMMENCED ON 11-02- 2009, WHICH IS PRIOR TO THE CLOSURE OF THE FINANCIA L YEAR ENDING 31-03-2009 AND COMPLETED ON 03-04-2009, WHICH IS AFTER THE CLOSURE OF THE FINANCIAL YEAR ENDING 31- 03-2009. THE QUESTION WHICH LOOMS LARGE BEFORE US I S TO DETERMINE ' SPECIFIED PREVIOUS YEAR ' IN TERMS OF EXPL. (B)(I) TO SECTION 271 AAA OF TH E ACT, WHICH IN THE OPINION OF THE ID. AR SHOULD BE RECKONED FROM THE D ATE OF COMMENCEMENT OF SEARCH, ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 12 I.E. 11-02-2009, WHEREAS THE REVENUE IS CONTENDING THAT THE SAME SHOULD BE CONSIDERED FROM 03-04-2009, BEING THE DATE ON WHICH THE SEARCH WAS CONCLUDED. IN ORDER TO APPRECIATE THE RIVAL CONTENTIONS, IT WOULD BE APT TO NOTE DOWN THE DEFINITIONS CONTAINED IN EXPLANATION BELOW SUB-SECTION (4) OF S ECTION 271AAA, WHICH READ AS UNDER :- 'EXPLANATION.-FOR THE PURPOSES OF THIS SECTION,- (A) ' UNDISCLOSED INCOME ' MEANS- (I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRE SENTED, EITHER WHOLLY OR PARTLY, BY ANY MONEY, BULLION, JEWELLERY OR OTHER V ALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENT S OR TRANSACTIONS FOUND IN THE COURSE OF A SEARCH UNDER SECTION 132, WHICH HAS - (A) NOT BEEN RECORDED ON OR BEFORE THE DATE OF SEAR CH IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PREVIOUS YEAR; OR (B) OTHERWISE NOT BEEN DISCLOSED TO THE CHIEF COMMI SSIONER OR COMMISSIONER BEFORE THE DATE OF SEARCH; OR (II) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPR ESENTED, EITHER WHOLLY OR PARTLY, BY ANY ENTRY IN RESPECT OF AN EXPENSE RECORDED IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO THE SPECIFIED PREVIOUS YEAR WHICH IS FOUND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED; (B) ' SPECIFIED PREVIOUS YEAR ' MEANS THE PREVIOUS YEAR- (I) WHICH HAS ENDED BEFORE THE DATE OF SEARCH, BUT THE DATE OF FILING THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 FOR SUCH YEAR HAS NOT EXPIRED BEFORE THE DATE OF SEARCH AND THE ASSESSEE HAS NOT FURNISHED THE RETURN OF INCOME FOR THE PREVIOUS YEAR BEFORE THE SAID DATE; OR (II) IN WHICH SEARCH WAS CONDUCTED.]' (SOME PARTS ITALICIZED BY US) 6. SUB-SECTION (1) OF SECTION 271 AAA PROVIDES THAT PENALTY SHALL BE COMPUTED @ 10% OF THE UNDISCLOSED INCOME OF THE ' SPECIFIED PREVIOUS YEAR ' WHERE SEARCH IS INITIATED AFTER 01-06-2007 BUT BEFORE 01-07-2012. S UB-SECTION (3) OF SECTION 271 AAA PROVIDES THAT IN CASE PENALTY IS IMPOSED UNDER SUB- SECTION (1), THEN THE PROVISIONS OF SECTION 271(1)(C) SHALL NOT APPLY IN RESPECT OF SUC H UNDISCLOSED INCOME. WHEN WE CONSIDER THE PROVISIONS OF SECTION 271(1)(C) IN JUX TAPOSITION TO SECTION 271AAA, IT IS MANIFESTED THAT IN CASE OF A SEARCH, PENALTY IS IMP OSED U/S.271AAA ON THE UNDISCLOSED INCOME OF THE ' SPECIFIED PREVIOUS YEAR ' AND PENALTY U/S.271(1)(C) IS IMPOSED WITH REFERENCE TO OTHER YEARS COVERED UNDER SEARCH ASSESSMENTS. SEARCH IN THE EXTANT CASE WAS CONDUCTED IN THE YEAR 2009, WHI CH UNDOUBTEDLY FALLS WITHIN THE PERIOD STIPULATED IN SUB-SECTION (1) OF SECTION 271 AAA. IN SUCH A SCENARIO, PENALTY IS LIABLE TO BE IMPOSED ON UNDISCLOSED INCOME OF THE ' SPECIFIED PREVIOUS YEAR' U/S 271 AAA ALONE. THE AO HAS TREATED ASSESSMENT YEAR 2009-10 AS THE ' SPECIFIED PREVIOUS YEAR' AND IMPOSED THE INSTANT PENALTY. 7. NOW THE QUESTION ARISES ABOUT THE DETERMINATION OF THE 'SPECIFIED PREVIOUS YEAR' AS PER SUB-CLAUSE (I) OF THE EXPLANATION (B) TO SECTIO N 271AAA, WHICH PROVIDES THAT A 'SPECIFIED PREVIOUS YEAR' MEANS A 'PREVIOUS YEAR' W HICH HAS ENDED BEFORE THE DATE OF SEARCH, BUT THE DATE OF FILING THE RETURN OF INCOME U/S.139(L) FOR SUCH YEAR HAS NOT EXPIRED BEFORE THE DATE OF SEARCH AND THE ASSESSEE HAS NOT FURNISHED HIS RETURN OF INCOME FOR THAT PREVIOUS YEAR BEFORE THE SAID DATE. THE CONTROVERSY IN THIS REGARD IS TO FIND OUT THE MEANING OF THE TERMS ' DATE OF SEARCH '. WHEREAS THE CASE OF THE ASSESSEE IS THAT THE EXPRESSION ' DATE OF SEARCH ' AS EMPLOYED IN EXPL. (B) (I) MEANS THE DATE OF INITIATION OR COMMENCEMENT OF SEARCH, THE REVENUE H AS CANVASSED A VIEW THAT IT REFERS TO THE DATE OF CONCLUSION OR COMPLETION OF SEARCH. IF WE CONSIDER THE DATE OF INITIATION AS THE DATE OF SEARCH, WHICH IN THE INSTANT CASE IS 11-02-2009, THEN THE ' SPECIFIED ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 13 PREVIOUS YEAR ' WOULD BE THE PREVIOUS YEAR WHICH ENDED ON 31-03-2 008 AND THE RELEVANT ASSESSMENT YEAR WOULD BE 2008-09 AND IF WE GO WITH THE REVENUE AND TAKE THE DATE OF CONCLUSION OF SEARCH AS THE DATE OF SEA RCH, WHICH IS 3.4.2009, THEN THE ' SPECIFIED PREVIOUS YEAR ' WOULD BE THE PREVIOUS YEAR WHICH ENDED ON 31-03-2 009 AND THE RELEVANT ASSESSMENT YEAR WOULD BE 2009-10. 8. NORMALLY, THERE ARE THREE STAGES IN CASE OF A SE ARCH. FIRST IS THE INITIATION OF PROCESS OF SEARCH; SECOND IS THE INITIATION OF SEARCH; AND THIRD IS CONCLUSION OF SEARCH. SECTION 132(1) OF THE ACT PROVIDES THAT WHERE PRINCIPAL DIR ECTOR GENERAL ETC., IN CONSEQUENCE OF THE INFORMATION IN HIS POSSESSION, HAS REASON TO BELIEVE THE EXISTENCE OF ONE OF THE THREE CONDITIONS, SUCH AS, ANY PERSON IS IN POSSESS ION MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OF THING ETC. AND SUCH MONEY , BULLION, JEWELLERY ETC., REPRESENTS EITHER WHOLLY OR PARTLY INCOME WHICH HAS NOT BEEN O R WOULD NOT BE DISCLOSED, THEN HE MAY AUTHORIZE ANY ADDITIONAL DIRECTOR ETC., BEING T HE AUTHORIZED OFFICER, TO ENTER AND SEARCH ANY BUILDING, PLACE, VESSEL ETC., WHERE HE H AS REASON TO SUSPECT THAT SUCH UNDISCLOSED MONEY, BULLION, JEWELLERY OR OTHER VALU ABLE ARTICLE OR THINGS ARE KEPT. THIS IS THE STAGE OF AUTHORIZATION OF SEARCH BY THE PRINCIPAL DIRECTOR GENERAL ETC., WHICH IS THE FIRST STAGE IN OUR DISCUSSION, BEING, THE INITIATION OF PROCESS OF SEARCH. PURSUANT TO SUCH FIRST STAGE, THAT IS, AUTHORIZATIO N OF SEARCH ACTION BY THE PRINCIPAL DIRECTOR GENERAL ETC., THE AUTHORIZED OFFICER PHYSI CALLY ENTERS THE BUILDING ETC. AND CARRIES OUT THE ACTUAL SEARCH. THIS IS THE SECOND S TAGE IN OUR DISCUSSION, WHICH IS INITIATION OF SEARCH. WHEN THE ENTIRE SEARCH IS CON CLUDED BY THE AUTHORIZED OFFICER AND A FINAL PANCHNAMA IS DRAWN, THEN WE ENTER THE THIRD STAGE, THAT IS, THE SEARCH IS CONCLUDED. 9. THE LEGISLATURE HAS USED THE WORD ' SEARCH ' PRECEDED BY THE WORDS ' INITIATION OF ' OR ' CONCLUSION OF AT DIFFERENT PLACES TO CLEARLY CONVEY THAT IT IS R EFERRING TO THE DATE OF INITIATION OF SEARCH OR THE CONCLUSION OF SEARCH, A S THE CASE MAY BE. FOR EXAMPLE, SECTION 153A DEALING WITH ASSESSMENT IN CASE OF SEA RCH OR REQUISITION SPECIFICALLY USES THE EXPRESSION 'INITIATION OF SEARCH' IN SECON D PROVISO TO SUB-SECTION (1). SIMILARLY, SECTION 153C DEALING WITH THE ASSESSMENT OF INCOME OF ANY OTHER PERSON USES THE EXPRESSION ' INITIATION OF SEARCH ' IN FIRST PROVISO TO SUB-SECTION (1). ON THE CONTRARY, SECTION 153B(2) PROVIDES THAT THE AUTHORI ZATION SHALL BE DEEMED TO HAVE BEEN EXECUTED IN THE CASE OF SEARCH, ON THE 'CONCLU SION OF SEARCH' AS RECORDED IN THE LAST PANCHNAMA. SECTION 158BE SETTING OUT TIME LIMI T FOR COMPLETION OF BLOCK ASSESSMENT ALSO PROVIDES UNDER SUB-SECTION (2) THAT THE AUTHORIZATION SHALL BE DEEMED TO HAVE BEEN EXECUTED IN THE CASE OF SEARCH ON THE ' CONCLUSION OF SEARCH '. THUS, IT IS OVERT THAT THE PARLIAMENT HAS RECOGNIZED THE EXPRES SION 'INITIATION OF SEARCH' AS DISTINCT FROM ' CONCLUSION OF SEARCH ' AND USED SUCH EXPRESSIONS AT THE APPROPRIATE PLAC ES AS DEEMED NECESSARY. 10. REVERTING TO THE EXPLANATION TO CLAUSE (B)(I) T O SECTION 271AAA, WE FIND THAT THE LEGISLATURE HAS SIMPLY USED THE EXPRESSION ' DATE OF SEARCH ' AND THE SAME IS NOT QUALIFIED BY THE WORDS 'INITIATION OF' OR ' CONCLUSION OF '. THE 'SPECIFIED PREVIOUS YEAR' IN THE EXTANT CASE VARIES WITH PRE-FIXING OF THE WO RDS ' INITIATION OF ' OR ' CONCLUSION OF ' TO THE WORD ' SEARCH ' AS USED IN THE PROVISION. THE WHEREAS THE ASSESSE E IS BATTLING FOR PRE-FIXING THE WORDS 'INITIATION OF' BEFORE THE WOR D ' SEARCH ' IN THE PROVISION, THE REVENUE IS STRONGLY PITCHING FOR USING THE WORDS ' CONCLUSION OF '. IN THE ABSENCE OF ANY EXPRESS USAGE OF THE APPROPRIATE PRE-FIX TO THE WORD 'SEARCH' IN THE LANGUAGE OF THE EXPLANATION (B)(I) TO SECTION 271AAA OF THE ACT, WE NEED TO DISCOVER THE SAME ON A HARMONIOUS READING OF THE PROVISION IN ENTIRETY. WH EN SO UNDERSTOOD AND ON TAKING A HOLISTIC VIEW OF THE MATER, IT TURNS OUT THAT THE L EGISLATURE INTENDED TO MEAN THE 'DATE OF SEARCH' IN SUB-CLAUSE (I) OF CLAUSE (B) OF THE EXPLANATION TO SECTION 271AAA AS THE ' DATE OF INITIATION OF SEARCH ' . WE FORTIFY OUR VIEW BY SIMULTANEOUSLY READING CLAUSES (A) AND (B) OF THE EXPLANATION TO SECTION ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 14 271AAA DEFINING ' UNDISCLOSED INCOME ' AND ' SPECIFIED PREVIOUS YEAR '. FIRSTLY, IT IS PERTINENT TO NOTE THAT SIMILAR EXPRESSION, NAMELY, ' BEFORE THE DATE OF SEARCH ' HAS BEEN USED IN BOTH THE CLAUSES, VIZ., (A) AND (B)(I) OF T HE EXPLANATION. WE HAVE SET OUT SUPRA THE DEFINITION OF ' UNDISCLOSED INCOME' IN THE EXPLANATION (A) IN TWO SUB- CLAUSES (I) AND (II), DEALING WITH BROADER CATEGORI ES OF ANY INCOME REPRESENTED BY UNEXPLAINED ASSETS ETC. AND ANY INCOME REPRESENTED BY FALSE EXPENSES. WE ARE RESTRICTING OURSELVES TO SUB-CLAUSE (I), WHICH DEFI NES 'UNDISCLOSED INCOME' TO MEAN ANY INCOME REPRESENTED BY ANY MONEY, BULLION, JEWEL LERY ETC. FOUND IN THE COURSE OF A SEARCH WHICH HAS: (A) NOT BEEN RECORDED ON OR BEFOR E THE DATE OF SEARCH IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NOR MAL COURSE RELATING TO SUCH PREVIOUS YEAR; OR (B) OTHERWISE NOT BEEN DISCLOSED TO THE CHIEF COMMISSIONER OR COMMISSIONER BEFORE THE DATE OF SEARCH'. THE EXPRES SION 'BEFORE THE DATE OF SEARCH, IN EXPLANATION (B)(I) HAS ALSO BEEN USED WITHOUT ANY P RE-FIX OF 'INITIATION OF' OR 'CONCLUSION OF' . ON AN ANALYSIS OF THE EXPRESSION 'BEFORE THE DATE OF SEARCH ' IN THE DEFINITION OF ' UNDISCLOSED INCOME ', IT AMPLY TRANSPIRES THAT IT REFERS TO THE DATE O F ' INITIATION OF THE SEARCH '. OUR REASONING IS THAT PART (A) IN CLAUSE (I) OF THE EXPLANATION (A) REFERS TO THE UNDISCLOSED INCOME ETC. WHICH HAS NOT BEEN RECORDED IN THE BOOKS OF ACCOUNT BEFORE THE DATE OF SEARCH. IT NECESSARILY HAS TO BE AN INC OME WHICH IS NOT FOUND TO BE RECORDED AT THE TIME OF INITIATION OF SEARCH AND IT CANNOT BE AN INCOME WHICH IS NOT FOUND TO BE RECORDED AT THE TIME OF CONCLUSION OF S EARCH. ONCE AN ITEM OF INCOME NOT RECORDED IS FOUND AT THE TIME OF INITIATION OF SEAR CH, IT WILL REMAIN UNDISCLOSED EVEN IF THE ASSESSEE DURING THE COURSE OF SEARCH RECORDS IT IN ITS BOOKS OF ACCOUNT. IF WE INTERPRET IT AS REFERRING TO THE DATE OF CONCLUSION OF SEARCH, THEN ANYONE CAN EASILY GO SCOT FREE BY RECORDING IN HIS BOOKS OF ACCOUNT THE UNDISCLOSED INCOME FOUND DURING THE COURSE OF SEARCH, BEFORE THE CONCLUSION, THEREB Y MAKING IT AS DISCLOSED INCOME, WHICH PROPOSITION IS PATENTLY INCORRECT. ONCE AN IT EM OF INCOME IS FOUND, WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNT UP TO THE DATE OF INITIATION OF SEARCH, THE SAME HAS TO BE OBVIOUSLY CHARACTERIZED AS UNDISCLOSED INCOME. S IMILAR POSITION FOLLOWS BY READING PART (B) IN CLAUSE (I) OF THE EXPLANATION ( A), WHICH ALSO REFERS TO THE UNDISCLOSED ITEM OF INCOME WHICH HAS OTHERWISE BEEN NOT DISCLOSED TO THE PRINCIPAL CF. CIT ETC. ' BEFORE THE DATE OF SEARCH '. HERE AGAIN, IF WE CONSTRUE THE ' DATE OF SEARCH ' AS THE DATE OF CONCLUSION OF SEARCH, IT WOULD MEA N THAT ANY UNDISCLOSED INCOME FOUND DURING THE COURSE OF SEARCH WOULD BECO ME A DISCLOSED INCOME, IF THE ASSESSEE DISCLOSES IT TO THE COMPETENT AUTHORITY AT ANY TIME DURING THE CONTINUATION OF SEARCH. THUS, IF ANY INCOME BY WAY OF CERTAIN MONEY , BULLION, JEWELLERY ETC. IS FOUND DURING THE COURSE OF SEARCH WHICH HAS NOT BEEN RECO RDED IN THE BOOKS OF ACCOUNT, THE ASSESSEE CANNOT ESCAPE THE CLUTCHES OF SECTION 271A AA SIMPLY BY RECORDING OR DISCLOSING THE SAME AFTER THE INITIATION BUT BEFORE THE CONCLUSION OF SEARCH. OBVIOUSLY, THIS CANNOT BE THE INTENTION OF THE LEGISLATURE TO CONSTRUE THE EXPRESSION ' DATE OF SEARCH ' GIVEN IN CLAUSE (A) OF THE EXPLANATION TO MEAN TH E ' DATE OF CONCLUSION OF SEARCH '. IT HAS TO BE THE 'DATE OF INITIATION OF SEARCH' SO THAT ANY INCOME REPRESENTED BY ANY MONEY, BULLION, JEWELLERY ETC. FOUND IN THE COU RSE OF SEARCH BUT NOT RECORDED IN THE BOOKS IS CONSIDERED AS ' UNDISCLOSED INCOME' . THUS IT BECOMES CRYSTAL CLEAR THAT THE EXPRESSION ' BEFORE THE DATE OF SEARCH ' USED IN CLAUSE (A) OF THE EXPLANATION REFERS TO THE ' DATE OF SEARCH ' AS THE DATE OF ' INITIATION OF SEARCH ' AND NOT THE DATE OF ' CONCLUSION OF SEARCH '. AS THE SAME EXPRESSION OF ' BEFORE THE DATE OF SEARCH ' HAS BEEN USED IN THE DEFINITION OF ' SPECIFIED PREVIOUS YEAR ', WE HOLD THAT ON A TUNEFUL READING OF CLAUSES (A) AND (B) OF THE EXPLANATION T O SECTION 271AAA, THE ' DATE OF SEARCH ' IN THE EXPLANATION (B) IS ALSO THE ' DATE OF INITIATION OF SEARCH AND NOT THE ' DATE OF INITIATION OF SEARCH ' AS THE DATE OF SEARCH , THE ' SPECIFIED PREVIOUS YEAR ' IN TERMS OF SUB-CLAUSE (I) OF CLAUSE (B) OF EXPLANATIO N TO SECTION 271AAA BECOMES THE YEAR ENDING 31-03-2008, BEING, THE PREVIOUS YEAR WH ICH ENDED BEFORE THE DATE OF SEARCH ON 11-02-2009. GOING BY THIS INTERPRETATION OF THE PROVISION, THE A.Y. 2009-10 ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 15 CANNOT BE CONSIDERED AS THE 'SPECIFIED PREVIOUS YEA R'. THE CONTENTION OF THE ASSESSEE IS, ERGO, UPHELD. 15. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO A SSESSEES ABOVE LAST ARGUMENT. IT EMERGES FROM THE LEARNED CO-ORDINATE BENCHS DECISION THAT THE SAID ASSESSEE HAD MADE OUT A CASE OF NON-APPLICABILITY OF ASSESSMENT YEAR 2009-10 IN A S EARCH CONDUCTED ON 11.02.2009 WHEREAS THE INSTANT TAXPAYERS CASE MAKES IT CLEAR THAT SP ECIFIED PREVIOUS YEAR IN ITS CASE U/S. 271AAB EXPLANATION (B)(II) SQUARELY APPLIES IN GIVE N FACTS AND CIRCUMSTANCES OF THE CASE. WE WISH TO REPEAT HERE AT THE COST OF BREVITY THAT IMP UGNED SEARCH IS DATED 20.12.2012. THE ASSESSEES LAST DATE OF FILING RETURN U/S 139(1) WA S UPTO ON 30.09.2012. THE SPECIFIED PREVIOUS YEAR THEREFORE HAS BEEN RIGHTLY TAKEN IN THE INSTANT CASE TO BE FINANCIAL YEAR 2012- 13 UNDER THE ABOVE STATUTORY PROVISION. WE CONCLUDE IN THESE FACTS THAT CIT(A) HAS RIGHTLY SUSTAINED THE IMPUGNED PENALTY OF 17 LAC QUA THE IMPUGNED CASH SUM DECLARED DURING TH E COURSE OF SEARCH AS UNDISCLOSED INCOME UNDER EXPLAN ATION (C) OF THE ACT. THE SECOND ASSESSEES INSTANT CROSS OBJECTION 97/KOL/2017 CHAL LENGING CORRECTNESS OF CIT(A)S ACTION SUSTAINING PENALTY OF 17 LAC FAILS THEREFORE. WE ADOPT THE ABOVE DETAILED REASONING MUTATIS MUTAN DIS TO CONFIRM THE CIT(A)S FINDINGS IN REVENUES APPEAL ITA NO.225/KOL/2017. 7. NEXT COME ASSESSEES CROSS OBJECTION NO.105/KOL/2018 CHALLENGING VALIDITY OF THE IMPUGNED PENALTY PROCEEDINGS ON THE GROUND THAT THE ASSESSING OFFICERS PENALTY SHOW CAUSE NOTICE DID NOT SPECIFY THE SPECIFIC CHAR GE / CLAUSE OF SEC. 271AB OF THE ACT. MR. TIBREWAL CONTENDS THAT THE SAID CO-ORDINAT E BENCH HAS NOT TAKEN INTO ACCOUNT HON'BLE JURISDICTIONAL HIGH COURTS DECISION IN PR.CIT VS. M/S SRMB SRIJAN LTD . ITAT 8 OF 2019 GA 188-189 OF 2019 HOLDING THAT THE PENALTY IN QUESTION COULD NOT BE CONFIRMED UNLESS THE ASSESSING OFFICERS SHOW-CAUSE NOTICE WAS VERY MUCH SPECIFIC QUOTING THE TAXPAYERS DEFAULT REGARDING UNDISCLOSE D INCOME U/S. 271AAB OF THE ACT. HIS FURTHER CASE IS THAT ASSESSING OFFICER HAD ALSO NOT MADE IT CLEAR AS TO WHETHER THE ASSESSEES DEFAULT PERTAINED TO THE SPECIFIED PREVI OUS YEAR WITHIN THE MEANING OF EXPLANATION (B) TO SEC. 271AAB OF THE ACT. WE ARE N EXT REMINDED THAT HON'BLE JURISDICTIONAL HIGH COURT HAS TAKEN NOTE OF HON'BLE APEX COURTS DECISION TO THIS EFFECT IN AMRIT FOODS VS. COMMISSIONER OF CENTRAL EXCISE (2005) 13 SSC 419 IN THE NATURE OF A BINDING PRECEDENT. WE FIND NO MERIT IN ASSESSE ES ARGUMENTS. IT HAS COME ON RECORD THAT THE REVENUE HAS SUFFICIENTLY PROVED RIG HT FROM THE BEGINNING THAT THE ASSESSEES UNDISCLOSED INCOME IS BASED ON CORROBORA TIVE MATERIAL FOUND DURING THE COURSE OF SEARCH RELATIONS TO IMPUGNED ASSESSMENT Y EAR 2013-14 ONLY. LEARNED CO- ORDINATE BENCH HAS ALREADY TAKEN SUFFICIENT NOTE OF ALL THESE JUDICIAL PRECEDENTS IN ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 16 IDENTICAL BACKDROP OF FACTS. HON'BLE APEX COURTS DECISION IN SANDEEP CHADAK CASE (SUPRA) HAS ADMITTEDLY DECLINED THE VERY ARGUMENT C HALLENGING VALIDITY OF SEC. 271AAB PROCEEDINGS IN A SHOW CAUSE INDICATING SEC. 271(1)(C) ACTION. WE DO NOT FIND ANY PREJUDICE CAUSED TO THE ASSESSEE ONCE THE ASSESSING OFFICER HAD INITIATED SEC. 271AAB PROCEEDINGS TO THE INSTANT LEAD CASE. WE REJ ECT THE ASSESSEES CO NO. 105/KOL/2018 THEREFORE AS WELL. 8. SAME ORDER TO FOLLOW IN REVENUES REMAINING APPE AL(S) AS WELL AS ASSESSEES CROSS OBJECTION(S). WE MAKE IT CLEAR BEFORE PARTING THAT WE HAVE AFFIRMED THE CIT(A)S FINDINGS IN ALL THESE CASES DELETING THE IMPUGNED P ENALT(IES) NOT BASED ON ANY CORROBORATIVE EVIDENCE SATISFYING THE RELEVANT PARA METERS OF UNDISCLOSED INCOME ENVISAGED U/S. 271AAB EXPLANATION (C) AND CONFIRM T HE REMAINING COMPONENT THEREOF IN ASSESSEES CROSS OBJECTION(S) WHEREIN THE LOWER A UTHORITIES HAVE FINALIZED PENAL ACTION BASED ON EVIDENCE FOUND / SEIZED DURING THE COURSE OF SEARCH AS PER THE ABOVE STATUTORY EXPLANATION. 9. ALL THESE REVENUES APPEAL(S) AND ASSESSEES CRO SS OBJECTION(S) ARE DISMISSED IN ABOVE TERMS. ORDERED ACCORDINGLY. ORDER PRONOUNCED IN OPEN COURT ON 24/04/2019 SD/- SD/- ( ') (* ') (J.SUDHAKAR REDDY) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS + - 24/04/2019 / KOLKATA ITA NO.214, 153, 223-226/KOL/2017 & 11 COS A. Y. 2013-14 PAGE 17 / COPY OF ORDER FORWARDED TO:- 1. /CO-OBJECTOR-M/S AKSHARA VINIMAY PVT. LTD., 2 ND FLOOR, WATERLOO STREET KOLKATA-69/SHRI RAMAUTAR G ROURISARIA, 10A, SHAKESPEARE SARANI, KOL- 71/M/S INDRADEV VYAPAAR PV T. LTD. 49, BUROTOLLA STREET, KOLKATA-007/ M/S CHAND TIE-UP PVT. LTD./ M/S PASUPATI COMMERCE PVT. LTD./M/S ALISSA NIRMANS PVT. LTD. 91 A/1, BLOCK NO.401, 4 TH FLOOR, AVANI SIGNATURE, PARK STREET, KOLK ATA-16/BINOD KR. MISRA & OTHERS HUF/ MISRA BRICK FIELDS PVT. LTD. ,2 ND FL, 7, WATERLOO STREET, ESPLANADE, KOLKATA-69/SQUOOSH ENTERTAI NMENT (P) LTD. 1, VASUDEVA BUILDING, ISHWAR GANGULLY ST.KOLKATA-26 /LIKEWISH VINIMAY PVT. LTD., 3 RD FL, R.NO.14, 29A, RABINDRA SARAN I, KOLKATA-73/ SKIPPER FURNISHING PVT. LTD., 46/31/1, GARIAHAT ROAD, KOLKAT-29 2. ' /REVENUE-DCIT, CC-1(4)/ACIT, CC-2(3), AAYAKAR BHAW AN, POORVA, 110, SHANTIPALLY,KOLKATA- 107 3. . / / CONCERNED CIT 4. / - / CIT (A) 5. 0 **. , . /DR, ITAT, KOLKATA 6. 4 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ .,