DEPUTY COMMISSIONER OF INCOME TAX, KOTA V. SMT. MALTI AGARWAL, KOTA

ITA 1447/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3772 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 12-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: GULSHAN AGARWAL CA DH
• Keywords: Search and seizure; Document seized; Wrong claim; Corroborative evidences; Block assessment; Revised return; Documents seized
• Section: 271(1)(c); 143(3); 153A; 27; 132; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S A, JAIPUR JH FOT; IKY JKO ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1447/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2013-14 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOTA. CUKE VS. SMT. MALTI AGARWAL, 3, J K NAGAR, KOTA, RAJASTHAN. LFKK;H YS[KK LA - @THVKBZVKJ LA - @ PAN/GIR NO.: ACMPA 2697 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA(CIT-DR) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI VIJAY GOYAL (CA) & SHRI GULSHAN AGARWAL (CA) LQUOKBZ DH RKJH[K @ DATE OF HEARING: 28/02/2019 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 22/03/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 01/10/2018 OF LD. CIT(A)-2, UDAIPUR ARISING FROM TH E PENALTY ORDER PASSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (I N SHORT THE ACT) FOR THE A.Y. 2013-14. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) WAS RIGHT IN CANCELLING THE PENALTY OF RS. 8 6,40,913/- LEVIED BY THE A.O. UNDER EXPLANATION 5A TO SECTION 271(1)(C) OF THE INCOME TAX ACT. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) WAS RIGHT IN CANCELLING THE PENALTY BY PLACI NG RELIANCE ON THE DECISION OF THE JAIPUR BENCH OF THE HONBLE ITAT IN ITA NO. 296/JP/2014 IN AJAY TRADERS VS DCIT CENTRAL CIRCLE, ALWAR AND IN 2 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL IGNORING THE LATER DECISION DATED 24/05/2017 IN ITA NO. 141/JP/2016 IN SHRI SHRI RADHA GOVIND LASHKARI JAIPUR VS ACIT, CENTRAL CIRCLE-2, JAIPUR. 2. THE ASSESSEE IS INDIVIDUAL AND BELONGS TO M/S KO TA DALL MILL GROUP. THE ASSESSEE FILED HER RETURN OF INCOME U/S 139(1) OF THE ACT ON 16/10/2013 DECLARING TOTAL INCOME OF RS. 15,87,940/ - ALONGWITH AGRICULTURAL INCOME OF RS. 17,85,149/-. THE ASSESSE E HAS ALSO FILED LONG TERM CAPITAL GAIN ON SALE OF SHARES AMOUNTING TO RS . 2,78,25,000/- AND CLAIMED EXEMPT IT U/S 10(38) OF THE ACT. APART FROM THE DIVIDEND INCOME ON EQUITY SHARES, WHICH WAS ALSO CLAIMED EXEMPTED. THEREAFTER A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CARRIED O UT IN THE CASE OF M/S KOTA DALL MILL GROUP TO WHOM THE ASSESSEE BELONGS O N 02/07/2015. DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS , CERTAIN DOCUMENTS MARKED AS ANNEXURE AS-1 WERE FOUND CONTAINING THE D ETAILS OF LONG TERM CAPITAL GAIN EARNED BY THE ASSESSEE AND HIS FAMILY MEMBERS DURING THE VARIOUS YEARS. IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT, THE ASSESSEE DECLARED AND SURRENDERED THE SAID LONG TER M CAPITAL GAIN ON SALE OF SHARES AS UNDISCLOSED INCOME AND OFFERED TH E SAME FOR TAXATION. IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153A OF THE ACT, THE ASSESSEE DECLARED THE TOTAL INCOME OF RS.2,95,5 2,060/- AND AGRICULTURAL INCOME OF RS. 14,20,207/- INCLUDING TH E SURRENDERED INCOME OF RS. 2,79,64,125/- AS ADMITTED IN THE STATEMENT U /S 132(4) OF THE ACT. THE ASSESSMENT WAS COMPLETED U/S 143(3) READ WITH S ECTION 153A OF THE 3 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL ACT ON 18/05/2018 ON THE TOTAL INCOME OF RS.2,95,52 ,060/- WHICH INCLUDES THE INCOME ADMITTED BY THE ASSESSEE AND SU RRENDERED TO TAX AS UNDISCLOSED INCOME DURING THE SEARCH AND SEIZURE AC TION. SUBSEQUENTLY, THE ASSESSING OFFICER INITIATED THE PENALTY PROCEED INGS U/S 271(1)(C) OF THE ACT IN RESPECT OF THE INCOME SURRENDERED BY THE ASSESSEE OF RS. 2,79,64,125/- AND LEVIED THE PENALTY OF RS. 86,40,9 13/- VIDE ORDER DATED 18/5/2018. 3. THE ASSESSEE CHALLENGED THE ORDER OF THE ASSESSI NG OFFICER LEVYING THE PENALTY U/S 271(1)(C) OF THE ACT BEFORE THE LD. CIT(A) AND CONTENDED THAT THE INCOME SURRENDERED BY THE ASSESSEE IN THE COURSE OF SEARCH AND SEIZURE ACTION WAS ALREADY DISCLOSED IN THE RETURN OF INCOME FILED U/S 139(1) OF THE ACT, THOUGH THE SAME WAS CLAIMED AS E XEMPT U/S 10(38) OF THE ACT, THEREFORE, IT IS NOT A CASE OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCO ME. THE ASSESSEE HAS ALSO CONTENDED THAT EXPLANATION 5A TO SECTION 271(1 )(C) OF THE ACT IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE WHEN THE LON G TERM CAPITAL GAIN WAS ALREADY DECLARED IN THE ORIGINAL RETURN OF INCO ME FILED U/S 139(1) OF THE ACT AND WAS ALSO DULY RECORDED IN THE BOOKS OF ACCOUNT, THEREFORE, THE SAME CANNOT BE TREATED AS CONCEALED INCOME OF T HE ASSESSEE. THE LD. CIT(A) HAS DELETED THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT OF THE GROUND THAT THE ADDITIONAL INCOME SURRENDERED BY TH E ASSESSEE WAS TREATED AS CONCEALED INCOME ONLY ON THE BASIS OF ST ATEMENTS RECORDED 4 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL DURING THE SEARCH DEHORS THE SEIZED MATERIAL, FINDI NG IN THE ASSESSMENT, THEREFORE, THE STATEMENT OF THE ASSESSEE IS NOT SUF FICIENT TO ESTABLISH THAT IT WAS A CONCEALMENT OF PARTICULARS OF INCOME OR FU RNISHING INACCURATE PARTICULARS OF INCOME. AGGRIEVED BY THE IMPUGNED OR DER OF THE LD. CIT(A), THE REVENUE HAS FILED THE PRESENT APPEAL. 4. BEFORE US, THE LD CIT-DR HAS SUBMITTED THAT THOU GH THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAIN FROM SALE OF SHARE S AND CLAIMED THE SAME EXEMPT FROM TAX U/S 10(38) OF THE ACT, HOWEVER , DURING THE COURSE OF SEARCH AND SEIZURE ACTION, IT WAS DISCOVERED THA T THE SAID CLAIM WAS BOGUS AND CONSEQUENTLY THE ASSESSEE DECLARED THE SA ID INCOME AND SURRENDERED TO TAX. THEREFORE, THE WRONG FACTS DECL ARED BY THE ASSESSEE IN THE RETURN OF INCOME FILED U/S 139(1) OF THE ACT WOULD NOT AMOUNT TO DECLARE THE INCOME IN THE ORIGINAL RETURN. THE LD C IT-DR HAS THUS SUBMITTED THAT APART FROM THE LONG TERM CAPITAL GAI N, WHICH WAS SURRENDERED AS UNDISCLOSED INCOME, THE ASSESSEE HAS ALSO SURRENDERED THE AMOUNT OF RS. 9,000/- AS UNDISCLOSED COMMISSION PAID ON THE TRANSACTIONS OF TAKING THE BOGUS ENTRY OF CAPITAL G AIN. HE HAS FURTHER CONTENDED THAT THE SURRENDER IS BASED ON THE INCRIM INATING MATERIAL FOUND AND SEIZED DURING THE SEARCH AND THEREFORE, T HE LD. CIT(A) HAS COMMITTED AN ERROR BY HOLDING THAT THE ASSESSING OF FICER HAS TREATED THE INCOME AS CONCEALMENT ONLY ON THE BASIS OF THE STAT EMENT DEHORS ANY SEIZED MATERIAL. THE ASSESSEE IN HIS STATEMENT RECO RDED U/S 132(4) OF 5 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL THE ACT HAS CLEARLY ADMITTED THE BOGUS CLAIM OF LON G TERM CAPITAL GAIN AND THEREFORE, DISCLOSED THE UNDISCLOSED INCOME. HE NCE, EXPLANATION 5A OF SECTION 271(1)(C) OF THE ACT IS APPLICABLE IN TH E CASE OF THE ASSESSEE WHICH MAKES IT CLEAR THAT IF THE ASSESSING OFFICER IS SATISFIED THAT ANY PERSON HAS CONCEALED THE PARTICULARS OF INCOME OR F URNISHING INACCURATE PARTICULARS OF INCOME OR WHERE IN RESPECT OF ANY FA CTS MATERIAL TO THE COMPUTATION OF TOTAL INCOME OF THE ASSESSEE FAILS T O OFFER AN EXPLANATION OR THE EXPLANATION IS FOUND BY THE ASSESSING OFFICE R TO BE NOT BONAFIDE, THEN THE CASE OF THE ASSESSEE COMES WITHIN THE PURV IEW OF SECTION 271(1)(C) OF THE ACT. THE LD CIT-DR HAS CONTENDED T HAT ONCE THE ASSESSEE HIMSELF HAS ADMITTED THE UNDISCLOSED INCOM E THEN THE CASE OF THE ASSESSEE IS COVERED UNDER THE PROVISIONS OF SEC TION 271(1)(C) READ WITH EXPLANATION 5A OF THE ACT. HE HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 5. ON THE OTHER HAND, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE REVENUE HAS NOT DISPUTED THE FACT THAT THE ASSE SSEE HAS DECLARED LONG TERM CAPITAL GAIN IN THE RETURN OF INCOME FILE D U/S 139(1) OF THE ACT ON 16/10/2013, THOUGH IT WAS CLAIMED AS EXEMPT INCO ME U/S 10(38) OF THE ACT. THE LD AR HAS FURTHER SUBMITTED THAT THE T RANSACTION OF PURCHASE AND SALE OF SHARES WERE DULY RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND THE ASSESSING OFFICER HAS NOT DISTURBE D THE TRANSACTION OF PURCHASE OF SHARES AND SHOWN IN THE BALANCE SHEET A S ON 31/3/2012. 6 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL THE PURCHASE CONSIDERATION AS WELL AS SALE CONSIDER ATIONS HAVE BEEN PAID AND RECEIVED THROUGH BANKING CHANNEL AND ARE INDEPE NDENTLY VERIFIABLE FROM THE BANK STATEMENT. FURTHER THE ASSESSEE PRODU CED ALL THE SUPPORTING DOCUMENTARY EVIDENCE OF PURCHASE AND SAL E OF THESE SHARES THROUGH STOCK EXCHANGE. THE LD AR HAS POINTED OUT T HAT THE TRANSACTION OF PURCHASE AND SALE OF SHARES OF THE LISTED COMPAN IES WERE MADE THROUGH THE STOCK EXCHANGE AND THROUGH THE REGISTER ED BROKERS. THE SHARES WERE DULY REFLECTED IN THE DEMAT ACCOUNT OF THE ASSESSEE AND THE SALE OF THESE SHARES WERE ALSO FROM THE DEMAT ACCOU NT OF THE ASSESSEE. THEREFORE, WHEN THE TRANSACTION OF PURCHASE AND SAL E ARE THROUGH THE STOCK EXCHANGE AND THE PAYMENT OF THE PURCHASED CON SIDERATION AS WELL AS RECEIPT OF SALE CONSIDERATION IS THROUGH BANKING CHANNEL AND DULY RECORDED IN THE BOOKS OF ACCOUNT THEN THE TRANSACTI ONS RECORDED IN THE SEPARATE SLIP WILL NOT CHANGE THE NATURE OF TRANSAC TION FROM DISCLOSED TO UNDISCLOSED. THE ASSESSEE SUBMITTED DOCUMENTS OR RE CORD PERTAINING TO PURCHASE AND SALE OF EQUITY SHARES OF LISTED COMPAN IES THROUGH RECOGNIZED STOCK EXCHANGE WHICH INCLUDES CONTRACT N OTE WITH STT PAID BILLS, DEPOSITORY STATEMENT, REGISTERED STOCK BROKE RS LEDGER ACCOUNT AND BANK STATEMENTS EVIDENCING RECEIPT OF SALE CONSIDER ATION THROUGH PROPER BANKING CHANNEL. ALL THESE DOCUMENTS DULY SUBSTANTI ATED THE GENUINENESS OF THE LONG TERM CAPITAL GAIN EARNED DU RING THE YEAR UNDER CONSIDERATION, THE DOCUMENTS PRODUCED BY THE ASSESS EE WERE NOT 7 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL DOUBTED OR CONTROVERTED BY THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT PROCEEDINGS. DURING THE COURSE OF SEARCH AND SEIZURE OPERATION, NO INCRIMINATING MATERIAL, EVIDENCE OR D OCUMENTS WHATSOEVER WAS FOUND, CALCULATION OF LONG TERM CAPITAL GAIN CA NNOT BE SAID TO BE INCRIMINATING MATERIAL WHEN ALL THESE DOCUMENTS ARE DULY RECORDED IN THE BOOKS OF ACCOUNT. THE LD AR HAS FURTHER SUBMITTED T HAT THE PENALTY PROCEEDINGS ARE SEPARATE FROM ASSESSMENT PROCEEDING S AND FINDING IN THE ASSESSMENT PROCEEDINGS DOES NOT LEAD TO THE CON CLUSION THAT THE ASSESSEE HAS CONCEALED THE INCOME. THE PENALTY U/S 271(1)(C) OF THE ACT IS NOT AUTOMATIC. NO POSITIVE MATERIAL HAS BEEN BRO UGHT ON RECORD BY THE ASSESSING OFFICER TO SHOW THAT THE INCOME IS BASED ON ANY ENTRIES RECORDED IN THE SEIZED MATERIAL. THE MERE FACT THAT THE ASSESSEE HAS DECLARED HIGHER INCOME IN THE RETURN OF INCOME FILE D U/S 153A OF THE ACT THEN IN THE ORIGINAL RETURN OF INCOME, IN ABSENCE O F ANY INCRIMINATING MATERIAL, IT CANNOT BE CONSTRUED THAT THE ASSESSEE HAS CONCEALED HIS INCOME. ONCE THE TRANSACTIONS ARE DULY RECORDED IN THE BOOKS OF ACCOUNT AND ALSO SUPPORTED BY THE RELEVANT DOCUMENTARY EVID ENCE TO PROVE THE GENUINENESS OF THE PURCHASE ANDS ALE OF SHARES THEN MERELY DECLARING HIGHER INCOME WOULD NOT IPSO FACTO AMOUNTS TO CONCE ALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME A TTRACTING THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. IN THE PENALT Y PROCEEDINGS, THE ASSESSING OFFICER HAS WITHOUT APPRECIATING THE DOCU MENTARY EVIDENCE 8 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL AND WITHOUT CONTROVERTING THE DOCUMENTARY EVIDENCE HAS TREATED THE SURRENDERED INCOME AS CONCEALMENT OF INCOME OR FURN ISHING INACCURATE PARTICULARS OF INCOME. THE LD AR HAS RELIED UPON TH E FOLLOWING DECISIONS: (I) TIDEWATER MARINE INTERNATIONAL INC V DCIT SPL. RANGE DEHRADUN 96 ITD 406 (DELHI). (II) DEEP CHAND KOTHARI V. CIT (1988) 171 ITR 381 ( RAJ (III) COMMISSIONER OF INCOME TAX V. HARJEEV AGGARWA L (2016) 290 CTR 263 (IV) PRINCIPAL COMMISSIONER OF INCOME TAX, DELHI VS . BEST INFRASTRUCTURE (INDIA) PVT. LTD [2017] 397 ITR 82 THE LD. AR HAS SUBMITTED THAT THE HONBLE HIGH COUR T HAS HELD THAT STATEMENTS RECORDED U/S 132(4) OF THE ACT DO NOT BY THEMSELVES CONSTITUTE INCRIMINATING MATERIAL. THE LD AR HAS RE FERRED TO THE VARIOUS DOCUMENTS PRODUCED BEFORE THE ASSESSING OFFICER AND SUBMITTED THAT ONCE THE ASSESSEE PRODUCED ALL DOCUMENTARY EVIDENCE TO ESTABLISH THAT THE TRANSACTION OF PURCHASE AND SALE OF SHARES ARE GENUINE THEN THE CASE OF THE ASSESSEE DOES NOT FALL IN THE PURVIEW OF SEC TION 271(1)(C) READ WITH EXPLANATION 5A OF THE ACT. HE HAS ALSO RELIED UPON THE DECISION OF THIS TRIBUNAL IN THE CASE OF AJAY TRADERS V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, ALWAR (2017) 81 TAXMANN .COM 463 (JAIPUR- TRIB) AND SUBMITTED THAT MERE SURRENDER OF ADDITION AL INCOME U/S 132(4) OF THE ACT WITHOUT ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH WILL NOT ATTRACT THE MISCHIEF OF EXPLANATION 5A TO SECTI ON 271(1)(C) OF THE ACT. THE LD AR HAS ALSO REFERRED SERIES OF DECISIONS INC LUDING THE DECISION OF 9 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL HONBLE SUPREME COURT IN THE CASE OF CIT V. RELIANC E PETRO PRODUCTS PVT. LTD (2010) 322 ITR 158 (SC) AND SUBMITTED THAT EVEN IF THE CLAIM OF EXEMPTION U/S 10(38) OF THE ACT IS FOUND TO BE NOT ALLOWABLE, THE SAME WOULD NOT AMOUNT TO CONCEALMENT OF INCOME OR FURNIS HING INACCURATE PARTICULARS OF INCOME. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE QUESTION ARISES WHETHER A S URRENDER AND DISCLOSURE MADE BY THE ASSESSEE U/S 132(4) OF THE A CT IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH AND SEIZURE ACTION WOULD LEAD TO THE CONCLUSION THAT THE ASSESSEE HAS CONCEA LED THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCO ME. IN THE CASE OF THE ASSESSEE, THERE IS NO DISPUTE THAT THE ASSESSEE FIL ED RETURN OF INCOME U/S 139(1) OF THE ACT ON 16/10/2013 AND DECLARED THE LO NG TERM CAPITAL GAIN OF RS. 2,78,25,000/- AND CLAIMED EXEMPTED U/S 10(38 ) OF THE ACT. IT IS ALSO NOT IN DISPUTE THAT THE TRANSACTIONS OF PURCHA SE AND SALE OF EQUITY SHARES OF LISTED COMPANIES WERE DULY RECORDED IN TH E BOOKS OF ACCOUNT AND CAPITAL GAIN ARISING FROM THE SALE OF SHARES WE RE REFLECTED IN THE BOOKS OF ACCOUNT REGULARLY MAINTAINED BY THE ASSESS EE. THE ASSESSEE HAS ALSO SHOWN THE SHARES IN QUESTION IN THE BALANCE SH EET AS ON 31/3/2012 AND THE ASSESSING OFFICER HAS NOT DOUBTED OR DISTUR BED THE HOLDING OF THE SHARES BY THE ASSESSEE AND SHOWN IN THE BALANCE SHE ET AT THE END OF THE PRECEDING FINANCIAL YEAR. ONCE THE TRANSACTIONS ARE DULY RECORDED IN THE 10 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL BOOKS OF ACCOUNT AND ALSO DISCLOSED IN THE ORIGINAL RETURN OF INCOME FILED U/S 139(1) OF THE ACT THEN THE DOCUMENTS FOUND DURI NG THE SEARCH CONTAINING THE DETAILS OF THE LONG TERM CAPITAL GAI N ALREADY RECORDED IN THE BOOKS OF ACCOUNT WOULD NOT AMOUNT TO INCRIMINAT ING MATERIAL DISCLOSING ANY UNDISCLOSED INCOME. EVEN THE SAID DE TAILS AS RECORDED IN THE SEIZED MATERIAL AS-1 ITSELF DOES NOT REVEAL THE NATURE OF TRANSACTION BEING GENUINE OR BOGUS. THESE ARE ONLY THE COMPUTAT ION OF LONG TERM CAPITAL GAIN FROM SALE OF SHARES. THEREFORE, THE DO CUMENTS WHICH WERE FOUND AND SEIZED DURING THE COURSE OF SEARCH AND SE IZURE ACTION CONTAINING DETAILS OF LONG TERM CAPITAL GAIN WOULD NOT BE REGARDED AS INCRIMINATING MATERIAL DISCLOSING ANY INCOME NOT RE CORDED IN THE BOOKS OF ACCOUNT. APART FROM THE FACT THAT THESE TRANSACTION S WERE DULY RECORDED IN THE BOOKS OF ACCOUNT AND ALSO DISCLOSED IN THE R ETURN OF INCOME FILED U/S 139(1) OF THE ACT, THE ASSESSEE HAS ALSO PRODUC ED RELEVANT DOCUMENTS, THE DETAILS OF WHICH ARE AS UNDER: (A ) IN RELATION TO SHARES PURCHASE: SUMMARY OF SHARES PURCHASED DURING THE FY 2010-11 ( PAGE NO. 69 OF PAPER BOOK) COPIES OF PURCHASE BILLS IN RESPECT OF SHARE PURCH ASED (PAGE NO. 70- 71 OF PAPER BOOK) COPY OF LEDGER ACCOUNT OF ASSESSEE IN BOOKS OF ACCO UNTS OF SHARE BROKERS THROUGH WHOM THE SHARES WERE PURCHASED (PAGE NO. 72 OF PAPER BOOK) COPY OF RELEVANT PAGE OF BANK STATEMENT SHOWING THE PAYMENT MADE AGAINST PURCHASES OF SHARES (PAGE NO. 73 OF PAPER B OOK) 11 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL ACKNOWLEDGEMENT OF ITR FILED ON 11.11.2011 U/S 139 (1) OF INCOME TAX ACT, 1961 ALONG WITH COMPUTATION SHEET OF TOTAL INCOME OF THE A.Y. 2011-12. (PAGE NO. 74-75 OF PAPER BOOK) ACKNOWLEDGEMENT OF ITR FILED ON 09.09.2016 U/S 153 A OF INCOME TAX ACT, 1961 ALONG WITH COMPUTATION SHEET OF TOTAL INCOME OF THE A.Y. 2011-12. (PAGE NO. 76-78 OF PAPER BOOK) COPY OF BALANCE SHEET & CAPITAL ACCOUNT OF ASSESSME NT YEAR 2011 12. (PAGE NO. 79 OF PAPER BOOK) COPY OF ASSESSMENT ORDER DATED 07.12.2017 U/S 143(3 ) R.W.S. 153A PASSED BY DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE KOTA (RAJ.) FOR THE ASSESSMENT YEAR 2011-12. (PAGE NO. 8 0-82 OF PAPER BOOK) (B) IN RELATION TO SHARES SALES: SUMMARY OF SHARES SALE DURING THE YEAR UNDER CONSID ERATION (PAGE NO. 83 OF PAPE R BOOK) COPY OF SALES BILLS/CONTRACT NOTES OF SHARES (PAGE NO. 84-94 OF PAPER BOOK) COPY OF LEDGER ACCOUNT OF ASSESSEE IN BOOKS OF ACCO UNTS OF SHARE BROKERS THROUGH WHOM THE SHARES WERE SOLD (PAGE NO. 95-96 O F PAPER BOOK) COPY OF RELEVANT PAGE OF BANK STATEMENT SHOWING THE ENTRY OF PAYMENT RECEIVED AGAINST SALES OF SHARES (PAGE NO. 97-99 OF PAPER BOOK) COPY OF LEDGER A/C OF FOLLOWING SHARES BROKERS FROM THE BOOKS OF ACCOUNT OF ASSESSEE DEPICTING THE DETAILS OF EQUITY SHARES MADE BY THE ASSESSEE ARE ENCLOSED: RELIGARE SECURITIES LIMITED SURESH RATHI SECURITIES PRIVATE LIMITED (PAGE NO. 1 00-101 OF PAPER BOOK) (C) DEMAT ACCOUNT STATEMENT OF FOLLOWING SHARES BROK ERS: SURESH RATHI SECURITIES PRIVATE LIMITED RELIGARE SECURITIES LIMITED (PAGE NO. 102-103 OF PA PER BOOK) THUS, THE PURCHASE BILL FOR PURCHASE OF SHARES ALON GWITH LEDGER ACCOUNT IN THE BOOKS OF THE SHARE BROKER CLEARLY REVEALS TH E DATE OF PURCHASE AND ALSO THE PAYMENT OF PURCHASE CONSIDERATION THROUGH BANKING CHANNEL AS REVEALED IN THE BANK ACCOUNT STATEMENT OF THE ASSES SEE. ALL THESE DOCUMENTS ARE INDEPENDENTLY VERIFIABLE. THE REVENUE HAS NOT DISPUTED THE FILING OF ORIGINAL RETURN OF INCOME BY THE ASSE SSEE FOR THESE YEARS AS 12 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL WELL AS FOR THE A.Y. 2011-12. FURTHER THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT U/S 153A OF THE ACT FOR THE A.Y. 201 1-12 HAS NOT DISTURBED THE HOLDING OF SHARES SHOWN IN THE BALANC E SHEET AS ON 31/3/2012. THESE TRANSACTIONS WERE ALSO CARRIED OUT THROUGH THE CAPITAL ACCOUNT OF THE ASSESSEE WHICH WAS ALSO PART OF THE RECORD OF THE A.Y. 2011-12 BUT THE ASSESSING OFFICER HAS ACCEPTED ALL THESE DETAILS WITHOUT ANY ADVERSE FINDING OR COMMENTS WHILE PASSING THE A SSESSMENT ORDER U/S 153A OF THE ACT FOR THE A.Y. 2011-12. THE ASSESSEE ALSO PRODUCED SALE BILLS/CONTRACT NOTES REGARDING SALE OF SHARES, COPY OF LEDGER ACCOUNT OF THE ASSESSEE IN THE BOOKS OF SHARE BROKERS IN RESPE CT OF SALE TRANSACTIONS, BANK STATEMENT SHOWING THE RECEIPT OF SALE CONSIDERATION AND DEMAT ACCOUNTS HAVING THE ENTRIES OF CREDIT OF THE SHARES AT THE TIME OF PURCHASE AND DEBIT OF THE SHARES FROM THE D EMAT ACCOUNT AT THE TIME OF SALE. FURTHER THE EQUITY SHARES OF THE COMP ANIES LISTED IN THE STOCK EXCHANGE WERE PURCHASED AND SOLD BY THE ASSES SEE THROUGH STOCK EXCHANGE. THEREFORE, THE TRANSACTION OF PURCHASE AN D SALES ARE NOT OFF MARKET BUT AT THE FLOOR OF THE STOCK EXCHANGE WHICH CAN BE DULY VERIFIED FROM INDEPENDENT SOURCE WITHOUT ANY INFLUENCE OF TH E ASSESSEE. HENCE, THE DOCUMENTS PRODUCED BY THE ASSESSEE ARE THE EVID ENCE WHICH CANNOT BE MANIPULATED AND ALSO CAN BE VERIFIED FROM THE IN DEPENDENT SOURCES. ONCE THE ASSESSEE HAS PRODUCED ALL THESE DOCUMENTS TO ESTABLISH THE GENUINENESS OF PURCHASE AND SALE OF TRANSACTIONS OF SHARES THROUGH 13 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL STOCK EXCHANGE THAN THE MERE DISCLOSURE AND SURREND ER OF INCOME WOULD NOT LEAD TO THE CONCLUSION THAT THE ASSESSEE HAS CO NCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF INCOME. IF THE TRANSACTIONS ARE ACCEPTED AS GENUINE AND ARE ALREAD Y DECLARED IN THE RETURN OF INCOME FILED U/S 139 AS WELL AS DULY RECO RDED IN THE BOOKS OF ACCOUNT THEN LONG TERM CAPITAL GAIN ARISING FROM TH E SALE OF LISTED SHARES IS EXEMPTED U/S 10(38) OF THE ACT. THE WITHDRAWAL O F CLAIM OF EXEMPTION BY THE ASSESSEE IN THE STATEMENT U/S 132(4) OF THE ACT, IGNORING THE SUPPORTING EVIDENCE OF GENUINENESS OF THE CLAIM, WO ULD NOT IPSO FACTO AMOUNT TO CONCEALMENT OF INCOME OR FURNISHING INACC URATE PARTICULARS OF INCOME. EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT HAS SET OUT THE CONDITIONS FOR INCOME DECLARED IN THE RETURN OF INC OME FURNISHED AFTER THE DATE OF SEARCH IS DEEMED TO HAVE BEEN CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOM E. FOR READY REFERENCE, WE REPRODUCE EXPLANATION 5A TO SECTION 2 71(1)(C) OF THE ACT AS UNDER: SECTION 271(1)(C) [ EXPLANATION 5A. WHERE, IN THE COURSE OF A SEARCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE ASSESSE E IS FOUND TO BE THE OWNER OF ( I ) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ART ICLE OR THING (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSETS) AND THE ASS ESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILISING (WHOLLY OR I N PART) HIS INCOME FOR ANY PREVIOUS YEAR; OR ( II ) ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOU NT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS REPRESENTS HIS INCOME (WH OLLY OR IN PART) FOR ANY PREVIOUS YEAR, WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND, 14 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL ( A ) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR H AS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THE REIN; OR ( B ) THE DUE DATE 17 FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS Y EAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN, THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL, FOR THE PURPOSES OF IMPOSITION OF A PENALTY UNDER CLAUSE ( C ) OF SUB-SECTION (1) OF THIS SECTION, BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHE D INACCURATE PARTICULARS OF SUCH INCOME.] THEREFORE, CLAUSE (A) AND (B) CLEARLY SET OUT THE C ONDITIONS AND SITUATION UNDER WHICH THE INCOME DECLARED IN THE RETURN FILED SUBSEQUENT TO THE SEARCH CAN BE DEEMED AS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. IN THE CASE IN HAND WHEN THE ASSESSEE ALREADY FURNISHED RETURN OF INCOME BEFORE THE DATE OF SEARCH AND ALSO DECLARED LONG TERM CAPITAL GAIN THEN NONE OF THE CONDITIONS AS PRESCRIBED UNDER CLAUSE (A) & (B) ARE SATISFIED SO AS TO BRING THE CASE OF THE ASSESSEE IN THE MISCHIEF OF EXPLANATION 5A TO S ECTION 271(1)(C) OF THE ACT. IN THE CASE OF COMMISSIONER OF INCOME TAX V. H ARJEEV AGGARWAL (SUPRA), THE HONBLE DELHI HIGH COURT WHILE CONSIDE RING THE DEFINITION OF UNDISCLOSED INCOME AS PER SECTION 158B(B) READ WITH SECTION 158BB HAS HELD IN PARA 20 TO 23 AS UNDER: 20. IN OUR VIEW, A PLAIN READING OF SECTION 158BB(1) O F THE ACT DOES NOT CONTEMPLATE COMPUTING OF UNDISCLOSED INCOME SOLELY ON THE BASIS OF A STATEMENT RECORDED DURING THE SEARCH. THE WORDS 'EVIDENCE FOU ND AS A RESULT OF SEARCH' WOULD NOT TAKE WITHIN ITS SWEEP STATEMENTS RECORDED DURING SEARCH AND SEIZURE OPERATIONS. HOWEVER, THE STATEMENTS RECORDED WOULD CERTAINLY CONSTITUTE INFORMATION AND IF SUCH INFORMATION IS RELATABLE TO THE EVIDENCE OR MATERIAL FOUND DURING SEARCH, THE SAME COULD CERTAINLY BE USED IN EVIDENCE IN ANY PROCEEDINGS UNDER THE ACT AS EXPRESSLY MANDATED BY VIRTUE OF TH E EXPLANATION TO SECTION 132(4) OF THE ACT. HOWEVER, SUCH STATEMENTS ON A ST ANDALONE BASIS WITHOUT REFERENCE TO ANY OTHER MATERIAL DISCOVERED DURING S EARCH AND SEIZURE OPERATIONS 15 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL WOULD NOT EMPOWER THE AO TO MAKE A BLOCK ASSESSMENT MERELY BECAUSE ANY ADMISSION WAS MADE BY THE ASSESSEE DURING SEARCH OP ERATION. 21. A PLAIN READING OF SECTION 132 (4) OF THE ACT INDI CATES THAT THE AUTHORIZED OFFICER IS EMPOWERED TO EXAMINE ON OATH ANY PERSON WHO IS FOUND IN POSSESSION OR CONTROL OF ANY BOOKS OF ACCOUNTS, DOCUMENTS, MON EY, BULLION, JEWELLERY OR ANY OTHER VALUABLE ARTICLE OR THING. THE EXPLANATION TO SECTION 132 (4), WHICH WAS INSERTED BY THE DIRECT TAX LAWS (AMENDMENT) ACT, 19 87 W.E.F. 1ST APRIL, 1989, FURTHER CLARIFIES THAT A PERSON MAY BE EXAMINED NOT ONLY IN RESPECT OF THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS FOUND AS A RESULT OF SE ARCH BUT ALSO IN RESPECT OF ALL MATTERS RELEVANT FOR THE PURPOSES OF ANY INVESTIGAT ION CONNECTED WITH ANY PROCEEDING UNDER THE ACT. HOWEVER, AS STATED EARLIE R, A STATEMENT ON OATH CAN ONLY BE RECORDED OF A PERSON WHO IS FOUND IN POSSESSION OF BOOKS OF ACCOUNTS, DOCUMENTS, ASSETS, ETC. PLAINLY, THE INTENTION OF T HE PARLIAMENT IS TO PERMIT SUCH EXAMINATION ONLY WHERE THE BOOKS OF ACCOUNTS, DOCUM ENTS AND ASSETS POSSESSED BY A PERSON ARE RELEVANT FOR THE PURPOSES OF THE IN VESTIGATION BEING UNDERTAKEN. NOW, IF THE PROVISIONS OF SECTION 132(4) OF THE ACT ARE READ IN THE CONTEXT OF SECTION 158BB(1) READ WITH SECTION 158B(B) OF THE A CT, IT IS AT ONCE CLEAR THAT A STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT CAN BE USED IN EVIDENCE FOR MAKING A BLOCK ASSESSMENT ONLY IF THE SAID STATEMEN T IS MADE IN THE CONTEXT OF OTHER EVIDENCE OR MATERIAL DISCOVERED DURING THE SE ARCH. A STATEMENT OF A PERSON, WHICH IS NOT RELATABLE TO ANY INCRIMINATING DOCUMEN T OR MATERIAL FOUND DURING SEARCH AND SEIZURE OPERATION CANNOT, BY ITSELF, TRI GGER A BLOCK ASSESSMENT. THE UNDISCLOSED INCOME OF AN ASSESSEE HAS TO BE COMPUTE D ON THE BASIS OF EVIDENCE AND MATERIAL FOUND DURING SEARCH. THE STATEMENT REC ORDED UNDER SECTION 132(4) OF THE ACT MAY ALSO BE USED FOR MAKING THE ASSESSMENT, BUT ONLY TO THE EXTENT IT IS RELATABLE TO THE INCRIMINATING EVIDENCE/MATERIAL UN EARTHED OR FOUND DURING SEARCH. IN OTHER WORDS, THERE MUST BE A NEXUS BETWEEN THE S TATEMENT RECORDED AND THE EVIDENCE/MATERIAL FOUND DURING SEARCH IN ORDER TO F OR AN ASSESSMENT TO BE BASED ON THE STATEMENT RECORDED. 22. IN CIT V . SHRI RAMDAS MOTOR TRANSPORT [1999] 238 ITR 177/102 TAXMAN 300 , A DIVISION BENCH OF ANDHRA PRADESH HIGH COURT, RE ADING THE PROVISION OF SECTION 132(4) OF THE ACT IN THE CONTEXT OF DISCOVE RING UNDISCLOSED INCOME, EXPLAINED THAT IN CASES WHERE NO UNACCOUNTED DOCUME NTS OR INCRIMINATING MATERIAL IS FOUND, THE POWERS UNDER SECTION 132(4) OF THE ACT CANNOT BE INVOKED. THE RELEVANT PASSAGE FROM THE AFORESAID JUDGMENT IS QUOTED BELOW: 'A PLAIN READING OF SUB-SECTION (4) SHOWS THAT THE AUTHORISED OFFICER DURING THE COURSE OF RAID IS EMPOWERED TO EXAMINE ANY PERS ON IF HE IS FOUND TO BE IN POSSESSION OR CONTROL OF ANY UNDISCLOSED BOOKS O F ACCOUNT, DOCUMENTS, MONEY OR OTHER VALUABLE ARTICLES OR THINGS, ELICIT INFORMATION FROM SUCH PERSON WITH REGARD TO SUCH ACCOUNT BOOKS OR MONEY W HICH ARE IN HIS POSSESSION AND CAN RECORD A STATEMENT TO THAT EFFEC T. UNDER THIS PROVISION, SUCH STATEMENTS CAN BE USED IN EVIDENCE IN ANY SUBS EQUENT PROCEEDING 16 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL INITIATED AGAINST SUCH PER SON UNDER THE ACT. THUS, THE QUESTION OF EXAMINING ANY PERSON BY THE AUTHORISED OFFICER ARISES ONLY WH EN HE FOUND SUCH PERSON TO BE IN POSSESSION OF ANY UNDISCLOSED MONEY OR BOO KS OF ACCOUNT. BUT, IN THIS CASE, IT IS ADMITTED BY THE REVENUE THAT ON TH E DATES OF SEARCH, THE DEPARTMENT WAS NOT ABLE TO FIND ANY UNACCOUNTED MON EY, UNACCOUNTED BULLION NOR ANY OTHER VALUABLE ARTICLES OR THINGS, NOR ANY UNACCOUNTED DOCUMENTS NOR ANY SUCH INCRIMINATING MATERIAL EITHE R FROM THE PREMISES OF THE COMPANY OR FROM THE RESIDENTIAL HOUSES OF THE M ANAGING DIRECTOR AND OTHER DIRECTORS. IN SUCH A CASE, WHEN THE MANAGING DIRECTOR OR ANY OTHER PERSONS WERE FOUND TO BE NOT IN POSSESSION OF ANY I NCRIMINATING MATERIAL, THE QUESTION OF EXAMINING THEM BY THE AUTHORISED OF FICER DURING THE COURSE OF SEARCH AND RECORDING ANY STATEMENT FROM THEM BY INVOKING THE POWERS UNDER SECTION 132(4) OF THE ACT, DOES NOT ARISE. TH EREFORE, THE STATEMENT OF THE MANAGING DIRECTOR OF THE ASSESSEE, RECORDED PAT ENTLY UNDER SECTION 132(4) OF THE ACT, DOES NOT HAVE ANY EVIDENTIARY VA LUE. THIS PROVISION EMBEDDED IN SUB-SECTION (4) IS OBVIOUSLY BASED ON T HE WELL ESTABLISHED RULE OF EVIDENCE THAT MERE CONFESSIONAL STATEMENT WITHOU T THERE BEING ANY DOCUMENTARY PROOF SHALL NOT BE USED IN EVIDENCE AGA INST THE PERSON WHO MADE SUCH STATEMENT. THE FINDING OF THE TRIBUNAL WA S BASED ON THE ABOVE WELL SETTLED PRINCIPLE.' 23. IT IS ALSO NECESSARY TO MENTION THAT THE AFORESAID INTERPRETATION OF SECTION 132(4) OF THE ACT MUST BE READ WITH THE EXPLANATION TO SECTION 132(4) OF THE ACT WHICH EXPRESSLY PROVIDES THAT THE SCOPE OF EXAMINAT ION UNDER SECTION 132(4) OF THE ACT IS NOT LIMITED ONLY TO THE BOOKS OF ACCOUNT S OR OTHER ASSETS OR MATERIAL FOUND DURING THE SEARCH. HOWEVER, IN THE CONTEXT OF SECTION 158BB(1) OF THE ACT WHICH EXPRESSLY RESTRICTS THE COMPUTATION OF UNDISC LOSED INCOME TO THE EVIDENCE FOUND DURING SEARCH, THE STATEMENT RECORDED UNDER S ECTION 132(4) OF THE ACT CAN FORM A BASIS FOR A BLOCK ASSESSMENT ONLY IF SUCH ST ATEMENT RELATES TO ANY INCRIMINATING EVIDENCE OF UNDISCLOSED INCOME UNEART HED DURING SEARCH AND CANNOT BE THE SOLE BASIS FOR MAKING A BLOCK ASSESSMENT. IN THE SUBSEQUENT DECISION IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX, DELHI VS. BEST INFRASTRUCTURE (INDIA) P VT. LTD. (SUPRA), THE HONBLE DELHI HIGH COURT HAS AGAIN HELD IN PARA 38 AS UNDER: 38. FIFTHLY, STATEMENTS RECORDED UNDER SECTION 132 (4 ) OF THE ACT OF THE ACT DO NOT BY THEMSELVES CONSTITUTE INCRIMINATING MATER IAL AS HAS BEEN EXPLAINED BY THIS COURT IN HARJEEV AGGARWAL ( SUPRA ). LASTLY, AS ALREADY POINTED OUT HEREINBEFORE, THE FACTS IN THE PRESENT CASE ARE DIFFERENT FROM THE FACTS IN SMT. DAYAWANTI GUPTA ( SUPRA ) WHERE THE ADMISSION BY THE ASSESSEES THEMSELVES ON CRITICAL ASPECTS, OF FA ILURE TO MAINTAIN ACCOUNTS AND ADMISSION THAT THE SEIZED DOCUMENTS RE FLECTED TRANSACTIONS OF UNACCOUNTED SALES AND PURCHASES, IS NON-EXISTENT IN THE 17 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL PRESENT CASE. IN THE SAID CASE, THERE WAS A FACTUAL FINDING TO THE EFFECT THAT THE ASSESSEES WERE HABITUAL OFFENDERS, INDULGI NG IN CLANDESTINE OPERATIONS WHEREAS THERE IS NOTHING IN THE PRESENT CASE, WHATSOEVER, TO SUGGEST THAT ANY STATEMENT MADE BY MR. ANU AGGARWAL OR MR. HARJEET SINGH CONTAINED ANY SUCH ADMISSION. THEREFORE, THE STATEMENT RECORDED U/S 132(4) DEHORS ANY INCRIMINATING MATERIAL WOULD NOT BY THEMSELVES CONSTITUTE INCRIMI NATING MATERIAL. IN THE CASE OF AJAY TRADERS V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, ALWAR (SUPRA), THE COORDINATE BENCH OF THIS TRIBUNAL WHILE CONSIDERING THE APPLICABILITY OF EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT WITHOUT ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH HAS HELD IN PARA 4.1 TO 4.3 AS UNDER: 4.1 THE LD. A/R FOR THE ASSESSEE SUBMITTED THAT THERE WAS A SEARCH UNDER SECTION 132 OF THE IT ACT ON THE ASSESSEE FIRM ALON G WITH OTHER GROUP ENTITIES, HUFS, INDIVIDUALS ETC. ON 17.09.2008. IN ORDER TO BUY PEACH AND TO COOPERATE WITH THE DEPARTMENT, TOTAL AMOUNT OF R S. 3 CRORES FOR THE ENTIRE GROUP WAS OFFERED AS ADDITIONAL INCOME U/S 1 32(4) OF THE IT ACT. THE ASSESSEE HAS DISCLOSED ADDITIONAL INCOME UNDER THE HEAD 'INCOME FROM OTHER SOURCES'. RETURN FOR A.Y. 2007-08 WAS FI LED BY DECLARING AN INCOME OF RS. 82,88,590/- ON 30.04.2010 WHICH WAS A CCEPTED BY THE AO AND NO FURTHER ADDITION WAS MADE BY HIM. IT IS FACT THAT ASSESSEE HAS ENHANCED THE INCOME BY RS. 15 LACS TO THE INCOME DE CLARED IN THE ORIGINAL RETURN OF INCOME. THE AO INVOKED PROVISION S OF EXPLANATION- 5A TO SECTION 271(1)(C). DURING THE COURSE OF SEARC H, NO INCRIMINATING DOCUMENTS WERE FOUND WHICH IS EVIDENT FROM THE ASSE SSMENT ORDER THAT NO ADDITION HAD BEEN MADE BY THE AO. HE ACCEPTED TH E RETURNED INCOME. THE LD. CIT (A) ALSO CONFIRMED THE PENALTY BY MIS-P LACING THE HON'BLE SUPREME COURT DECISION IN THE CASE OF MAK DATA (P.) LTD. V. CIT [2013] 358 ITR 593/38 TAXMANN.COM 448 . THE SURRENDER OF INCOME IN THE REVISED RETURN WAS VOLUNTARY AND SUO MOTO. ADDITION AL INCOME DISCLOSED UNDER SECTION 153A IN THE RETURN DOES NOT LEAD TO T HE CONCLUSION THAT THE ASSESSEE FIRM WAS HAVING UNDISCLOSED INCOME OR HAD CONCEALED THE PARTICULARS OF INCOME. THE SURRENDER WAS MADE ON TH E BASIS OF STATEMENT RECORDED U/S 132(4) OF THE IT ACT. HE FURTHER ARGUE D THAT UNDER SIMILAR 18 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL FACTS AND CIRCUMSTANCES WHICH CAME BEFORE THE HON'B LE DELHI HIGH COURT IN THE CASE OF CIT V. RAJ PAL BHATIA [2011] 333 ITR 315/10 TAXMANN.COM 191/202 TAXMAN 140 (MAG.) WHEREIN THE HON'BLE COURT HELD THAT STATEMENT COULD NOT BE CONSTRUED AS MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATIONS FOR THE PURP OSE OF CHAPTER XIV- B. THE CASE LAW APPLIED BY THE LD. CIT (A) HAS MIS- PLACED THE FACT THAT IN THAT CASE CERTAIN DOCUMENTS PERTAINING TO SHARE APPLICATIONS WERE FOUND DURING THE COURSE OF SURVEY, WHEREAS IN ASSES SEE'S CASE NO INCRIMINATING DOCUMENTS WERE FOUND. THEREFORE, CASE LAW RELIED UPON BY THE LD. CIT (A) IS NOT APPLICABLE. HE FURTHER ARGUE D THAT ITAT MUMBAI IN THE CASE OF FINANCIAL TECHNOLOGIES (I) LTD. V. ASSTT. CIT [2015] 61 TAXMANN.COM 406 HELD THAT EXPLANATION-5A HAS BEEN USED BY THE LEGISLATURE WHERE ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND DURING THE COURSE OF SEARCH WHICH HA S NOT BEEN DISCLOSED BY THE ASSESSEE AND ADDITIONS WERE MADE ON ACCOUNT OF UNACCOUNTED MONEY, BULLION ETC. IN THIS CASE AS SUCH REVENUE HA S NOT BROUGHT ON RECORD ANY MATERIAL TO PROVE THAT UNACCOUNTED MONEY , JEWELLERY OR INCRIMINATING DOCUMENTS WERE FOUND. HE FURTHER HAS DRAWN OUR ATTENTION TO ITAT JAIPUR BENCH DECISION IN THE CASE OF RADHEY SHYAM MITTAL , ITA NO. 1013, 1014 & 1015/JP/2013 DELETING PENALTY IMPO SED BY THE ASSESSING OFFICER BY INVOKING EXPLANATION 5A TO SEC TION 271(1)(C), WHEREIN THE TRIBUNAL HELD THAT PENALTY UNDER EXPLAN ATION 5A TO SEC. 271(1)(C) HAS TO BE MADE WHERE ANY INCRIMINATING DO CUMENTS ARE FOUND DURING THE COURSE OF SEARCH. IN THE CASE OF ASSESSE E, NO INCRIMINATING DOCUMENTS WERE FOUND, THEREFORE, THE COORDINATE BEN CH HAD DELETED THE ADDITION. THE LD. A/R OF THE ASSESSEE REQUESTED TO DELETE THE PENALTY CONFIRMED BY LD. CIT (A). 4.2 AT THE OUTSET, THE LD. D/R VEHEMENTLY SUPPORTED T HE ORDER OF LD. CIT (A). 4.3 WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE M ATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT DURING THE COURSE OF SEARCH, N O INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED. THE ASSESSEE SURRE NDERED THE ADDITIONAL INCOME UNDER SECTION 132(4) AT RS. 15 LA CS AND REQUESTED NOT TO IMPOSE PENALTY U/S 271(1)(C) OF THE IT ACT. THE LD. AO IMPOSED THE PENALTY BY INVOKING THE EXPLANATION 5A TO SECTION 2 71(1)(C) OF THE ACT, WHICH HAS BEEN CONFIRMED BY LD. CIT (A) BY CONSIDER ING THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF MAK DATA (P.) LTD. ( SUPRA ). BUT FOR IMPOSING THE PENALTY UNDER EXPLANATION 5A O N THE BASIS OF STATEMENT RECORDED DURING THE COURSE OF SEARCH, IT IS NECESSARY TO BE FOUND INCRIMINATING DOCUMENTS AND IS TO BE CONSIDER ED AT THE TIME OF ASSESSMENT FRAMED UNDER SECTION 153A OF THE ACT. TH E ISSUE HAS BEEN CONSIDERED BY VARIOUS HIGH COURTS AS WELL AS BY ITA T AS RELIED UPON BY THE ASSESSEE, WHICH ARE SQUARELY APPLICABLE TO THE CASE OF THE ASSESSEE. 19 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL AS NO INCRIMINATING DOCUMENTS WERE FOUND DURING THE COURSE OF SEARCH, THEREFORE, EXPLANATION 5A TO SECTION 271(1)(C) IS N OT APPLICABLE. ACCORDINGLY, WE DELETE THE PENALTY CONFIRMED BY LD. CIT (A). THUS, THE TRIBUNAL HAS HELD THAT THE PENALTY U/S 27 1(1)(C) READ WITH EXPLANATION 5A OF THE ACT CAN BE LEVIED ONLY WHEN S OME INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH. EVEN OTHERWISE THE PENALTY PROCEEDINGS ARE SEPARATE AND INDEPENDENT FROM THE A SSESSMENT ORDER AND PARTICULARLY IN CASE WHERE THE ASSESSING OFFICE R HAS NOT MADE ANY ADDITION BUT THE ASSESSEE ITSELF HAS SURRENDERED AN ADDITIONAL INCOME THEN THE EXPLANATION OF THE ASSESSEE AGAINST THE LE VY OF PENALTY HAS TO BE CONSIDERED IN THE PROCEEDINGS U/S 271(1)(C) OF T HE ACT. IT IS SETTLED PROPOSITION OF LAW THOUGH THE ASSESSMENT ORDER IS A RELEVANT MATERIAL FOR THE PURPOSE OF LEVY OF PENALTY U/S 271(1)(C) OF THE ACT, HOWEVER, IT CANNOT BE A SOLE BASIS OF LEVY OF PENALTY AND THE A SSESSING OFFICER HAS TO CONSIDER ALL THE RELEVANT MATERIAL FACTS AS WELL AS EXPLANATION FURNISHED BY THE ASSESSEE. THEREFORE, IN THE CASE OF THE ASSE SSEE, THE INCOME WAS ASSESSED ONLY BECAUSE THE ASSESSEE SURRENDERED THE SAME BUT IT WOULD NOT HAVE OTHERWISE SUSTAINED THE TEST OF THE LEGAL REQUIREMENT OF THE ASSESSMENT OF THE INCOME WITHOUT ANY INCRIMINATING MATERIAL. THERE ARE BINDING PRECEDENTS ON THE ISSUE THAT IN THE PROCEED INGS U/S 153A OF THE ACT, THE ASSESSING OFFICER CANNOT REASSESS THE INCO ME IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND AND SEIZED DURING THE COURSE OF SEARCH OR POST SEARCH ENQUIRY. IN THE CASE IN HAND, WE FIND T HAT THE ENTIRE BASIS OF 20 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL THE ADDITIONAL INCOME ASSESSED TO TAX IN THE PROCEE DINGS U/S 153A OF THE ACT IS THE STATEMENT OF THE ASSESSEE U/S 132(4) OF THE ACT AND SUBSEQUENT SURRENDER OF THE SAID INCOME TO TAX WITH OUT ANY INCRIMINATING MATERIAL FOUND OR SEIZED. SINCE THE INCOME AND TRAN SACTION RELATING TO THE INCOME ARE ALREADY PART OF THE BOOKS OF ACCOUNT NOT ONLY FOR THE YEAR UNDER CONSIDERATION BUT ALSO FOR THE PRECEDING YEAR S AND THEREFORE, EXCEPT SURRENDER MADE BY THE ASSESSEE, THE ADDITION IF ANY MADE BY THE ASSESSING OFFICER OF THIS INCOME BASED ON THE STATE MENT WOULD NOT HAVE SURVIVED OR SUSTAINED. THE HONBLE JURISDICTIONAL H IGH COURT IN THE CASE OF JAI STEEL (INDIA) VS ACIT (2013) 259 CTR (RAJ) 2 81 HAS LAID DOWN THE PROPOSITION THAT THE ADDITION MADE IN ABSENCE OF IN CRIMINATING MATERIAL IN THE PROCEEDINGS U/S 153A WHERE THE ASSESSMENT WAS N OT PENDING ON THE DATE OF SEARCH IS NOT SUSTAINABLE. A SIMILAR VIEW H AS BEEN TAKEN BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS KABU L CHAWLA 380 ITR 573 (DEL) AS WELL AS IN THE CASE OF PRINCIPAL COMMISSIO NER OF INCOME TAX CENTRAL-2, NEW DELHI V. MEETA GUTGUTIA [2017] 395 I TR 526 AND HELD THAT UNLESS THERE IS AN INCRIMINATING MATERIAL FOR THE ADDITION SOUGHT TO BE MADE PURSUANT TO THE SEARCH AND SEIZURE OPERATIO N, THE ADDITION CANNOT BE MADE IN RESPECT OF THE ASSESSMENT YEAR WH ICH WAS NOT PENDING AS ON THE DATE OF SEARCH. THEREFORE, ONCE T HE ASSESSEE HAS RAISED ALL THESE CONTENTIONS AND EXPLAINED DURING T HE PENALTY PROCEEDINGS THAT THE TRANSACTIONS OF PURCHASE AND S ALE OF SHARES AND 21 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL CONSEQUENTIAL LONG TERM CAPITAL GAIN ARE GENUINE BA SED ON THE DOCUMENTARY EVIDENCE AND FURTHER ALL THESE WERE PAR T OF THE BOOKS OF ACCOUNT AND DISCLOSED IN THE RETURN OF INCOME FILED U/S 139 CONSEQUENTLY THE ADDITION ITSELF WOULD NOT HAVE SURVIVED HAD THE ASSESSEE NOT SURRENDERED THE INCOME THEN THIS EXPLANATION OF THE ASSESSEE WOULD CERTAINLY LEAD TO THE CONCLUSION THAT THE PENALTY I S NOT LEVIABLE U/S 271(1)(C) OF THE ACT. THE LD. CIT(A) AFTER CONSIDER ING ALL THE RELEVANT MATERIAL AS WELL AS THE CASE LAWS ON THE POINT HAS HELD IN PARA 4 TO 4.5 AS UNDER: 4. I HAVE CONSIDERED THE FACTS OF THE CASE, GONE TH ROUGH THE RELEVANT ASSESSMENT ORDERS, PENALTY ORDERS AND THE PAPER-BOO K & SUBMISSION OF THE APPELLANT AND THE VARIOUS CASE LAWS. 4.1 IT IS FOUND THAT THE APPELLANT HAS ADVANCED ARG UMENTS FROM MULTIPLE PERSPECTIVES, STARTING FROM TECHNICALITIES OF IMPOSING THE PENALTY BY TREATING THE ADDITIONAL INCOME AS CONCEA LMENT OF INCOME, PENALTY ONLY ON THE BASIS OF STATEMENTS RECORDED IN SEARCH, ADDITIONAL INCOME SURRENDERED DEHORS THE SEIZED MATERIAL, FIND ING IN ASSESSMENT ALONE NOT SUFFICIENT TO ESTABLISHING OF THE MENSREA ETC. FROM EXAMINATION OF DOCUMENTS AND SUBMISSION THE FOLLOWING FACTS EME RGES BY WHICH THE PENALTY U/S 271(1)(C) CANNOT BE HELD AS VALIDLY IMP OSABLE IN THE INSTANT CASE: - I) DURING THE COURSE OF SEARCH THE APPELLANT ADMITT ED THE LONG TERM CAPITAL GAIN SHOWN IN HIS ITR AS HIS UNDI SCLOSED INCOME BUT SUCH UNDISCLOSED INCOME IN NOT BASED ON ANY DOCUMENTS FOUND AS A RESULT OF SEARCH OR EVIDENCES. DURING THE COURSE OF SEARCH & SEIZURE OPERATIONS, NO INCRIMINA TING MATERIAL, EVIDENCE OR DOCUMENTS WHATSOEVER WERE FOU ND. 22 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL II) SUCH LONG TERM CAPITAL GAIN WAS ALREADY DECLARE D IN THE ITR FILED UNDER SECTION-139(1) OF THE ACT THOUGH TH E SAME SHOWN AS EXEMPTED U/S 10(38) OF THE ACT. III) DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E APPELLANT SUBMITTED DOCUMENTS FROM ACQUISITION TO S ALES OF DOCUMENTS TO PROVE THE GENUINENESS OF CAPITAL GAIN EARNED BY HIM. THE TRANSACTION WAS CARRIED OUT IN RECOGNIZED STOCK EXCHANGE AND WAS THROUGH PROPER BANKING CHANNEL. TH E DOCUMENTARY EVIDENCE WERE REMAINED UNCONTROVERTED B Y THE AO DURING THE ASSESSMENT PROCEEDINGS AS WELL AS PENALT Y PROCEEDINGS. IV) DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS PENALTY PROCEEDINGS THE APPELLANT REPEATEDLY SUBMIT TED THAT THE LONG TERM CAPITAL GAIN EARNED BY HIM IS GENUINE ONE AND DULY VERIFIABLE. THE ADMISSION OF THE SAME WAS ONLY TO M ETAL PEACE. HOWEVER NO INQUIRY WAS MADE AT THE END OF THE AO TO CONTROVERT THE SUBMISSION OF THE APPLICANT OR NO DOCUMENT WAS ADDUCED IN THIS REGARD. V) THE PENALTY WAS IMPOSED SOLELY FOR THE REASON TH AT THE APPELLANT HAS FILED RETURNS U/S 153A OF THE ACT DIS CLOSING HIGHER INCOME THAN IN THE ORIGINAL RETURN, AND ONLY ON THE BASIS OF INCOME OFFERED BY APPLICANT IN HIS STATEMENT. VI) FOR IMPOSING THE PENALTY THE AO HELD THAT THE A PPELLANT HAS SUPPRESSED HIS INCOME BY WAY OF NOT DISCLOSING HIS CORRECT INCOME IN HIS REGULAR RETURN HOWEVER NO EVIDENCE IN THIS REGARD WAS ADDUCED/RELIED IN THE ASSESSMENT ORDER AS WELL AS PENALTY ORDER. 4.2 THUS IN THE ASSESSMENT PROCEEDINGS AS WELL AS P ENALTY PROCEEDINGS THE APPLICANT REPEATEDLY SUBMITTED THE CAPITAL GAIN EARNED WAS AS GENUINE BUT NO HEED WAS GIVEN THEREON AND WI THOUT CARRYING ANY INDEPENDENT INQUIRY THE PENALTY WAS IMPOSED SOLELY RELYING ON THE 23 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL STATEMENT OF APPLICANT. FOR THE PURPOSE OF LEVYING PENALTY U/S 271(1)(C) OF THE ACT, THE CONCEALMENT OF INCOME HAS TO BE IND EPENDENTLY ESTABLISHED BY THE OTHER EVIDENCES AND NOT ON THE B ASIS OF THE STATEMENT OF THE APPELLANT ALONE. FOR PROVING ANY ADDITIONAL INCOME DECLARED IN THE RETURN FILED U/S 153A OF THE ACT AS CONCEALED I NCOME, THERE MUST BE DELIBERATE ACT OF THE ASSESSEE DULY CORROBORATED WI TH THE EVIDENCES. HOWEVER, IT SEEMS THE APPELLANTS SUBMISSIONS OF FAC TUAL MATRIX AND DECISIONS OF HONBLE JAIPUR ITAT REPRODUCED ABOVE A RE GOOD ENOUGH TO DECIDE THE MATTER. 4.3 IT IS UNDISPUTED FACT THAT THE INCOME SURRENDE RED DURING THE SEARCH U/S 132(4) WAS DULY INCLUDED/ OFFERED FOR TA X WHILE FILING RETURN OF INCOME U/S 153A AND DUE TAXES THEREON WAS PAID. THE INCOME SURRENDERED AND INCLUDED/ OFFERED FOR TAX WHILE FIL ING RETURN OF INCOME WAS ACCEPTED AS SUCH BY THE AO. 4.4 IN ABOVE FACTUAL SITUATION THE PENALTY U/S 271( 1)(C) CANNOT BE LEVIED AS THE MATTER IS COVERED ONE. APART FROM THE CONSIDERATION GIVEN ON THE SEVERAL CASE LAWS CITED BY THE APPLICANT IT IS WORTH TO PLACE THE RELIANCE ON THE DECISION HONBLE ITAT, JAIPUR BENCH , JAIPUR IN THE CASE OF AJAY TRADERS V/S DCIT, CENTRAL CIRCLE ALWAR ( IT A NO. 296/- JP/2014 PRONOUNCED ON 06.05.2016 AS FOLLOWS: - 4.3. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED T HE MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT DURING THE COURS E OF SEARCH, NO INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED. THE ASSESSEE SURRENDERED THE ADDITIONAL INCOME UNDER SECTION 132 (4) AT RS. 15 LACS AND REQUESTED NOT TO IMPOSE PENALTY U/S 271(1) (C) OF THE IT ACT. THE LD. AO IMPOSED THE PENALTY BY INVOKING THE EX PLANATION 5A TO SECTION 271(1)(C) OF THE ACT, WHICH HAS BEEN CONFIRMED BY LD. CIT (A) BY CONSIDERING THE JUDGMENT OF HONBLE SUPR EME COURT IN THE CASE OF MAK DATA PVT. LTD. (SUPRA). BUT FOR IMP OSING THE PENALTY UNDER EXPLANATION 5A ON THE BASIS OF STATEM ENT RECORDED DURING THE COURSE OF SEARCH, IT IS NECESSARY TO BE FOUND INCRIMINATING DOCUMENTS AND IS TO BE CONSIDERED AT THE TIME OF 24 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL ASSESSMENT FRAMED UNDER SECTION 153A OF THE ACT. THE ISSUE HAS BEEN CONSIDERED BY VARIOUS HIGH COURTS AS WELL AS B Y ITAT AS RELIED UPON BY THE ASSESSEE, WHICH ARE SQUARELY APP LICABLE TO THE CASE OF THE ASSESSEE. AS NO INCRIMINATING DOCUMENT S WERE FOUND DURING THE COURSE OF SEARCH, THEREFORE, EXPLANATION 5A TO SECTION 271(1)(C) IS NOT APPLICABLE. ACCORDINGLY, WE DELETE THE PENALTY CONFIRMED BY LD. CIT (A). IT IS UNDISPUTED FACT THAT, THE NO INCRIMINATING DO CUMENTS WERE FOUND DURING THE COURSE OF SEARCH TO PROVE THE CONCEALMEN T OF INCOME AND THE PENALTY WAS IMPOSED MERELY ON THE BASIS OF INCOME S URRENDERED BY THE APPELLANT IN HIS STATEMENT AND SHOWN IN THE ITR FIL ED U/S 153A OF THE ACT. THE INCOME SO SURRENDER BY THE APPELLANT WAS REPORT ED IN THE RETURN FILED U/S 153A WHICH HAS BEEN ACCEPTED WITHOUT FURT HER ADDITION. NO INCRIMINATING DOCUMENTS ARE NOT USED TO ALTER THE I NCOME REPORTED BY THE APPELLANT OR PROVE THE INCOME SO SURRENDER BY T HE APPLICANT AS REAL UNDISCLOSED INCOME. THEREFORE, ISSUE IS SQUARELY CO VERED WITH THE ABOVE CITATION. 4.5 IN VIEW OF THE ABOVE DISCUSSIONS AND CONSIDERIN G THE OVERALL FACTS AND ATTENDING CIRCUMSTANCES OF THE APPELLANT S CASE AND WITH REGARDS TO THE VARIOUS JURIDICAL PRONOUNCEMENTS DIS CUSSED HEREIN ABOVE, I FOUND THAT IT IS UNDISPUTED FACT IN THIS CASE THA T THE IMPUGNED INCOME SUBJECTED TO THE ASSESSMENT IS ONLY INCOME WHICH IS SURRENDERED BY THE APPELLANT DURING THE SEARCH AND ALSO DISCLOSED IN R ETURN OF INCOME FILED UNDER SECTION 153A. THERE IS NO CORROBORATIVE EVIDE NCE/MATERIAL /DOCUMENT IN SUPPORT OF INCOME SO SURRENDERED AND O FFERED FOR TAXATION AND THE SAME IS ONLY ON THE BASIS OF THE STATEMENT OF THE ASSESSEE RECORDED DURING SEARCH. THE DECLARED INCOME IS ALSO FINALLY ASSESSED AS SUCH. FOLLOWING, THE DECISIONS DISCUSSED IN PARA 4. 4 THE PENALTY LEVIED ON THIS ACCOUNT UNDER SECTION 271(1)(C) OF THE INCO ME TAX ACT IS NOT SUSTAINABLE AND ACCORDINGLY THE SAME STANDS AS CANC ELLED. ACCORDINGLY, THIS GROUND OF APPEAL 1 TO 6 IS ALLOWED. 25 ITA NO. 1447JP/2018 DCIT VS MALTI AGARWAL IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND A DETAILED DISCUSSION IN THE FOREGOING PARAS OF THIS ORDER, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT( A) IN DELETING THE PENALTY U/S 271(1)(C) OF THE ACT. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND MARCH, 2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22 ND MARCH, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT - THE D.C.I.T., CENTRAL CIRCLE, KOTA. 2. IZR;FKHZ@ THE RESPONDENT - SMT. MALTI AGARWAL, KOTA. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K]T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1447/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR