Sh. Ashok Jindal, Chandigarh V. DCIT, CC-1, Chandigarh

ITA 1556/CHANDI/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5277 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-07-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 10-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA
• Keywords: Business income; Search and seizure; Deemed to accrue or arise in india
• Section: 153A; 69A; 27; 132

Judgement Text

S , , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A , CHANDIGARH , !' #! $ % , &' BEFORE: SH.SANJAY GARG, JM & SMT.ANNAPURNA GUPTA, A M ./ ITA NO.1556/CHD/2017 / ASSESSMENT YEAR : 2009-10 SHRI.ASHOK JINDAL, HOUSE NO.22, NAC, MANIMAJRA, CHANDIGARH. THE D.C.I.T., CENTRAL CIRCLE-1, CHANDIGARH. ./PAN NO: AAMPJ1996Q /APPELLANT /RESPONDENT & ./ ITA NO.1557/CHD/2017 / ASSESSMENT YEAR : 2009-10 SHRI.AMIT JINDAL, HOUSE NO.21, NAC, MANIMAJRA, CHANDIGARH. THE D.C.I.T., CENTRAL CIRCLE-1, CHANDIGARH. ./PAN NO: ACGPJ8215N /APPELLANT /RESPONDENT /ASSESSEE BY : SHRI SUDHIR SEHGAL, ADV. ! / REVENUE BY : SMT.CHANDERKANTA, SR.DR '# $ /DATE OF HEARING : 16.07.2018 %&'(# /DATE OF PRONOUNCEMENT : 15.10.2018 &( /ORDER PER ANNAPURNA GUPTA, A.M . : BOTH THE ABOVE APPEALS HAVE BEEN FILED BY DIFFEREN T ASSESSEES AGAINST SEPARATE ORDERS OF THE COMMISSIO NER OF INCOME TAX (APPEALS)-3, GURGAON (IN SHORT CIT(A) BO TH DATED 29.8.2017, UPHOLDING THE PENALTY LEVIED U/S 271AAA OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). 2 2. THE FACTS AND THE ISSUE INVOLVED IN BOTH THE APP EALS, IT WAS COMMON GROUND, WERE IDENTICAL, BEING THE LEVY O F PENALTY U/S 271AAA OF THE ACT ON CASH SURRENDERED D URING SEARCH CONDUCTED ON THE ASSESSEES U/S 132 OF THE AC T. THEY WERE THEREFORE HEARD TOGETHER AND ARE BEING DISPOSE D OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. WE SHALL BE DEALING WITH THE ASSESSEES APPEAL IN ITA NO.1556/CHD/2017 AND OUR DECISION RENDERED THEREIN WILL APPLY MUTATIS MUTANDIS TO THE APPEAL OF THE OTHER A SSESSEE IN ITA NO.1557/CHD/2017. 3. BRIEFLY STATED, A SEARCH AND SEIZURE OPERATION W AS CARRIED OUT AT THE RESIDENTIAL AND BUSINESS PREMISE S OF JINDAL GROUP OF CASES OF PANCHKULA ON 15.7.2008 AND THE ASSESSEE WAS ONE OF THE PERSONS COVERED UNDER THE S EARCH ACTION. THE ASSESSEE HAD SURRENDERED AN ADDITIONAL INCOME OF RS.54,87,500/- RELATING TO THE IMPUGNED YEAR ON ACCOUNT OF THE FOLLOWING ASSETS/DOCUMENTS:- 1) CASH FOUND FROM THE RESIDENTIAL PREMISES OF THE ASSESSEE GROUP AMOUNTING TO RS.11 LACS. 2. PAGES 54 TO 59, OF ANNEXURE A-10 OF DELTA-I, AMOUNTING TO RS.60,000/-. 3. ANNEXURE A-8 OF DELTA-3 AMOUNTING TO RS.38,50,000/-. 4. CAPITAL INTRODUCED IN FIRMS AMOUNTING TO RS.4,77,500/-. 4. THE ABOVE SURRENDER WAS DISCLOSED IN THE RETURN OF INCOME FILED BY THE ASSESSEE AND WAS ACCEPTED BY TH E REVENUE ALSO. HOWEVER, PENALTY U/S 271AAA WAS INITI ATED 3 AND THEREAFTER LEVIED FOR THE REASON THAT THE ASSES SEE HAD FAILED TO SUBSTANTIATE THE MANNER IN WHICH THE UND ISCLOSED INCOME HAD BEEN EARNED BY HIM. 5. THE MATTER WAS CARRIED IN APPEAL BEFORE THE LD.C IT(A), WHO FOLLOWED THE DECISION OF ITAT CHANDIGARH BENCH IN THE CASE OF DCIT VS. SHRI SANJEEV GOYAL IN ITA NO.109/CHD/2015 FOR ASSESSMENT YEAR 2011-12,AS PER WHICH IF THE ASSESSEE HAD DISCLOSED INCOME WHILE GIVING S TATEMENT U/S 132(4) DURING THE COURSE OF SEARCH AND PAID TAX THEREON AND SHOWED THE SAID UNDISCLOSED INCOME IN THE RETUR N UNDER THE HEAD INCOME FROM BUSINESS NO PENALTY U/S 271A AA WAS LEVIABLE . IN VIEW OF THE AFORESAID DECISION, THE L D.CIT(A) HELD THAT THE ASSESSEE HAD SPECIFIED AND SUBSTANTI ATED THE MANNER OF EARNING THE INCOME WITH REGARD TO SURREN DER MADE OF CAPITAL INTRODUCED IN THE FIRMS AND THE DOC UMENTS RELATING TO ANNEXURE A-10 AND A-8, AND CONSEQUENTL Y DELETED THE PENALTY LEVIED ON THE SAME. HOWEVER, VI S--VIS SURRENDER OF CASH OF RS.11 LACS, THE LD.CIT(A) HELD THAT AS PER THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KIM PHARMA PVT. LTD. VS. CIT (P&H) (200 3) 258 CTR 458, THE SAME WAS ASSESSABLE AS DEEMED INCOME O F THE ASSESSEE U/S 69A OF THE ACT AND NOT BUSINESS INCOME AND SINCE NO EXPLANATION WITH REGARD TO THE SAME HAS BE EN FURNISHED, PENALTY U/S 271AAA ON THE SAME WAS UPHEL D. THE RELEVANT FINDINGS OF THE LD.CIT(A) AT PARA 5- 5.4 O F HIS ORDER ARE AS UNDER: 4 5. DECISION:- I HAVE CONSIDERED THE BASIS OF PENALTY IMPOSED BY T HE AO AND THE SUBMISSIONS MADE BY THE AR OF THE APPELLANT. THE PE RUSAL OF THE PROVISIONS OF THE SECTION 271AAA MAKE IT CLEAR THAT THE PENALTY CAN B E LEVIED ON UNDISCLOSED INCOME OF THE SPECIFIED YEAR IF THE CONDITIONS SPEC IFIED IN THE SUB-SECTION (2) OF SECTION 271AAA ARE NOT SATISFIED. IT, THEREFORE, FO LLOWS THAT FIRST THING TO DETERMINE IS WHAT IS THE AMOUNT OF UNDISCLOSED INCO ME UNDER THE GIVEN CIRCUMSTANCES. THE CONCEPT OF UNDISCLOSED INCOME HA S BEEN CLEARLY DEFINED BY EXPLANATION TO SECTION 271AAA. HOWEVER, THE AO HAS IMPOSED THE PENALTY ON THE GROUND THAT THE APPELLANT HAD NOT SUBSTANTIATED THE MANNER IN WHICH THE INCOME WAS EARNED. 5.1 THE AO HAS MADE FOLLOWING OBSERVATIONS IN THIS CASE: (I) THE ASSESSEE MADE A SURRENDER OF RS. 54,8 7,5007- FOR THE YEAR UNDER CONSIDERATION. (II) THIS DISCLOSURE WAS DECLARED IN THE RETUR N OF INCOME. (III) THE ASSESSEE FAILED TO SUBSTANTIATE THE M ANNER IN WHICH THE INCOME HAS BEEN EARNED, (IV) IN VIEW OF THE SAME, PENALTY U/S 271AAA W AS IMPOSED. 5.2 THE APPELLANT DURING THE APPELLATE PROCEEDINGS HAS SUBMITTED AS FOLLOWS:- (I) THE APPELLANT ADMITTED THE UNDISCLOSED IN COME OF RS. 54,87,500/- DURING THE YEAR UNDER CONSIDERATION AND DISCLOSED T HE SAME IN RETURN FILED.' (II) THE INCOME TAX ALONGWITH INTEREST WAS PAI D ON THIS SURRENDERED AMOUNT. (III) THE APPELLANT HAS SUBSTANTIATED THE MANNER OF EARNING UNDISCLOSED INCOME. 5.3 I HAVE GONE THROUGH THE ORDER OF HON'BLE ITAT, CHANDIGARH BENCH IN CASE OF DCIT VS SHRI SANJEEV GOYAL ITA NO. 109/CHD/ 2015 FOR AY 2011-12 REFERRED TO BY THE APPELLANT AND THE RELEVANT PART OF THE JUDGMENT IS AS FOLLOWS:- '9. THE UNDISPUTED FACTS IN THE PRESENT CASE ARE TH AT DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS U/S 132, THE ASSESSEE HAD SURRENDERED AN AMOUNT OF RS. 1,50,00,OOO/-. IT IS ALSO NOT IN DISP UTE THAT ASSESSEE HAD ATTRIBUTED THIS INCOME AS BEING DERIVED FROM SPECUL ATIVE DEALINGS IN COMMODITIES OUTSIDE THE BOOKS OF ACCOUNTS. IT IS I FURTHER NOT IN DISPUTE'THAT THE ASSESSEE HAD DISCLOSED THE SURREND ERED INCOME IN ITS RETURN OF INCOME AND PAID THE TAXES THEREON. IN THE ABOVE FACTUAL BACKGROUND, IT IS TO SEEN WHET HER PENALTY U/S 271AAA IS LEVIABLE. IT IS THE CONTENTION OF THE REVENUE THAT THOUGH ADM ITTEDLY, THE ASSESSEE HAS SURRENDERED AN INCOME OF RS. 1,50,00,000/- DURING T HE COURSE OF SEARCH AND SEIZURE 5 OPERATION, DISCLOSED THE MANNER OF EARNING THE SAME BEING FROM SPECULATIVE DEALINGS IN COMMODITIES AND ALSO DISCLOSED THE INCOME IN ITS RETURN OF INCOME, THE ASSESSEE HAD NOT SUBSTANTIATED THE MANNER OF EARNING THE UND ISCLOSED INCOME AND HENCE NOT FULFILLED ALL THE CONDITIONS SPECIFIED U/S 2 71AAA FOR GRANT OF IMMUNITY FROM PENALTY. THE ISSUE THEREFORE IS WHETHER ADMISSION OF UNDISCL OSED INCOME AND A DESCRIPTION OF THE NATURE OF THE SAME COULD BE TREA TED AS COMPLIANCE WITH THE CONDITION OF SPECIFYING AND SUBSTANTIATING THE MANNER IN WHICH THE UNDISCLOSED INCOME IS EARNED AS REQUIRED BY THE SEC TION 271AAA(2)(I)AND (II). . WE FIND THAT A SIMILAR REQUIREMENT OF DISCLOSING TH E MANNER IN WHICH UNDISCLOSED INCOME IS EARNED IS ALSO THERE IN EXPLANATION-5 TO SECTION 271(L)(C). INTERPRETING WHICH THE ALLAHABAD HIGH COURT IN THE CASE OFCITVS RADHAKRISHANGOEL ( 2005) 278 ITR 454 OBSERVED FHAT NON DISCLOSURE OF MANNER OF E ARNING THE UNDISCLOSED INCOME IS NOT RELEVANT FOR THE PURPOSE OF AVAILING BENEFIT UN DER EXPLANATION 5 BELOW SECTION 271(L)(C). IN CIT VS MAHENDRA C. SHAH [2008] 215 CT R 493 (GUJ). IT WAS HELD THE ASSESSEE HAVING DECLARED THE VALUE OF DIAMONDS IN H IS STATEMENT UNDER SECTION 132(4) AND PAID TAXES THEREON BEFORE ASSESSMENT WAS ENTITLE TO IMMUNITY FROM PENALTY UNDER SECTION 271(L)(C) UNDER EXPLANATION 5 THEREOF EVEN THOUGH THE STATEMENT DID NOT SPECIFY THE MANNER IN WHICH THE I NCOME REPRESENTING VALUE OF DIAMONDS IN HIS STATEMENT UNDER SECTION 132(4) AND PAID TAXES THEREON BEFORE ASSESSMENT WAS ENTITLED TO IMMUNITY FROM PENALTY UN DER SECTION 271(L)(C) UNDER EXPLANATION 5 THEREOF EVEN THOUGH THE STATEMENT DID NOT SPECIFY THE MANNER IN WHICH THE INCOME REPRESENTING VALUE OF DIAMONDS WAS DERIVED. WITH RESPECT TO SUCH REQUIREMENT IN RELATION TO SECTION 271AAA, IT HAS B EEN HELD IN THE CASE OFPRAMOD KUMAR JAIN V. DY. CIT (2013) 33 TAXMANN.COM 651 (CT K) THAT THE DISCLOSURE OF INCOME UNDER SECTION 132(4) DURING THE COURSE OF SE ARCH HAVING BEEN MADE AND THE ASSESSEE HAVING SURRENDERED CERTAIN INCOME FOR THE RELEVANT ASSESSMENT YEARS IN THE STATEMENTS DURING THE COURSE OF SEARCH AND FILE D RETURNS DECLARING THE SAME PURSUANT TO NOTICE UNDER SECTION 153A AND WHICH RET URNS HAVE BEEN ACCEPTED BY THE AO, LEVY OF PENALTY UNDER SECTION 271AAA WAS NOT JU STIFIED ON THE GROUND THAT THE ASSESSEE HAS THOUGH MADE DISCLOSURE BUT FAILED TO S PECIFY THE MANNER IN WHICH SUCH INCOME HAD BEEN DERIVED. HON'BLE TRIBUNAL FURTHER H ELD THAT NO DEFINITION COULD BE GIVEN TO THE 'SPECIFIED MANNER' AND THERE IS NO PRESCRIBED M ETHOD GIVEN IN THE STATUTE TO INDICATE THE MANNER IN WHICH INCOME WAS GENERATED. IT HAS BEEN HELD IN THE CASE OF ASHOK KUMAR SHARMA V DY. CIT [2013] 33 TAXMANN.COM 652 (CTK) THAT WHEN ASSESSEE DISCLOSED CONCEALED INCOME WHILE GIVING STATEMENT UNDER SECTION 132(4) DURING THE CO URSE OF SEARCH AND PAID TAX THEREON AND SHOWED THE SAID UNDISCLOSED INCOME IN T HE RETURN UNDER THE HEAD 'INCOME FROM BUSINESS' AND WHICH UNDISCLOSED INCOME HAS BEEN ACCEPTED BY THE DEPARTMENT, PENALTY UNDER SECTION 271AAA IS NOT LEVIABLE. 11. IN VIEW OF THE ABOVE JUDICIAL PRECEDENTS WE FI ND THAT THE ASSESSEE HAS SPECIFIED AND SUBSTANTIATED THE MANNER OF EARNING T HE INCOME AND HAS NOT VIOLATED ANY OF THE CONDITIONS SPECIFIED U/S 27 1AAA(2), FOR GRANTING IMMUNITY FROM PENALTY. 12. WE THEREFORE HOLD THAT NO PENALTY U/S 271AAA CO ULD BE LEVIED IN THE PRESENT CASE. 6 ACCORDINGLY WE UPHOLD THE ORDER OF THE ID. CIT(A) D ELETING THE PENALTY. 5.4 IN VIEW OF THE FACTS OF THE CASE, SUBMISSIONS M ADE BY THE APPELLANT AND JUDICIAL PRONOUNCEMENT OF THE HON'BLE ITAT CHANDIGARH ON THI S ISSUE DISCUSSED ABOVE, IT IS HELD THAT THE APPELLANT HAS SPECIFIED AND SUBSTANTI ATED THE MANNER OF EARNING THE INCOME WITH REGARD TO FOLLOWING INCOME DISCLOSED:- (0 CAPITAL INTRODUCED IN FIRMS -RS. 4,77,500/ -. (IF) DOCUMENTS PAGE54-59 OFANNEXURE A-10 OF DE LTA 1 AMOUNTING RS. 60,000/- (III) DOCUMENTS ANNEXURE A-8 OF DELTA 3 AMOUNTI NG RS. 38,50,OOO/- HOWEVER WITH REGARD TO DISCLOSURE ON ACCOUNT OF CAS H FOUND FROM RESIDENTIAL PREMISES OF THE ASSESSEE GROUP AMOUNTING RS. 11,00, 000/-, IT IS HELD THAT MANNER OF EARNING THIS INCOME-HAS NOT BEEN SPECIFIED AND SUBS TANTIATED BECAUSE:- (I) CASH OF RS. 11 LAKH SURRENDERED BY THE APPELLAN T WAS PART OF RS. 44 LAKH CASH SURRENDERED BY THE ASSESSEE GROUP VIDE LETTER DATED 22.07.2008 AND IT WAS IN THE SURRENDER LETTER ITSELF STATED AS UNEXPLAINED CASH FOUND IN RESIDENTIAL PREMISES DURING SEARCH OPERATI ONS. IT HAS BEEN HELD BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KIM PHARMA (P) LTD VS CIT (P&H) [2013) 258 CTR 458 THAT WHERE AMOUNT SURRENDERED DURING SURVEY WAS NOT REFLECTED IN BOOKS OF ACCOUNT S AND NO SOURCE FROM WHERE IT WAS DERIVED WAS DECLARED BY THE ASSESSEE, IT WAS AS SESSABLE AS DEEMED INCOME OF ASSESSEE U/S 69A AND NOT BUSINESS INCOME. IN VIEW OF THE ABOVE REFERRED JUDGEMENT, CASH FOUND IS HELD AS UNEXPLAINED AS NO FROM WHICH IT IS DERIVED. THUS, WITH REGARD TO T HE SAME, IT IS HELD THAT THE APPELLANT HAS NOT SPECIFIED AND SUBSTANTIATED T HE MANNER OF EARNING INCOME DURING THE COURSE OF SEARCH AND HENCE PENALT Y U/S 271AAA OF THE ACT IS LEVIABLE ON THIS AMOUNT. IN VIEW OF THE ABOVE DISCUSSION, PENALTY U/S 271AAA AMOUNTING RS. 1,10,000/-RELATED TO SURRENDER RELATED TO CASH AMOU NTING RS. 11,00,000/- IS CONFIRMED AND THE APPELLANT GETS RELIEF ON THE BALA NCE AMOUNT, 6. AS A RESULT, APPEAL OF THE APPELLANT IS P ARTLY ALLOWED. 6. AGGRIEVED BY THE SAME, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US, RAISING THE FOLLOWING GROUNDS: 1 THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEA LS)-3, GURGAON HAS ERRED IN UPHOLDING PENALTY AMOUNTING TO RS.1,10,000/- RELATING TO SURRENDER OF CASH OF RS. 11 LACS FOUND DURING THE COURSE OF SEARCH FROM THE RESIDENTI AL PREMISES OF THE ASSESSEE GROUP. 2. THAT THE WORTHY CIT (A)-3, HAS ERRED IN HOLDING TH AT WITH REGARD TO CASH FOUND DURING SEARCH, THE APPELLANT HA S NOT SPECIFIED AND SUBSTANTIATED THE MANNER OF EARNING TH E INCOME DURING THE COURSE OF SEARCH AND HENCE PENALTY U/S 2 71 AAA OF THE ACT IS LEVIABLE ON THIS AMOUNT. 7 3. THAT THE WORTHY CIT (A) WHILE CONFIRMING THE PENAL TY U/S 271AAAWITHREGARD TO CASH FOUND DURING THE SEARCH, H AS ERRED IN ASSESSING THE INCOME OF ASSESSEE AS DEEMED INCOM E U/S 69A AND NOT BUSINESS INCOME BY FOLLOWING THE JUDGME NT OF JURISDICTIONAL HIGH COURT IN THE CASE OF M/S KIM PH ARMA (P) LTD. VS CIT (P&H) (2013) 258 CTR 458. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DIS POSED OFF. 7. DURING THE COURSE OF HEARING BEFORE US, THE LD. COUNSEL FOR ASSESSEE STATED THAT THE CIT(A) HAD UPHELD THE LEVY OF PENALTY ON CASH FOR THE REASON THAT THE SAME WAS AS SESSABLE AS DEEMED INCOME U/S 69A OF THE ACT AND NOT BUSINES S INCOME AS PER THE DECISION OF THE HON'BLE JURISDICT IONAL HIGH COURT IN THE CASE OF KIM PHARMA PVT. LTD.(SUPRA). T HE LD. COUNSEL FOR ASSESSEE STATED THAT THIS FINDING OF TH E LD.CIT(A) WAS CONTRARY TO THE FACTS OF THE CASE SINCE THE SUR RENDER MADE ON ACCOUNT OF CASH HAD NOT BEEN ASSESSED AS DE EMED INCOME U/S 69A OF THE ACT BUT HAD BEEN ACCEPTED ALO NGWITH THE OTHER INCOME SURRENDERED BY THE ASSESSEE,PENALT Y ON WHICH HAD BEEN DELETED BY THE CIT(A). 8. THE LD. DR FAIRLY CONCEDED TO THIS FACT, BUT AT THE SAME TIME RELIED ON THE FINDINGS OF THE CIT(A) THAT THE ASSESSEE HAD NOT BEEN ABLE TO SPECIFY AND SUBSTANTI ATE THE MANNER OF EARNING THE CASH SURRENDERED AND THEREFOR E PENALTY U/S 271AAA HAD BEEN RIGHTLY UPHELD BY THE C IT(A). 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND HAV E ALSO GONE THROUGH THE ORDER OF THE CIT(A).UNDISPUTEDLY T HE ENTIRE SURRENDER MADE BY THE ASSESSEE ON ACCOUNT OF CAPIT AL INTRODUCED IN FIRMS,DOCUMENTS FOUND AND CASH , AMOU NTING IN ALL TO RS.54,87,500/- WAS ACCEPTED AND ASSESSED TO TAX BY 8 THE REVENUE. ALL TAXES THEREON HAD BEEN PAID.ADMIT TEDLY ,NO PORTION OF THE SURRENDER HAD BEEN ASSESSED SEPARATE LY UNDER ANY OTHER HEAD. THEREFORE THE DECISION OF THE ITAT IN THE CASE OF SANJEEV GOYAL (SUPRA) APPLIED TO THE ENTIRE SURRENDER MADE,AND THE CIT(A) ,WE HOLD HAD WRONGLY SEGRAGATED THE SURRENDER MADE ON ACCOUNT OF CASH BY STATING THAT T HE SAME WAS ASSESSABLE U/S 69A OF THE ACT,WHEN THE FACT WAS THAT IT HAD NOT BEEN SO ASSESSED.IN FACT ON GOING THROUGH T HE ORDER OF THE ITAT IN THE CASE OF SANJEEV GOYAL (SUPRA) WE FIND THAT IT HAS BEEN HELD IN THE SAID CASE THAT THE DISCLOSU RE OF INCOME U/S 132(4) DURING SEARCH HAVING BEEN MADE AN D THE ASSESSEE HAVING SURRENDERED THE SAME AND INCLUDED T HE SAME IN THE RETURNS FILED WHICH HAVE BEEN ACCEPTED BY THE REVENUE,NO PENALTY U/S 271AAA IS LEVIABLE FOR NOT S PECIFYING THE MANNER OF EARNING THE INCOME SURRENDERED.ALL TH E AFORESAID CONDITIONS ADMITTEDLY STOOD FULFILLED IN THE CASE OF SURRENDER MADE ON ACCOUNT OF DOCUMENTS FOUND AND CA PITAL INTRODUCED IN THE FIRM ,AS PER THE CIT(A). THE CASH WAS ALSO PART OF THE SAME SURRENDER AND NO DISTINCTION HAS B EEN BROUGHT OUT OF THE SAME WITH THE REST OF THE SURREN DER MADE.WE THEREFORE HOLD THAT THERE WAS NO BASIS FOR UPHOLDING THE LEVY OF PENALTY ON THE CASH SURRENDER ED AND THE SAME IS THEREFORE DIRECTED TO BE DELETED. THE APPEAL FILED BY THE ASSESSEE IS, THEREFORE, ALLOWED. ITA NO.1557/CHD/2017: 10. IN THE IMPUGNED CASE , IT WAS COMMON GROUND THA T THE FACTS WERE IDENTICAL, WITH THE PENALTY HAVING BEEN LEVIED U/S 9 271AAA OF THE ACT, ON SURRENDER MADE OF IDENTICAL AMOUNT OF RS.54,87,500/- ON IDENTICAL COUNTS OF CASH RS.1 1 LACS,ANNEXURE A 10 OF DELTA 1 RS.60,000/-,ANNEXUR E A-8 OF DELTA 3 RS.38,50,000/- & CAPITAL INTRODUCED IN FI RM RS.4,77,500/-, OUT OF WHICH THE CIT(A) UPHELD PENA LTY LEVIED, ON THE CASH SURRENDERED OF RS.11 LACS, FOR THE IDENTICAL REASON THAT THE SAME WAS NOT ASSESSABLE A S BUSINESS INCOME BUT AS DEEMED INCOME OF THE ASSESSE E AS PER THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KIM PHARMA PVT. LTD. (SUPRA).IT WAS P OINTED OUT BY THE LD. COUNSEL FOR ASSESSEE WAS THAT THE IMPUGN ED SURRENDER OF CASH HAD BEEN ACCEPTED AND ASSESSED ALONGWITH THE TOTAL SURRENDER MADE AND HAD NOT BEE N ASSESSED AS DEEMED INCOME. IN VIEW OF THE SAME, SINCE THE THE FACTS ARE IDEN TICAL TO THAT IN ITA NO.1556/CHD/2017,OUR DECISION RENDERED THEREIN WILL APPLY SQUARELY TO THE PRESENT CASE ALSO FOLLOW ING WHICH WE DELETE THE PENALTY UPHELD ON THE CASH SURRENDERE D. THE APPEAL OF THE ASSESSEE IS ALLOWED. 11. IN EFFECT, BOTH THE APPEALS OF THE ASSESSEES AR E ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ' #! $ % (SANJAY GARG ) (ANNAPURNA GUPTA) / JUDICIAL MEMBER &' / ACCOUNTANT MEMBER )' /DATED: 15 TH OCTOBER, 2018 * ! * 10 &) *+,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. - $ / CIT 4. - $ ( )/ THE CIT(A) 5. +./ 0 , #0 , 123/4 / DR, ITAT, CHANDIGARH 6. /35' / GUARD FILE &) $ / BY ORDER, 6 ! / ASSISTANT REGISTRAR