ACIT, Central Circle - 2(3), Kolkata , Kolkata V. Kamalesh Agarwal, Kolkata

ITA 1535/KOL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7830 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 28-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Question of law; Competent authority; Block assessment; Revised return; Reason to believe; Set aside
• Section: 271(1)(c); 143(3); 153A; 131; 132; 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. 232 /KOL/ 201 7 & C.O. NO.37/KOL/2017 (A/O ITA NO.232/KOL/2017) ASSESSMENT YEAR: 2013-14 ACIT, CENTRAL CIRCLE-2(3) R.NO.403, 4 TH FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTI PALLY, E.M. BYE-PASS, KOLKATA-107 / V/S . SHRI SIDHANAT GUPTA X-12, 2 ND FLOOR, HAUZ KHAS, NEW DELHI-110016 [ PAN NO.AEVPG 8722 Q ] /APPELLANT .. /RESPONDENT /CO-OBJECTOR ITA NO. 234 /KOL/ 201 7 & C.O. NO.27/KOL/2017 (A/O ITA NO.234/KOL/2017) ASSESSMENT YEAR: 2013-14 ACIT, CENTRAL CIRCLE-2(3) R.NO.403, 4 TH FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTI PALLY, E.M. BYE-PASS, KOLKATA-107 / V/S . SHRI SANJAY DHINGRA HOUSE NO.14, ROAD NO.8, PUNJAB BAGH EAST, NEW DELHI-110026 [ PAN NO.AAFPD 9561 J ] /APPELLANT .. /RESPONDENT /CO-OBJECTOR ITA NO. 1485 /KOL/ 2017 & C.O. NO.84/KOL/2017 (A/O ITA NO.1485/KOL/2017) ASSESSMENT YEAR: 2014-15 ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 2 ACIT, CENTRAL CIRCLE-2(3) R.NO.403, 4 TH FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTI PALLY, E.M. BYE-PASS, KOLKATA-107 / V/S . DILIP KUMAR MODI 243BG, BLOCK-J, NEW ALIPORE, KOLKATA-700053 [ PAN NO.AEZPM 2127 B ] /APPELLANT .. /RESPONDENT /CO-OBJECTOR ITA NO. 1535 /KOL/ 2017 & C.O. NO.88/KOL/2017 (A/O ITA NO.1535/KOL/2017) ASSESSMENT YEAR: 2013-14 ACIT, CENTRAL CIRCLE-2(3) R.NO.403, 4 TH FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTI PALLY, E.M. BYE-PASS, KOLKATA-107 / V/S . KAMLESH AGARWAL 547, BLOCK N, NEW ALIPORE, KOLKATA-700053 [ PAN NO.ADCPA 9884 D ] /APPELLANT .. /RESPONDENT /CO-OBJECTOR ITA NO. 1541 /KOL/ 2017 & C.O. NO.108/KOL/2017 (A/O ITA NO.1541/KOL/2017) ASSESSMENT YEAR: 2013-14 ACIT, CENTRAL CIRCLE-2(3) R.NO.403, 4 TH FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTI PALLY, E.M. BYE-PASS, KOLKATA-107 / V/S . NIRANJAN LAL AGARWAL P-547, N-BLOCK, NEW ALIPORE, KOLKAT-700053 [ PAN NO.ADCPA 9883 E ] /APPELLANT .. /RESPONDENT /CO-OBJECTOR ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 3 ITA NO. 2293 /KOL/ 2017 & C.O. NO.107/KOL/2018 (A/O ITA NO.2293/KOL/2017) ASSESSMENT YEAR: 2013-14 ACIT, CENTRAL CIRCLE-2(3) R.NO.403, 4 TH FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTI PALLY, E.M. BYE-PASS, KOLKATA-107 / V/S . SHRI MURARILAL AGARWAL P-547, BLOCK-N, NEW ALIPORE, KOLKATA-700053 [ PAN NO.AFAPA 1959 B ] /APPELLANT .. /RESPONDENT /CO-OBJECTOR /BY ASSESSEE SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, AR ' /BY REVENUE SHRI A.K.SINIIGH, CIT-SR.DR & SHHRI RABIN CHOUDHURY, ADDL CIT-SR-DR /DATE OF HEARING 08-04-2019 /DATE OF PRONOUNCEMENT 24-04-2019 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THE INSTANT BATCH OF TWELVE CASES PERTAINS TO SIX ASSESSEES. ALL THESE REVENUES APPEAL(S) AND ASSESSEES CROSS OBJECTIONS CASES ARI SE FROM THE COMMISSIONER OF INCOME TAX (APPEALS)-20, KOLKATAS IDENTICAL ORDER( S) UPHOLDING / PARTLY CONFIRMING THE ASSESSING OFFICERS ACTION IMPOSING THE PENALT( IES) IN ISSUE; INVOLVING PROCEEDINGS U//S 271AAB OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. RELEVANT ASSESSMENT YEAR IN ALL THESE CASES ARE ASSESSMENT YEARS 2013-1 4 & 2014-15. 2. IT TRANSPIRES AT THE OUTSET THAT ONE OF THE REVE NUES APPEAL ITA NO.2293/KOL/2017 SUFFERS 130 DAYS DELAY IN FILING. IT HAS PLACED ON RECORD ITS CONDONATION PETITION STATING REASONS THEREOF TO VAR IOUS PROCEDURAL FORMALITIES AND COMPILATION OF THE NECESSARY RECORDS AT DEPARTMENTA L LEVEL. THE ASSESSEE IS FAIR ENOUGH IN NOT DISPUTING CORRECTNESS OF THE SAID CONDONATIO N AVERMENTS. WE THEREFORE CONDONE ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 4 THE ABOVE IDENTICAL DELAY IN REVENUES APPEAL. THE SAME IS NOW TAKEN UP FOR ADJUDICATION ON MERITS. 3. HEARD BOTH THE REVENUE AS SWELL AS ALL THESE ASS ESSEES VEHEMENTLY REITERATING THEIR RESPECTIVE STANDS AGAINST AND IN SUPPORT OF T HE IMPUGNED PENALTY(IES) IMPOSED BY THE ASSESSING OFFICER AND PARTLY UPHELD IN THE LOWE R APPELLATE PROCEEDINGS TO THE FOLLOWING EFFECT:- NAME OF ASSESSEE 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) SHRI SIDHANT GUPTA 232/K/17 37/K/17 186500000 13585737 200085737 60025 721 55950000 4075721 SANJAY DHINGRA 234/K/17 27/K/17 194200000 5796462 1 99996462 59998938 58260000 1738938 DILIP KR. MODI 1485/K/17 84/K/17 33132500 1367500 3 4500000 345000 3313250 136750 KAMLESH AGARWAL 1535/K/17 88/K/17 7600000 652350 8252350 2475705 22 80000 195705 NIRANJAN LAL AGARWAL 1541/K/17 108/K/17 14450000 -- 14450000 4353000 4353000 --- MURARI LAL AGARWAL 2293/K/17 107/K/18 12200000 3353920 15553920 466617 6 3660000 1006176 IT TRANSPIRES AT THE OUTSET THAT THE IDENTICAL ISSU E RAISED IN ALL THESE REVENUE APPEAL(S) AS WELL AS IN ASSESSEES CROSS-OBJECTIONS IS AS TO WHETHER THE CIT(A) HAS RIGHTLY CONFIRMED THE ASSESSING OFFICERS ACTIO N IN PART IMPOSING THE IMPUGNED U/S 271AAB PENALT(IES) IN RELATION TO THE SEARCH IN QUESTION DATED 04.10.2012. IT IS IN THIS BACKDROP OF FACTS THAT WE TREAT THE REVENUES FIRST APPEAL AND THE ASSESSEE SHRI SIDHANT GUPTAS CROSS- OBJECTION THEREIN ITA NO.232/KOL/2017 AND CO NO.37/KOL/2017 TO BE THE LEAD CASES. 4. WE ADVERT TO THE BASIC RELEVANT FACTS. THERE IS NO DISPUTE ABOUT THE SEARCH IN ISSUE TO HAVE BEEN CONDUCTED ON 04.10.2012 AT ASSES SEES BUSINESS AND RESIDENTIAL PREMISES. THE SAME LED TO UNDISCLOSED INCOME DISCLO SURE OF 20,00,85,737/- INCLUDING CASH OF 1,35,85,737/-, JEWELRY / OTHER VALUABLES OF 1,22,35,737/- AND OTHER INCOME DERIVED FROM DAIRIES BUSINESS, REAL ESTATE BUSINESS AND FINANCIAL ACTIVITIES TRANSACTIONS AMOUNTING TO 18.65 CRORES. THE ASSESSING OFFICER THEREAFTER FRAM ED THE ASSESSMENT IN ISSUE ACCEPTING ASSESSING INCOME OF 20,00,85,737/- ON 27.03.2015. THERE IS FURTHER NO QUARREL THAT THE SAID ASSESSMENT ATTAINED FINALI TY AT THIS STAGE ITSELF. 5. WE NOW COME TO THE IMPUGNED PENALTY PROCEEDINGS. THE ASSESSING OFFICERS PENALTY ORDER DATED 29.09.2015 HELD THAT THE ASSESS EES UNDISCLOSED INCOME DURING THE ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 5 SEARCH IN ISSUE ATTRACTED THE IMPUGNED PENAL PROVIS ION BEING A CLEAR-CUT INISTANCE OF UNBEARING OF UNDISCLOSED INCOME. HE THEREFORE DECLI NED THE TAXPAYERS WRITTEN SUBMISSIONS DATED 17.08.2015 PLEADING THEREIN THAT THERE WAS NO EVIDENCE PIN- POINTING ANY UNDISCLOSED INCOME OR ASSETS FOUND OR SEIZED DURING THE COURSE OF SEARCH. THE ASSESSING OFFICER THUS LEVIED THE IMPUGNED PENA LTY OF 6,00,25,721/-. 6. THE ASSESSEE PREFERRED APPEAL. THE CIT(A) HAS PA RTLY AFFIRMED THE IMPUGNED PENALTY OF 1,35,85,737/- ONLY TO THE EXTENT OF THE UNDISCLOSED INCOME CORROBORATING EVIDENCE FOUND / SEIZED DURING THE COURSE OF SEARCH AS FOLLOWS:- DURING THE APPELLATE PROCEEDINGS THE AR HAS MADE OR AL SUBMISSION AS WELL AS FILED A WRITTEN SUBMISSION ON THIS ISSUE WHICH IS AS UNDE R:- I RE-ITERATE THAT SUCH OFFERING OF RS.18,65,00,00 0/- WAS MADE SUO MOTO AND TO BUY PEACE AND WAS NOT BACKED BY ANY EVIDENCE OF UND ISCLOSED INCOME OR ANY UNDISCLOSED ASSETS / ITEMS THAT HAD BEEN FOUND / IN VENTORISED BY THE DEPARTMENT AND AS SUCH ON PENALTY U/S 71AAB SHOULD BE IMPOSED. THE SIMILAR VIEW HAS ALSO BEEN EXPRESSED BY THE HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF GIRISH DEVCHAND RAJANI [2013] 33 TAXMAN N.COM 174 (GUJARAT) WHERE IT HAD BEEN HELD THAT WHERE ASSESSEE TO BUY P EACE AND TO AVOID PROTRACTED LITIGATION FILED REVISED RETURN DISCLOSE D DISCLOSING ADDITIONAL INCOME, IMPOSITION OF PENALTY UNDER SECTION 271(1)( C) UPON ASSESSEE ON PLEA THAT HE HAD FURNISHED INACCURATE PARTICULARS OF INC OME WAS NOT JUSTIFIED. FURTHER, IN THE CASE OF PUNJAB TYRES [1986] 162 IT R 517 (MADHYA PRADESH), THE HON'BLE HIGH COURT OF MADHYA PRADESH ALSO HELD THAT WHEN SURRENDER IS MADE TO PURCHASE PEACE OR FOR OTHER SIMILAR REASON, SURRENDER CANNOT AMOUNT TO ADMISSION, CONSTITUTING EVIDENCE OF CONCEALMENT IN PENALTY PROCEEDINGS. I ALSO RELY ON THE JUDGEMENT OF THE SUPREME COURT O F INDIA IN THE CASE OF DILIP N. SHROFF VS. JT. CIT [2007] 291 ITR 519 (SC) WHERE IN IT WAS HELD THAT IMPOSITION OF PENALTY IS NOT AUTOMATIC. LEVY OF PEN ALTY IS NOT ONLY DISCRETIONARY IN NATURE, BUT SUCH DISCRETION IS REQ UIRED TO BE EXERCISED ON THE PART OF THE ASSESSING OFFICER, KEEPING THE RELEVANT FACTORS IN MIND. IN THIS REGARD, I WOULD LIKE TO STATE THAT ASSESSME NT HAS BEEN COMPLETED BASED ON THE EXPLANATIONS GIVEN AND DOCUMENTS PRODUCED DU RING THE COURSE OF ASSESSMENT WITHOUT MAKING ANY FURTHER ADDITION ON T HE GROUND OF DISCLOSURE. I HAD BEEN A CO-OPERATIVE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. I HAVE CONSIER4ED THE FINDINGS IN THE PENALTY ORDER AND SUBMISSIONS MADE BY THE AR DURING THE APPELLATE PROCEEDINGS. I FIND THAT THE A O HAS TAKEN THE UNDISCLOSED INCOME OF THE ASSESSEE FOUND DURING THE SEARCH OPERATION U /S. 1132 (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 ANY FURTHER LITIGATION. THE ASSESSEE HAS BROUGHT ON REC ORD THE CASE LAW OF DILIP N SHROFF VS CIT (2007) 291 ITR 519 (SC). IN THIS CASE LAW TH E HON'BLE SUPREME COURT HAS HELD THAT IMPOSITION OF PENALTY IS NOT AUTOMATIC. LEVY O F PENALTY IS NOT ONLY DISCRETIONARY IN NATURE, BUT SUCH DISCRETION IS REQUIRED TO BE EXERC ISED ON THE PART OF THE ASSESSING ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 6 OFFICER KEEPING THE RELEVANT FACTORS IN MIND. THE A R HAS ALSO BROUGHT ON RECORD THE CASE OF PUNJAB TYRES (PUNJAB TYRES [1986] 162 ITR 5 17 (MADHYA PRADESH), THE HON'BLE HIGH COURT MADHYA PRADESH) IN WHICH IT WAS HELD THAT WHEN SURRENDER IS MADE TO PURCHASE PEACE OR FOR OTHER SIMILAR REASON, SURRENDER CANNOT AMOUNT TO ADMISSION, CONSTITUTION EVIDENCE OF CONCEALMENT IN PENALTY PROCEEDINGS. THE AR HAS BROUGHT ON RECORD THE CASE LAW OF SUDHAR SAN SILK AND SAREES, 300 ITR 30 (SC) IN THIS CASE, THE HON'BLE SUPREME COURT HAS HE LD THAT IF THE APPELLANT OFFERS ANY AMOUNT FOR TAXATION FOR THE PURPOSE OF PURCHASING P EACE AND ASSESSMENT HAS BEEN MADE BASED UPON THE AFORESAID OFFERINGS, EVEN IF NO ASSURANCE IN WRITING IS GIVEN BY THE SEARCHING PARTY, IT MAY BE CLEARLY INFERRED THA T SUCH AN INDUCEMENT MUST HAVE BEEN GIVEN BY THE SEARCHING PARTY. WHEN ONLY PARTIA L EVIDENCE OR NO EVIDENCE IN SUPPORT OF CONCEALMENT WAS DETECTED DURING THE SEAR CH, WHY WOULD A PERSON GO TO OFFER A HIGHER AMOUNT UNLESS HE WAS PROMISED SOME R ECIPROCAL BENEFITS LIKE NOT BEING VISITED BY PENALTY. THUS, SIT WAS HELD THAT WHERE A DDITIONS HAVE BEEN MADE BASED ON ASSESSEES OWN OFFERINGS, PENALTY PROVISION SHALL N OT LIE. I FIND THAT DURING THE SEARCH AND SEIZURE OPERATION U/S. 132 IN THIS CASE EVIDENCES REGARDING CONCEALMENT/UNDISCLOSED INCOME IN THE FOR M OF CASH SEIZURE/PAPERS/DOCUMENTS/STOCK ETC WERE FOUND AND S EIZED OF THE VALUE OF RS.1385737/- ONLY. NOTHING INCRIMINATING/NO EVIDENC ES WERE FOUND REGARDING RS.186500000/- WHICH WAS OFFERED FOR TAXATION BY TH E ASSESSEE SUO MOTO IN ORDER TO BUY PEACE OF MIND. I ALSO FIND THAT NEITHER THE OFF ERS IN THE INVESTIGATION WING IN THE POST SEARCH INVESTIGATION NOR THE ASSESSING OFFICER DURING ASSESSMENT PROCESS FOUND ANY DISCRIMINATING EVIDENCE OF UNDISCLOSED INCOME O THER THAN THE STATEMENT OF THE ASSESSEE FOR MAKING THE ADDITION OF RS.186500000/-. FURTHER I FIND THAT THE AO HAS LEVIED PENALTY U/S. 271AAB(1)(C). THIS SECTION READ LIKE SUM COMPUTED AT THE RATE OF THIRTY PER CENT OF THE 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.186500000/- WAS OFFERED FOR TAXATION BY THE ASSESSEE SUO MOTO IN THE STATEM ENT RECORDED AT THE TIME OF SEARCH. FROM THE RATIO DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF 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 PENALTY. HERE IT IS ALSO CLEAR THAT FROM THE STATEMENT OF THE ASSESSEE ONE C ANNOT POINT OUT WHICH AMOUNT OF UNDISCLOSED INCOME PERTAINS TO WHICH SPECIFIED PREV IOUS YEAR. IN THIS SITUATION, WHERE NOTHING IS CLEAR FROM ASSESSEES STATEMENT RECORDED AT THE TIME OF SEARCH, THE ACTION OF THE AO TO LEVY PENALTY U/S. 271AAB(1)(C) ON THE AMOUNT OFFERED BY THE ASSESSEE SUO MOTO TO BUY PEACE OF MIND, CANNOT BE JUSTIFIED. THE HON'BLE SUPREME 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 SUDARSHAN SILK & SAREES (SUPRA)]. THUS, RESPECTFULLY FOLLOWING THE RATIO DE CIDED BY THE HON'BLE SUPREME COURT, THE AO IS DIRECTED TO CALCULATE AND LEVY PEN ALTY U/S. 271AAB(1)(C) ON RS.13585737/- ONLY. ACCORDINGLY, ASSESSEES APPEAL ON GROUNDS NO 1, 2 AND 3 ARE PARTLY ALLOWED. ALL THIS LEAVES BOTH THE PARTIES AGGRIEVED. THE REV ENUES CASE SEEKS TO REVIVE THE ASSESSING OFFICERS ACTION IMPOSING IMPUGNED PENALT Y IN ENTERETY WHEREAS THE ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 7 TAXPAYERS ARGUMENT IN HIS CROSS-OBJECTION THAT CIT (A) OUGHT TO HAVE DELETED THE IMPUGNED PENALTY IN ISSUE IN FULL; RESPECTFULLY. 7. 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 ON ACCOUNT OF ASSESSEE HAVING DECLARED HIS UNDISCLOSED INCOME OF 20,00,85,737/- COMPRISING VARIOUS HEAD(S) (SUPRA). OUR ATTENTION IS ALSO INVITED TO VARIOUS CASE LAWS:- A) CIT VS. PUNJAB TYRES (1986) 162 ITR 517 (MP) B) P.CIT VS. DR. VANDANA GUPTA (2018) 92 TAXMANN.CO M 229 (DEL) C) SANDEEP CHANDAK VS. PCIT (2018) 93 TAXMANN.COM 4 06(SC) D) PRASANNA DUGAR VS. CIT (2016) 70 TAXMANN.COM 175 (SC) E) MAK DATA (P) LTD. VS. CIT (2013) 38 TAXMANN.COM 448 (SC) THE REVENUE FURTHER FILES ITS WRITTEN SUBMISSIONS T O THE FOLLOWING EFFECT:- STATEMENT OF FACTS: IN CONSEQUENCE OF SEARCH & SEIZURE/SURVEY OPERATION CARRIED OUT IN THE BUSINESS PREMISES OF THE ASSESSEE AND IN RESIDENTIAL PREMISE S OF THE DIRECTORS OF THE ASSESSEE ON 13.02.2013, THE ASSESSEE HAS ADMITTED AN UNDISCLOSE D INCOME OF RS.1,44,50,000/- U/S. 132(4). THE ASSESSEE HAS ALSO SUBMITTED MANNER OF E ARNING OF SEARCH INCOME AND APPLICATION THEREOF IN THEIR DISCLOSURE PETITION U/ S. 132(4) THAT THE MANNER OF EARNING OF THE SAME IS OUT OF BUSINESS ACTIVITIES W HICH ARE OUT OF FAMILY BUSINESS ACTIVITIES. THE DISCLOSED INCOME OF RS.1,44,50,000/- WAS CONSID ERED AS UNDISCLOSED INCOME IN THE ORDER PASSED U/S. 143(3) FOR THE SPEC IFIED YEAR 2013-14. ACCORDINGLY, PENALTY NOTICE U/S. 271AAB(1)(C) WAS IMPOSED FOR RS .43,35,000/- ON 29.09.2016. THE ASSESSEE PREFERRED APPEAL AGAINST THE ORDER U/S . 271AAB(1)(C) BEFORE THE CIT(A)- 20 KOLKATA WHO HAS HELD IN VIEW OF SEVERAL CITED CO URTS DECISION INCLUDING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F SUDHARSAN SILK AND SAREEES, (300 ITR 30) AND DILIP N. SHROFF VS. JT. CIT (291 I TR 519) THAT NO EVIDENCE WAS DETECTED DURING THE SEARCH/SURVEY OPERATION IN RESP ECT OF DISCLOSED INCOME OF RS.1,44,50,00/- AND THE ASSESSEE HAS OFFERED ONLY F OR BUYING PEACE OF MIND. HENCE THE PENALTY LEVIED BY THE AO ON SUCH SUO MOTO DISCLOSED INCOME IS NOT JUSTIFIED. THE CASE LAWS CITED BY THE ASSESSEE ARE DIFFERENT T HAN THE FACTS OF THE INSTANT CASE WHICH IS BEING DISCUSSED BELOW: 1. SUDARSHAN SILK AND SAREES FACTS OF THE CASE ARE: DURING SEARCH CONDUCTED AT THE PREMISES OF THE ASSE SSEE-FIRM, CERTAIN INCRIMINATING DOCUMENTS WERE UNEARTHED EVIDENCING C ONCEALMENT OF INCOME BY THE ASSESSEE. THE ASSESSEE FILED ITS REVISED RETURN S DECLARING SUCH ADDITIONAL INCOME AS HAD BEEN ESTIMATE BY THE SEARCH PARTY. TH OUGH THE INCOME AS PER REVISED RETURNS WAS ACCEPTED IN TOTO, YET THE ASSES SING OFFICER CHOSE TO LEVY THE MAXIMUM PENALTY UNDER SECTION 271(1)(C) ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 8 OBSERVATION OF THE AO. 1. THIS IS TO BRING TO THE RECORD THAT THERE IS NO MEN TION OF THE FACT THAT IF EVIDENCE IS NOT DETECTED COMMENSURATE TO THE DISCLOSED INCOME, THEN FOR THAT PART PENALTY SHOULD NOT BE LEVIED. STATUTE ONLY DESCRIBES OF THE PERIMETER OF THE LEVIABLE PENALTY IN THREE DIFFERENT CIRCUMSTANCES WHERE THE PENALTY IS HARSHER IF GUIDELINES ARE NOT FOLLOWED AND EVEN IF ALL THE GUIDELINES ARE ADHERED AND MATCHED, THEN ALSO THERE IS A MINIMUM PENALTY ON THE DISCLOSURE. SAME IS SH OWN IN THE TABLE BELOW: TIME OF DICLOSURE OF UNDISCLOSED INCOME BY THE ASSESSEE PENALTY U/S 271AAA PENALTY U/S 271AAB AT ANY TIME DURING THE COURSE OF SEARCH NIL 10% OF THE UNDISCLOSED INCOME. BETWEEN ANY TIME FROM THE DATE OF TERMINATION OF SEARCH TO DATE OF RETURN FILING 10% OF THE UNDISCLOSED INCOME. 20% OF THE UN-DISCLOSED INCOME. AT ANY TIME AFTER THE RETURN FILING DATE 20% OF THE UNDISCLOSED INCOME. MIN. 30%-MAX 90% OF THE UNDISCLOSED INCOME AS PER THE DISCRETION OF INCOME-TAX OFFICER. LEGISLATIVE INTENT IS VERY CLEAR THAT SEC. 271AAA A ND SEC 271AAB ARE MUTUALLY EXCLUSIVE. BOOTH CANNOT BE LEVIED UPON THE AS SIMUL TANEOUSLY. THE SOLE INTENT OF SEC. 271AAB IS TO FASTEN THE LOOPS OF SEC. 271AAA A ND TO FORBID THE DEFAULTER TO ESCAPE BY ANY MEANS WHATSOEVER WITHOUT PAYING TAXES ON UNEXPLAINED MONEYS. RELEVANT PART FROM THE MEMORANDUM OF THE BUDGET YEA R OF INTRODUCTION IS PRODUCED BELOW IN VERBATIM.: UNDER THE EXISTING PROVISIONS OF SECTION 271AAA OF THE INCOME-TAX ACT, NO PENALTY IS LEVIED IF THE ASSESSEE ADMITS THE UNDISC LOSED INCOME IN A STATEMENT UNDER SUB-[SECTION (4) OF SECTION 132 RECORDED IN T HE CURSE OF SEARCH AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF SUCH INCOME. AS A RESULT, UNDISCLOSED INCOME ( FOR THE CURRENT YEAR IN WHICH SEARCH TAKES PLACE OR THE PREVIOUS YEAR WHICH HAS ENDED BEFORE THE SEARCH AND FOR WHICH RETURN IS NOT YET DUE ) FOUND DURING THE COURSE OF SEARCH ATTRACTS A TAX AT THE RATE OF 30% AND NO PENALTY IS LEVIABLE. IN ORDER TO STRENGTHEN THE PENAL PROVISIONS, IT IS PROPOSED TO PROVIDE THAT THE PROVISIONS OF SECTION 271AAA WILL NOT BE APPLICABLE FOR SEARCHES CONDUCTED BEFORE 1 ST JULY, 2010. IT IS ALSO PROPOSED TO INSERT A NEW PROVISION IN THE ACT ( SECTION 271AAB ) FOR LEVY OF PENALTY IN A CASE WHERE SEARCH HAS BEEN INITIATED ON OR AFTER 1S TE JULY, 2012. THE NEW SECTION PROVIDES THAT, - (I) IF UNDISCLOSED INCOME IS ADMITTED DURING THE COURSE OF SEARCH, THE TAXPAYER WILL BE LIABLE FOR PENALTY AT THE RATE OF 10% OF UNDISCLOSED INCOME SUBJECT TO THE FULFILLMENT OF CE RTAIN CONDITIONS. (II) IF UNDISCLOSED INCOME IS NOT ADMITTED DURING THE COURS E OF SEARCH BUT DISCLOSED IN THE RETURN OF INCOME FILED AFTER THE SEARCH, THE TAXPAYER WILL BE LIABLE FOR PENALTY AT THE RATE OF 20% OF UNDISCLOSED INCOME SU BJECT TO THE FULFILLMENT OF CERTAIN CONDITIONS. (III) IN A CASE NOT COVERED UND ER (I) AND (II) ABOVE, T HE TAXPAYER WILL BE LIABLE FOR PENALTY AT THE RATE RAN GING FROM 30% TO 90% OF UNDISCLOSED INCOME. THESE AMENDMENTS WILL TAKE EFFE CT FROM THE 1 ST DAY OF ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 9 JULY, 2011 AND WILL, ACCORDINGLY, APPLY TO ANY SEAR CH AND SEIZURE ACTION TAKEN AFTER THIS DATE. 2. IT WILL ONLY PROVIDE AN EXIT MECHANISM TO THE DEFAU LTERS FROM THE IMPROVED AND AMENDED PROVISION OF THE PENALTY IF SEARCH PARTY HA VE NOT COLLECTED THE EVIDENCE FOR EVERY SINGLE PENNY DISCLOSED BY THE CONCERNED A SSESSEE. SAME VIEW IS ALSO EXPRESSED BY THE JURISDICTIONS HIGH COURT OF CALCUT TA IN THE CASE OF CIT VS. PRASANNA DURGAR, JUDGMENT OF WHICH IS AS FOLLOWS:- THE FACTS OF THE CASE ARE THAT A SEARECH UNDER SE CTION 132 WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE ON FEBRUARY 3, 2009, I N COURSE OF SEARCH, THE ASSESSEE MADE VOLUNTARY DISCLOSURE UNDER SECTION 13 2(4) DISCLOSING A SUM OF RS.6 CRORES EVEN THOUGH NO INCRIMINATING DOCUMENT S UGGESTING ANY SUCH UNDISCLOSED INCOME WAS FOUND. THE SAID DISCLOSURE, AS PER THE SAID DEPOSITION OF THE ASSESSEE RECORDED UNDER SECTION 131 WAS BIFU RCATED INTO 3 PERSONS, I.E. OF RS.3,50,00,000 WAS DISCLOSED IN THE NAME OF THE ASSESSEE, RS.2,25,00,000 WAS DISCLOSED IN THE NAME OF THE ASSESSEES WIFE, S MT. RAJSHREE DUGOR, AND RS.25,00,000 WAS DISCLOSED IN THE NAME OF THE LIMIT ED COMPANY, VIZ., INDIAN GEM AND JEWELLERY (IMPERIAL) PVT. LTD. IN WHICH THE ASSESSEE HAD SUBSTANTIAL INTEREST. IT MAY BE REPEATED THAT NO CONCEALED INCO ME WAS ESTABLISHED FROM ANY OF THE PAPERS AND DOCUMENTS FOUND IN THE COURSE OF SEARCH IN THE PANCHANAMA OF THE ASSESSEE OR IN OTHER PANCHANAMAS. THE ENTIRE DISCLOSURE WAS MADE VOLUNTARILY AND IN GOOD FAITH WHICH IS APP ARENT FROM QUESTION AND ANSWER NO.22 IN THE STATEMENT RECORDED UNDER SECTIO N 131 WHEREIN THE ASSESSEE CATEGORICALLY STATES THAT HE IS VOLUNTARIL Y DISCLOSING THE INCOME EVEN THOUGH NO INCRIMINATING DOCUMENTS HAVE BEEN FOUND A ND ALL THE PURCHASES AND SALES ARE CORRECTLY RECORDED AND THE DISCLOSURE WAS MADE JUST TO COVER THE PAPERS AND DOCUMENTS WHICH HE MAY NOT BE ABLE TO EX PLAIN. THE ASSESSEE BIFURCATED HIS OWN DISCLOSURE OF RS.3.50 LAKHS IN R ESPECT TO TWO PARTS, I.E. RS.70,00,000 FOR THE ASSESSMENT YEAR 2008-09 AND RS .2.80 LAKHS FOR THE ASSESSMENT YEAR 2009-10. ON THE BASIS OF THE DISCLOSURE, THE ASSESSEE FILED A RETURN ON MARCH 31, 2010, OFFERING A SUM OF RS.70,00,000 FOR TAXATION E ARNED DURING THE ASSESSMENT YEAR 2008-09. IT IS NOT IN DISPUTED THAT FOR THE ASSESSMENT YEAR 2008-09, THE ASSESSEE HAD EARLIER FILED HIS RE TURN IN WHICH THE AFORESAID SUMS OF RS.70,00,000 WAS NOT DISCLOSED. T HE CASE OF THE ASSESSEE, AS SUCH, CAME SQUARELY WITHIN THE PROVISI ON OF SECTION 271(1)(C) OF THE INCOME-TAX ACT. THE ASSESSING OFFICER PASSED AN ORDER OF PENALTY, A S INDICATED EARLIER, WHICH WAS AFFIRMED BY THE APPELLATE AUTHORITY. THE TRIBUNAL INTERFERED WITH THE ORDER OF THE APPELLATE AUTHORITY ON THE BA SIS OF A JUDGMENT OF THE APPELLATE TRIBUNAL, MUUMBAI, IN THE CASE OF IT O (CENTRAL) V. GOPE M ROCHALANI [IT APPEAL NO. 7737 (MUM.) OF 201 1, DATED 25-05- 2013]. THE AFORESAID JUDGMENT, MR. KHAITAN SUBMITTE D, HAS TO BE READ IN CONJUNCTION WITH CLAUSE (B) OF EXPLANATION 5A TO SECTION 271(1), WHICH PROVIDES AS FOLLOWS: (B) THE DUE DATE FOR FILING THE RETURN OF INCOME F OR SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETU RN THE AFORESAID CLAUSE, WE ARE INCLINED TO THINK, IS NOT APPLICABLE TO THE CASE OF THE ASSESSEE FOR THE SIMPLE REASON THAT IT IS NOT THE CASE OF THE ASSESSEE THAT HE HAD NOT FILED RETURN FOR THE ASSES SMENT YEAR 2008-09. ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 10 CLAUSE (B) QUOTED ABOVE, ACCORDING TO US, SHALL NOT APPLY TO THOSE CASES WHERE THE ASSESSEE HAD FILED A RETURN BUT DID NOT DISCLOSE THE INCOME, AS IN THIS CASE. HIS CASE SHALL BE COVERED BY CLAUSE (A), WHICH PROVIDES AS FOLLOWS: (A) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS Y EAR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN. THE TRIBUNAL, AS SUCH, FELL INTO AN ERROR IN PROCEE DING ON THE BASIS THAT THE ASSESSEE IS ENTITLED TO GET THE BENEFIT/IMMUNIT Y UNDER CLAUSE (B) QUOTED ABOVE. THE TRIBUNAL ALSO APPEARS TO HAVE, FO R THE PURPOSE OF INTERFERING WITH THE ORDER OF THE APPELLATE AUTHORI TY, RELIED UPON ITS OWN JUDGMENT IN THE CASE OF AJIT KUMAR SURANA V. A SSTT. CIT [IT APPEAL NOS. 835 & 836 (KOL) OF 2013, DATED 19-6-201 3] WHICH, EVEN MR. KHAITAN DID NOT DISPUTE, HAS NO MANNER OF APPLI CATION TO THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. IN THE CASE OF AJIT KUMAR SURANA, THERE WAS NO SEARCH AND SEIZURE. IN THE CAS E BEFORE US THERE WAS, IN FACT, A SEARCH AND SEIZURE ON FEBRUARY 3, 2 009. DURING THE SEARCH AND SEIZURE, THE DISCLOSURE WAS MADE ON FEBR UARY 3, 2009. DURING THE SEARCH AND SEIZURE, THE ASSESSEE MADE A STATEMENT WHICH WAS RECORDED BY THE OFFICERS OF THE REVENUE. STRESS WAS LAID BY THE TRIBUNAL ON THE EXPRESSION VOLUNTARY BUT THE TRIBUNAL FAILED TO UNDERSTAND THAT THE MEANING OF THE EXPRESSION VOLUNTARY IN THE CONTEXT IS THAT THE STATEMENT MADE BY HIM WAS NOT E XTORTED FROM HIM BY APPLYING FORCE. IT IS IN THAT SENSE A VOLUNTARY DIS CLOSURE WHICH HAS BEEN CLARIFIED BY THE ASSESSEE BY STATING IN ANSWER TO QUESTION NO. 23 THAT HE HAD NOT GIVEN ANY STATEMENT UNDER PRESSURE AND HE DID NOT WANT TO RECTIFY OR MODIFY THE STATEMENT MADE BY HIM . FOR THE AFORESAID REASONS, WE ARE OF THE OPINION, T HAT THE ORDER OF THE TRIBUNAL IN UNSUSTAINABLE IN LAW AND, THEREFORE, IS SET ASIDE. THE ORDER OF THE APPELLANT AUTHORITY IS, THEREFORE, RESTORED. THE APPEAL AND THE APPLICATIONS ARE THUS DISPOSED O F. 3. IN CASE OF MAK DATA PVT LTD. VS. CIT, HONOURABLE SC HAVE OBSERVED FOLLOWING: ASSESSEE HAS ONLY STATED THAT HE HAD SURRENDERED T HE ADDITIONAL SUMS WITH A VIEW TO AVOID LITIGATION, BUY PEACE AND TO CHANNELI ZE THE ENERGY AND RESOURCES TOWARDS PRODUCTIVE WORK AND TO MAKE AMICABLE SETTLE MENT WITH THE INCOME TAX DEPARTMENT. STATUE DOES NOT RECOGNIZE THOSE TYPES OF DEFENCES U NDER THE EXPLANATION 1 TO SECTION 271(1)(C). IT IS STRITE LAW THAT THE VOLUNT ARY DISCLOSURE DOES NOT RELEASE THE ASSESSEE FROM THE MISCHIEF. OF PENAL PROCEEDING S UNDER SECTION 271(1)(C). THE LAW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKE S A VOLUNTARY DISCLOSURE OF HIS CONCEALED INCOME, HE HAS TO BE ABSOLVED FORM PENALTY. [PARA 7]. THE SURRENDER OF INCOME ON THIS CASE IS NOT VOLUNTA RY IN THE SENSE THAT THE OFFER OF SURRENDER WAS MADE IN VIEW OF DETECTION MA DE BY THE ASSESSING OFFICER IN THE SEARCH CONDUCTED IN THE SISTER CONCE RN OF THE ASSESSEE. IN THAT SITUATION, IT CANNOT BE SAID THAT THE SURRENDER OF INCOME WAS VOLUNTARY. ABOVE LANGUAGE CLEARLY SUPPORT THE CONTENTION OF OF FICE OF UNDERSIGNED. CONSIDERING THE REVENUE INVOLVED WHICH IS RS.43,35, 000/- AND THE FACTS OF THE CASE DISCUSSED ABOVE, APPEAL BEFORE ITAT, IF DEEM F IT, MAYBE FILED IN THIS CASE. ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 11 THE ASSESSEES ARGUMENT ON THE OTHER HAND IN REVENU ES APPEAL IS THAT THE CIT(A) HAS RIGHTLY DELETED THE IMPUGNED PENALTY NOT BASED ON A NY CORROBORATED EVIDENCE FOUND OR SEIZED DURING THE COURSE OF SEARCH. 8. IT IS IN THIS BACKDROP OF PLEADINGS THAT WE NOTI CE THAT THE INSTANT ISSUE AS TO WHETHER THE IMPUGNED SEC. 271AAB PENALTY IS AUTOMAT IC POST SEARCH INVOLVING THE SEARCHED ASSESSEES DISCLOSURE FOLLOWED BY ASSESSME NT PROCEEDINGS OR NOT; STANDS ANSWERED IN THIS TRIBUNALS CO-ORDINATE BENCHS DEC ISION IN DCIT VS. AKA LOGISTICS PVT. LTD. & ORS. IN ITA NO. 1604, 1607 & 1610/KOL/2017 DECIDED ON 27.02.2019 AS FOLLOWS:- 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 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 ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 12 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. 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. ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 13 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. 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. ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 14 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, 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 ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 15 (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 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. ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 16 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 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' . ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 17 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 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 ITA NO.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 18 ASSESSEES INSTANT CROSS OBJECTION 97/KOL/2017 CHAL LENGING CORRECTNESS OF CIT(A)S ACTION SUSTAINING PENALTY OF 17 LAC FAILS THEREFORE. 9. COMING TO REVENUES CASE LAW, WE FIND THAT THE S AME HAS BEEN ADEQUATELY DISCUSSED IN TRIBUNALS ABOVE EXTRACTED DECISION. W E NOTICE THAT MOST OF THE JUDICIAL PRECEDENTS QUOTED AT THE REVENUES BEHEST DO NOT PE RTAIN TO SEC. 271AAB PROCEEDINGS. WE THEREFORE ADOPT LEARNED CO-ORDINATE BENCHS DECISION IN AKA LOGISTICS PVT. LTD. & ORS. (SUPRA) MUTATIS MUTANDIS TO CONFIRM THE CIT(A)S FINDINGS FORMING SUBJECT-MATTER CHALLENGE IN REVENUES LEAD APPEAL ITA NO.232/KOL/2017. 10. COMING TO ASSESSEES CROSS-OBJECTIONS SEEKING T O DELETE IMPUGNED PENALTY IN ENTERITY, MR. TIBREWAL VEHEMENTLY CONTENDS DURING T HE COURSE OF HEARING THAT THE ASSESSING OFFICERS PENALTY SHOW-CAUSE NOTICE NOWHE RE SPECIFIED THE LIMB IN ISSUE PERTAINING TO UNDISCLOSED INCOME COMPONENT AS TO WH ETHER THE SAME RELATED TO INCOME OR EXPENDITURE SIDE. WE FIND NO MERIT IN ASSESSEES INSTANT TECHNICAL PLEA GOING BY LEARNED CO-ORDINATE BENCHS DECISION HEREINABOVE RE LYING UPON HON'BLE APEX COURTS DECISION IN CASES SANDEEP CHANDAK VS. PCIT (2018) 93 TAXMAN.COM 406 (SC) (SUPRA). WE THEREFORE DECLINE ASSESSEES CROSS-OBJECTION CO NO.37/KOL/2017 AS WELL. 10. SAME ORDER TO FOLLOW IN REVENUES REMAINING APP EAL(S) AS WELL AS ASSESSEES CROSS-OBJECTION(S) HEREIN SINCE IT HAS COME ON RECO RD THAT THE SAME SEEK TO REVIVE AND DELETE THE ASSESSING OFFICERS PENAL ACTION IN ENTI RETY. THE CIT(A) HOLDS IN ALL THESE CASES THAT THE IMPUGNED PENALT(IES) HAS TO BE CONFI RMED TO THE EXTENT IT IS BASED ON SEIZED CORROBORATIVE MATERIAL DURING THE COURSE OF SEARCH. WE THEREFORE UPHOLD THE CIT(A)S FINDINGS UNDER CHALLENGE IN ALL REMAINING CASE AS WELL. 10. THESE REVENUES APPEAL(S) AND ASSESSEES AS MANY CROSS-OBJECTION(S) ARE DISMISSED. 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.232, 234,1485, 1535,1541, & 2293/KOL/2017 & C.O NO.37, 27,84, 88, 108/K/2017 & 107/KOL/2018 A.Y 2013-14 & 14-15 PAGE 19 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SHRI SIDHANT GUPTA, X-12, 2 ND FL, HAUZ KHAS, NEW DELHI-110016/ SHRI SANJAY DHINGR A, H. NO.14, RD. NO.8 PUNJAB BAGH EAST NEW DELHI-110 026/DILIP KR. MODI, 243BG, BLOCK-J, NEW ALIPORE, KOLAKATA -53/KAMLESH AGARWAL, 547, BLOCK N, NEW ALIPORE, KOLKATA-53 /NIRANJAN LAL AGARWAL, P-547, N.BLOCK, NEW ALIPORE, KOLKAT -53/SHRI MURARILAL AGAWAL, P-547 BLOCK-N NEW ALIPORE, KOLKTA -53 2. ' /REVENUE-ACIT, CC-2(3), R. NO.403, 4 TH FLOOR, AAYAKAR BHAWAN, POORVA, 110, SHANTI PALLY; E .M. BYE-PASS, KOLKATA-107 3. . / / CONCERNED CIT 4. / - / CIT (A) 5. 0 **. , . /DR, ITAT, KOLKATA 6. 4 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ .,