The ACIT, Central Circle-3, Surat V. M/s. Krish Corporation, Surat

ITA 1810/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2004 (ITAT-SURAT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-03-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 13-06-2014
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NO.1810/AHD/2014/SRT / ASSESSMENT YEAR: 2011-12 ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, SURAT. VS. M/S. KRISH CORPORATION, C-1175 TO 1191, RADHA KRISHNA TEXTILE MARKET, RING ROAD, SURAT 395 003. [PAN: AAHFK 9281C] ( ' / APPELLANT) ( #$' /RESPONDENT) . / ITA NO.1811/AHD/2014/SRT / ASSESSMENT YEAR: 2011-12 ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, SURAT. VS. SHRI VINOD J. PATEL, C-1175 TO 1191, RADHA KRISHNA TEXTILE MARKET, RING ROAD, SURAT 395 003. [PAN: ABCPP 1420E] ( ' / APPELLANT) ( #$' /RESPONDENT) . / ITA NO.1815/AHD/2014/SRT / ASSESSMENT YEAR: 2011-12 ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, SURAT. VS. M/S. PATDI COMMERCIAL & INVESTMENT LTD., C-1175 TO 1191, RADHA KRISHNA TEXTILE MARKET, RING ROAD, SURAT 395 003. [PAN: AAACP 3024A] ( ' / APPELLANT) ( #$' /RESPONDENT) 2 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION / ASSESSEE BY : SHRI SAPNESH SHETH, C.A /REVENUE BY : SMT. O.P. SINGH, SR. D.R /DATE OF HEARING : 23-08-2018 / DATE OF PRONOUNCEMENT : 10-10-2018 / ORDER PER C.M.GARG, JUDICIAL MEMBER: THIS IS A SET OF THREE APPEALS FILED BY THE REVENU E AGAINST THE COMMON ORDER OF COMMISSIONER OF INCOME TAX (APPEALS )-II, AHMEDABAD (CIT(A) FOR SHORT) DATED 22.03.2014 FOR THE ASSES SMENT YEAR (A.Y) 2011- 12. 2. BOTH THE PARTIES HAVE AGREED TO THE FACT THAT TH E FACTS AND CIRCUMSTANCES OF ALL THREE APPEALS ARE QUITE SIMILA R AND IDENTICAL AND FOR THE SAKE OF CONVENIENCE AND BREVITY, WE ARE TAKING UP ITA NO.1810/AHD/2014/ SRT FOR AY 2011-12 AS LEAD CASE, WHEREIN GROUNDS OF REVENUE READ AS FOLLOWS: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS. 2,00,00,000/- IMPOSED U/S. 271AAA OF THE ACT, 1961, IGNORING THE FACT THAT THE ASSESSEE HAS NOT S ATISFIED THE CONDITIONS LAID DOWN IN SECTION 271AAA(2)(II) O F THE ACT. 2. THE LD. CIT(A) HAS NOT APPRECIATED THAT THE SECT ION 271AAA(2) CASTS THE ONUS ON THE ASSESSEE TO ADMIT, SPECIFY AND SUBSTANTIATE THE UNDISCLOSED INCOME AND PAY TAX AND INTEREST THEREON. THE INCOME TAX ACT DOES NOT CAST THE ONUS ON THE ASSESSING OFFICER TO ESTABLISH THE SOUR CE OF UNACCOUNTED INCOME. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE T RIBUNAL. THE LD. CIT-DR 3 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION SUBMITTED THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS. 2,00,00,000/- IMPOSED U/S. 271AAA OF THE ACT, 1961, IGNORING THE FACT THAT THE ASSESSEE HAS NOT SATISFI ED THE CONDITIONS LAID DOWN IN SECTION 271AAA(2)(II) OF THE ACT. HE FURTHE R CONTENDED THAT THE LD. CIT(A) HAS NOT APPRECIATED THAT THE SECTION 271AAA( 2) CASTS THE ONUS ON THE ASSESSEE TO ADMIT, SPECIFY AND SUBSTANTIATE THE UNDISCLOSED INCOME AND PAY TAX AND INTEREST THEREON. THE INCOME TAX A CT DOES NOT CAST THE ONUS ON THE ASSESSING OFFICER TO ESTABLISH THE SOUR CE OF UNACCOUNTED INCOME. SUPPORTING THE PENALTY ORDER, THE LD. CIT-D R SUBMITTED THAT THE ASSESSEE DISCLOSED RS. 20 CRORES DURING THE COURSE OF SEARCH FOR WHICH THE ASSESSEE FAILED TO SPECIFY THE MANNER IN WHICH INCOME HAS BEEN DERIVED. THEREFORE, S. 271AAA(1) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') IS CLEARLY APPLICABLE IN ASSESSEES CASE . HE FURTHER SUBMITTED THAT THE LD. CIT(A) HAS GRANTED RELIEF TO THE ASSE SSEE WITHOUT ANY BASIS AND JUSTIFIED REASON THEREFORE, IMPUGNED ORDER MAY KINDLY BE SET ASIDE BY RESTORING THAT OF THE ASSESSING OFFICER (AO). 4. REPLYING TO THE ABOVE, THE LD. AR SUBMITTED THAT THE AO IMPOSED PENALTY AGAINST THE MANDATE AND PROVISION OF S. 271 AAA OF THE ACT AND BY IGNORING VARIOUS DECISIONS OF HON'BLE SUPREME COURT AND HON'BLE HIGH COURT INCLUDING DECISION OF HON'BLE JURISDICTIONAL HIGH COURT OF GUJARAT IN THE CASE OF CIT VS. MAHENDRA C SHAH REPORTED IN 299 ITR 305 (GU J.) AND RECENT DECISION IN THE CASE OF PR. CIT V. MUKESHBHAI RAMANLAL PRAJAPATI 4 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION REPORTED IN 398 ITR 170 (GUJ.). THE LD. AR VEHEMENTLY SUBMITTED THAT FROM THE ANOTHER RECENT DECISION OF HONBLE JURISDI CTIONAL HIGH COURT OF GUJARAT IN THE CASE OF PCIT VS. SWAPNA ENTERPRISE REPORTED IN 401 ITR 488 (GUJ.), WHEREIN IT WAS HELD THAT WHERE U/S. 132 STATEMENT OF ONE, PARTNER OF ASSESSEE FIRM IS RECORDED U/S. 132(4), W HEREIN HE ADMITTED THAT PAGES OF DIARY BS-1 FOUND AND SEIZED, CONTAINED ENT RIES OF TAXABLE INCOME RELATING TO VARIOUS FIRMS WHICH ARE NOT RECO RDED IN BOOKS OF ACCOUNTS THEN, CIT WAS RIGHT IN DELETING PENALTY IM POSED BY AO ON ASSESSEE. 5. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, WE ARE OF THE VIEW THAT AS PER PROVISION OF S. 271AAA OF THE ACT, THE AO MAY DIRECT THE ASSESSEE TO PAY 10% UNDISCLOSED INCOME OF THE SPECI FIED PREVIOUS YEAR, IN ADDITION TO THE TAX PAYABLE BY HIM. HOWEVER, THE LEGISLATION HAS GRANTED IMMUNITY FROM THE SAID PENALTY SUBJECT TO CUMULATIV ELY FULFILLING THREE CONDITIONS AS SPECIFIED IN SUB SECTION (2) OF S. 27 1AAA OF THE ACT. 6. FURTHER, LET US EXAMINE THE PRESENT CASE AS TO W HETHER THE ASSESSEE IS ENTITLED TO IMMUNITY FROM IMPOSING OF P ENALTY U/S. 271AAA OF THE ACT. FROM PARA 3 AT PAGE 2 OF THE PENALTY ORDE R, IT IS CLEAR THAT THE AO HIMSELF NOTED THAT THE ASSESSEE HAS PAID TAX TOGETH ER WITH INTEREST IN RESPECT OF UNDISCLOSED INCOME. THEREFORE, UNDISPUTE DLY CONDITION OF CLAUSE (III) OF SUB SECTION (2) OF S. 271AAA OF THE ACT HAS BEEN COMPLIED 5 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION WITH BY THE ASSESSEE. IN THIS SITUATION, WE HOLD TH AT BENEFIT OF THE RATIO OF THE ORDER OF ITAT, PUNE IN THE CASE OF SHAILESH GOPAL MHASKE 167 ITD 344 (PUNE-TRIB.) AS RELIED BY THE LD. CIT-DR, IS NO T AVAILABLE FOR THE REVENUE AS IN THAT CASE ASSESSEE HAS NOT PAID TAX O N THE UNDISCLOSED INCOME. THEREFORE, IN THAT CASE THE TRIBUNAL DECLI NED TO GRANT IMMUNITY FROM THE PENALTY U/S. 271AAA OF THE ACT AS IN THE P RESENT CASE THE ASSESSEE HAS PAID DUE TAXES ETC. ON THE UNDISCLOSED INCOME SURRENDERED DURING THE STATEMENT U/S. 132(4) OF THE ACT THUS, A SSESSEE IS ENTITLED TO GET IMMUNITY FROM PENALTY ON COMPLYING WITH THE CON DITION AND REQUIREMENT OF CLAUSE (III) OF SUB SECTION (2) OF S . 271AAA OF THE ACT. 7. FURTHERMORE, WE PROCEED TO ADJUDICATE AS TO WHET HER THE ASSESSEE HAS COMPLIED WITH THE CONDITIONS AS PROVIDED IN CLA USES (I) & (II) OF SUB SECTION (2) OF S. 271AAA OF THE ACT, AND IT IS ENTI TLED FOR IMMUNITY FROM IMPOSING OF PENALTY U/S. 271AAA OF THE ACT. FIRST O F ALL, WE FIND IT APPROPRIATE TO REPRODUCE THE RELEVANT PART OF FIRST APPELLATE ORDER, WHEREIN THE LD. CIT(A) GRANTED RELIEF TO THE ASSESSEE AND D IRECTED THE AO TO DELETE THE PENALTY, WHICH READS AS FOLLOWS: 5. THE FACTS OF THE CASE AND SUBMISSIONS HAVE BEEN CAREFULLY PERUSED. THE GROUND THAT THOUGH THERE WAS A DISCLOS URE OF UNDISCLOSED INCOME OF RS. 41.00 CRORES IN THE NAME OF ENTIRE APPELLANT GROUP OF ASSESSEES VIZ. M/S KRISH CORPORA TION, SHRI VINODBHAI J PATE! AND M/S PATDI COMMERCIAL & INVEST MENTS LTD. [PCIL] BY SHRI JERAMBHAI PATEL, DIRECTOR OF PATDI C OMMERCIAL & INVESTMENTS LTD. AND THE SHARE OF THE APPELLANT WAS RS. 20.00 CRORES. THE A.O. WAS OF THE VIEW THAT THE MANNER IN WHICH THIS UNDISCLOSED INCOME WAS DERIVED WAS NOT CLEARLY STAT ED BY SHRI PATEL. 6 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION ACCORDING TO THE A.O., THE ASSESSEE STATED ONLY THA T THE INCOME DECLARED U/S. 132[4] OF THE I. T. ACT WAS IN FORM O F UNACCOUNTED ON MONEY OR UNACCOUNTED CASH RECEIVED/RECEIVABLE FROM CONSTRUCTION WORK UNDERTAKEN BY M/S KRISH CORPORATION. ACCORDING TO THE A.Q., THE ASSESSEE DID NOT GIVE SPECIFIC DETAILS OF AMOUNTS R ECEIVED OR DETAILS OF UNACCOUNTED EXPENDITURE. THUS, ACCORDING TO HIM, THE EXEMPTION CLAUSES OF SECTION 271AAAF2] WERE NOT FULFILLED IN THIS CASE. HENCE, THE PENALTY. ON THE OTHER HAND, THE AR HAS SUBMITTED THAT AN AMO UNT OF RS. 20.00 CRORES WAS DECLARED IN THE NAME OF THE AP PELLANT AS UNACCOUNTED INCOME EARNED OUTSIDE THE BOOKS OF ACCO UNT FOR THE YEAR F.Y. 2010-11 I.E. A.Y. 2011- 12. THE LD. AR HA S SUBMITTED THAT THE APPELLANT GROUP HAS BEEN ENGAGED IN CONSTRUCTIN G RADHA KRISHNA TEXTILE MARKET [RKT] AND FROM PROPOSED PURCHASERS, ON MONEY WAS ALSO RECEIVED. THE AR ALSO STATED THAT UNACCOUNTED ON MONEY IN RESPECT OF RT&U DIVISION OF THE SAID PROJECT WAS TA KEN IN THE NAME OF M/S KRISH CORPORATION, THE DETAILS OF WHICH WERE RE CORDED IN THE DIARY WHICH WAS FOUND AND SEIZED AS PER ANNEXURE B.S.8 WH ICH CONTAINED THE DETAILS OF CASH TRANSACTION TOWARDS BOOKING AND SELLING OF RT&U WINGS OF RKT MARKET. THE SELLING AFTER CONSTRUCTION WORK WAS DONE BY M/S KRISH CORPORATION AND THEREFORE, THE DECLARA TION OF ON MONEY WAS ALSO DONE IN THE NAME OF THIS CONCERN ALSO. AS REGARDS FULFILLMENT OF THE CONDITIONS OF SECTION 271AAA(2) ARE CONCERNED, IT IS RELEVANT TO REPRODUCE THE SAID SECTION HEREUNDER:- 271 AAA. [1] THE A. O. MAY, NOTWITHSTANDING ANYTHIN G CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER TH E I S ' DAY OF JUNE, 2007 [BUT BEFORE THE 1 ST DAY OF JULY 2012] THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM COMPUTED AT THE RATE OFTEN PER CENT OF THE UNDISCLO SED INCOME OF THE SPECIFIED PREVIOUS YEAR. [2] NOTHING CONTAINED IN S UB SECTION [1] SHALL APPLY IF THE ASSESSEE I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UNDE R SUB SECTION [4] OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS B EEN DERIVED; II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOS ED INCOME WAS DERIVED; AND III) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. PERUSAL OF SECTION SHOWS THAT TO AVAIL EXEMPTION FR OM PENALTY U/S. 271 AAA, THE ASSESSEE HAS TO FULFILL THREE PRE-REQU ISITES AS MENTIONED IN SUB SECTION [2]. IN THE CASE OF APPELL ANT, ADDITIONAL INCOME IS STATED TO HAVE BEEN EARNED BY THE APPELLA NT AS ON MONEY RECEIVED FROM ITS PROJECT I.E. RT&U WING OF RKT MAR KET. IT WAS STATED 7 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION THAT THE APPELLANT GROUP HAS CONSTRUCTED RADHA KISH AN TEXTILE MARKET AS WELL AS PROJECT KRISH ENCLAVE IN SURAT WH ICH IS A RESIDENTIAL COMPLEX. UNACCOUNTED INCOME BY WAY OF ON MONEY WAS RECEIVED IN SUCH VENTURES AND THE DETAILS WERE FOUND MENTIONED IN THE DIARIES SEIZED B.S.7, B.S.8 AND B.S.9 OF THE PANCHNAMA. THE SEIZED DIARY MARKED AS B.S.8 OF THE PANCHNAMA PERTAINS TO KRISH CORPORATION THE APPELLANT FIRM. IT WAS CLEARLY MENTIONED BY SHRI PA TEL IN THE STATEMENT U/S. 132[4] THAT SEIZED DIARY BS.8 CONTAINED THE DE TAILS ON MONEY RECEIVED/RECEIVABLES IN CASH IN RESPECT OF SHOPS/OF FICE PREMISES BOOKED BY INTERESTED PERSONS/CONCERNS. OUT OF TOTAL DISCLOSURE OF RS. 41.00 CRORES MADE ON BEHALF OF THE ENTIRE GROUP, RS . 20.00 CRORES HAS BEEN ADMITTED IN THE NAME OF THE APPELLANT FIRM . THUS IT IS SEEN FROM THE STATEMENT OF SHRI PATEL, W HEREIN UNDISCLOSED INCOME WAS DECLARED U/S. 132[4], THE MA NNER OF EARNING THE SAID INCOME WAS ALSO CLEARLY STATED AND THE SAM E WAS SUBSTANTIATED BY SEIZED DOCUMENTS [IN THE CASE OF A PPELLANT FIRM, IT IS SEIZED DIARY MARKED B.S.8]. IT IS ALSO SEEN THAT TH E AUTHORIZED OFFICER DURING THE SEARCH DID NOT PUT SPECIFIC QUESTION OR MADE QUERY REGARDING THE MANNER OF EARNING OF UNDISCLOSED INCO ME BEING DECLARED. THUS, IN MY VIEW, THE EXEMPTION CLAUSES ( I) AND (II) OF SECTION 271AAA[2] ARE FULFILLED IN THIS CASE BECAUS E THE APPELLANT HAS CLEARLY STATED THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED AND THE SAME WAS SUBSTANTIATED ALSO IN FORM OF SEIZED MATERIAL AND CASH RECEIVED/ RECEIVABLE. IT HAS BEEN HELD BY VARIOUS COURTS THAT UNLESS THE AUTHORIZED OFFICER PUTS SPEC IFIC QUESTIONS TO THE PERSON GIVING DECLARATION U/S. 132[4] ABOUT THE MAN NER OF EARNING THE SAID UNDISCLOSED INCOME, IT WILL BE PRESUMED THAT T HE CONDITIONS OF SECTION 271AAA[2] ARE FULFILLED IF THE ASSESSEE DEC LARES UNACCOUNTED INCOME AND TELLS THE SOURCES THEREOF. RELIANCE IS P LACED ON FOLLOWING COURT DECISIONS WHERE THE HON'BLE COURTS HAVE HELD THAT:- I) IF NO SPECIFIC QUESTION IS POSED BY THE AUTHORIZ ED OFFICER DURING THE SEARCH ABOUT THE MANNER OF EARNI NG OF DECLARED INCOME, THERE WOULD BE SUBSTANTIAL COMPLIA NCE IF THE INCOME IS DECLARED AND TAXES THEREON PAID. [MAHENDRA C SHAH [2008] 299 ITR 305 GUJ] II) IT IS NOT EXPECTED FROM A PERSON TO MAKE STATEMENT SUO-MOTO ABOUT THE MANNER OF EARNING THE INCOME UNLESS HE IS SPECIFICALLY ASKED BY THE AUTHORIZED OFFICER BUT EV EN IF IT IS STATED SUBSEQUENTLY, THAT WILL AMOUNT TO THE COMPLI ANCE OF EXPLANATION 5[2] OF SECTION 271(1)(C). IN ABSENCE O F ANY SPECIFIC STATEMENT ABOUT MANNER OF EARNING INCOME, IT CAN BE INFERRED THAT UNDISCLOSED INCOME WAS DERIVED FROM B USINESS WHICH HE WAS CARRYING ON OR FROM OTHER SOURCES. THE OBJECTION OF PROVISION IS ACHIEVED BY MAKING STATEM ENT ADMITTING NON DISCLOSURE OF MONEY, BULLION, JEWELRY , ETC. [RADHAKISHAN GOYA! 278 ITR 454 - ALLD .H.C.] 8 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION IT IS SEEN THAT THE JUDGEMENTS OF MAHENDRA C SHAH A ND RADHAKISHAN GOYAL BOTH WERE DELIVERED IN THE CONTEX T OF SECTION 271(1)(C) EXPLANATION 5[2] BUT THE PROVISIONS ARE A KIN TO SECTION 271AAA[2], THERE ARE VARIOUS OTHER COURT DECISIONS ALSO WH ICH SUPPORT THIS VIEW THAT-IF ASSESSEE DECLARES VOLUNTARILY, ADDITIO NAL INCOME DURING THE STATEMENT U/S. 132[4J AND STATES THE MANNER OF EARNING SAID INCOME SUPPORTED BY IDENTIFIED ASSETS AND TAXES ALO NG WITH INTEREST PAID THEREON, THE CONDITIONS OF SECTION 271AAA[2] W ILL BE TREATED AS FULFILLED AND PENALTY U/S. 271AAA SHALL NOT BE LEVI ABLE FOR E.G. I) SULOCHANADEVI A AGARWAI !TA NO. 1052/AHD/2012. II) ITO V. SHILPABEN N GUPTA - 1784/AHD/2012 III) PROMODKUMAR JAIN V. DCIT- 131 TO 133/CTK/2012 IV) DCIT V. PIONEER MARBLES AND INTERIORS P. LTD. 1 326/KOL/2011 III) IF NO SPECIFIC QUESTION IS POSED BY THE AUTHOR IZED OFFICER DURING THE SEARCH ABOUT THE MANNER OF EARNI NG OF DECLARED INCOME, THERE WOULD BE SUBSTANTIAL COMPLIA NCE IF THE INCOME IS DECLARED AND TAXES THEREON PAID. [MAHENDRA C SHAH [2008] 299 ITR 305 GUJ] IV) IT IS NOT EXPECTED FROM A PERSON TO MAKE STATEMENT SUO-MOTO ABOUT THE MANNER OF EARNING THE INCOME UNLESS HE IS SPECIFICALLY ASKED BY THE AUTHORIZED OFFICER BUT EV EN IF IT IS STATED SUBSEQUENTLY, THAT WILL AMOUNT TO THE COMPLI ANCE OF EXPLANATION 5[2] OF SECTION 271(1)(C). IN ABSENCE O F ANY SPECIFIC STATEMENT ABOUT MANNER OF EARNING INCOME, IT CAN BE INFERRED THAT UNDISCLOSED INCOME WAS DERIVED FRO M BUSINESS WHICH HE WAS CARRYING ON OR FROM OTHER SOU RCES. THE OBJECTION OF PROVISION IS ACHIEVED BY MAKING ST ATEMENT ADMITTING NON DISCLOSURE OF MONEY, BULLION, JEWELRY , ETC. [RADHAKISHAN GOYAL 278 ITR 454 - ALLD .H.C.] IT IS SEEN THAT THE JUDGEMENTS OF MAHENDRA G SHAH A ND RADHAKISHAN GOYA! BOTH WERE DELIVERED IN THE CONTEX T OF SECTION 271(1)(C) EXPLANATION 5[2] BUT THE PROVISIONS ARE A KIN TO SECTION 271AAA[2]. THERE ARE VARIOUS OTHER COURT DECISIONS ALSO WHICH SUPPORT THIS VIEW THAT IF ASSESSEE DECLARES VOLUNTARILY, ADDITIO NAL INCOME DURING THE STATEMENT U/S. 132[4] AND STATES THE MANNER OF EARNING SAID INCOME SUPPORTED BY IDENTIFIED ASSETS AND TAXES ALO NG WITH INTEREST PAID THEREON, THE CONDITIONS OF SECTION 271AAA[2] W ILL BE TREATED AS FULFILLED AND PENALTY U/S. 271AAA SHALL NOT BE LEVI ABLE FOR E.G. I. SULOCHANADEVI A AGARWAL ITA NO. 1052/AHD/2012. II. ITO V. SHILPABEN N GUPTA - 1784/AHD/2012 III. PROMODKUMAR JAIN V. DCIT - 131 TO 133/CTK/2012 IV. DCIT V. PIONEER MARBLES AND INTERIORS P. LTD. 1 326/KOL/2011 9 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION SIMILAR VERDICT HAS BEEN GIVEN IN FOLLOWING RECENT COURT DECISIONS:- A) NEERAT SINGHAI V. ACIT, C.C.13, NEW DELHI [2013] 37 TAXMAN.COM 189 DEL. TRI. B) CONCRETE DEVELOPERS V. ACIT, C.C. 2[2], [2013] 3 4 TAXMAN.COM 62 NAGPUR AS REGARDS THIRD LIMB OF SECTION 271AAA[2] I.E. TAX ES ON ADDITIONAL INCOME SHOULD HAVE BEEN PAID ALONG WITH INTEREST, IT IS OBSERVED THAT IT IS NOT IN DISPUTE AS THE A.O. HIMS ELF HAS ADMITTED IN THE PENALTY ORDER THAT THE TAXES ALONG WITH THE INT EREST HAVE BEEN PAID BY THE APPELLANT PROPERLY. THUS, TAKING INTO ACCOUNT, THE ENTIRE FACTS AND CIR CUMSTANCES OF THE CASE AS WELL AS THE LEGAL POSITION, I AM OF THE VIEW THAT THE A.O. WAS NOT JUSTIFIED IN LEVYING THE PENALTY U/S. 271AAA. THE SAME IS DIRECTED TO BE DELETED. THE APPELLANT GETS RELIE F. 8. IN VIEW OF ABOVE CONCLUSION DRAWN BY THE LD. FIRST APPELLATE AUTHORITY, WE OBSERVE THAT THE LD. CIT(A) HAS FOLLOWED RATIO O F THE DECISION OF THE DECISION HONBLE JURISDICTIONAL HIGH COURT IN THE C ASE OF MAHENDRA C. SHAH (SUPRA), WHEREIN FOLLOWING THE RATIO OF THE DECISI ON OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT V. RADHAKISHAN GOEL 278 ITR 454 (ALL), IT WAS HELD THAT THE STATEMENT IS BEING RECORDED I N THE QUESTION AND ANSWER FORM AND THERE WOULD BE NO OCCASION FOR AN ASSESSEE TO STATE AND MAKE AVERMENTS IN THE EXACT FORMAT STIPULATED B Y THE PROVISION OF SUB SECTION (2) OF S. 271AAA OF THE ACT. 9. IN THE PRESENT CASE, THE DISCLOSURE WAS MADE IN THE STATEMENT OF SHRI JERAMBHAI PATEL, A PROMINENT PERSON IN THE SAN GANI GROUP OF BUILDER AND DEVELOPER, INCLUDING PRESENT ASSESSEE FIRM, U/S . 132(4) OF THE ACT RECORDED ON 09.06.2010, WHICH WAS BASED ON THE DOCU MENTS SEIZED DURING THE COURSE OF SEARCH OPERATION. COPY OF THE SAID STATEMENT AND ITS 10 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION ENGLISH TRANSLATION HAS BEEN PLACED AT PGS. 13-24 O F THE ASSESSEE PAPER BOOK, WHEREIN REPLY TO Q. NO.8 SHRI JERAMBHAI PATEL STATED THAT CONSIDERING VARIOUS DOCUMENTS THAT ARE KEPT & FOUN D DURING THE SEARCH AT OUR VARIOUS PREMISES AND ALSO CONSIDERING VARIOUS D OCUMENT AT OUR OFFICE PREMISES AT C-1175, RADHA KRISHAN TEXTILE MARKET, I WOULD LIKE TO INFORM YOU THAT FROM THE SHOPS OF RADHA KRISHNA TEXTILE MA RKET AND SHOPS OF RTU WINGS OF RADHA KRISHANA TEXTILE MARKET AND TOWA RDS KRISH ENCLAVE FLATS SALES, WE HAVE EARNED IN THE FORM OF UNACCOU NTED INCOME ON MONEY WHICH IS OUR UNACCOUNTABLE EACH RECEIVABLES AND ITS ACCOUNT ARE IN DIARIES OF BS-7, BS-8 & BS-9 AS ABOVE. IN WHICH RKT MARKETS ACCOUNT UP TO 31.03.2011 AND ACCOUNT OF BOOKING UP TO J WIN GS AND ALSO ACCOUNT OF R.T.U DIVISION OF KRISH CORPORATION AND ALSO BOO KINGS ACCOUNT OF KRISH ENCLAVE WHICH IS UNACCOUNTED. AFTER NARRATING THESE FACTS SHRI JERAMBHAI PATEL IN THE LAST PART OF THIS ANSWER TO Q. NO.8 SU RRENDERED RS. 41 CRORES INCLUDING RS. 20 CRORES IN THE NAME OF PRESENT ASSE SSEE I.E., KRISH CORPORATION. 10. THEREFORE, ON VIGILANT AND CAREFUL READING AND ANALYSIS OF THE QUESTIONS POSED TO SHRI JERAMBHAI PATEL BY THE STAT EMENT RECORDING AUTHORITY, IT IS CLEAR THAT THERE WAS NO OCCASION FOR SHRI JERAMBHAI PATEL TO STATE AND MAKE AVERMENTS IN THE EXACT FORMAT AS STI PULATED AND REQUIRED UNDER CLAUSES (I) & (II) OF SUB S. (2) OF S. 271AAA OF THE ACT AND IN THIS SCENARIO AND CONSIDERING THE ENVIRONMENT IN WHICH S TATEMENT U/S. 132(4) 11 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION OF THE ACT IS RECORDED IT IS NOT PRACTICALLY POSSIB LE AND CORRECT TO EXPECT FROM THE ASSESSEE, WHETHER EDUCATED OR UNEDUCATED, TO SPECIFY AND TO POINT OUT THE FACTS COMPLYING WITH THE REQUIREMENT OF CONDITIONS STIPULATED IN THE CLAUSES (I) & (II) OF SUB S. (2) OF S. 271AA A OF THE ACT. IN THIS SITUATION, AND ON THE BASIS OF FOREGOING DISCUSSION , WE REACH TO A LOGICAL CONCLUSION THAT THE LD. CIT(A) WAS RIGHT IN GRANTIN G RELIEF TO THE ASSESSEE BY FOLLOWING RATIO OF THE DECISION OF HON'BLE GUJAR AT HIGH COURT IN THE CASE OF MAHENDRA C. SHAH (SUPRA), WHICH HAS BEEN REFERRE D BY HONBLE JURISDICTIONAL HIGH COURT IN ITS SUBSEQUENT JUDGMEN TS IN THE CASES OF PCIT V. EMIRATES TECHNOLOGIES PVT. LTD. (SUPRA) AND PCIT VS. SWAPNA ENTERPRISES (SUPRA). WE ARE UNABLE TO SEE ANY AMBIGUITY PERVE RSITY OR ANY OTHER VALID REASON TO INTERFERE WITH THE SAME. HENCE, WE UPHOLD THE SAME. ACCORDINGLY, GROUNDS OF APPEAL OF REVENUE B EING DEVOID OF MERITS ARE DISMISSED UPHOLDING THE ORDER OF LD. CIT(A). ITA NOS. 1811 & 1815/AHD/2014/SRT OF REVENUE: 11. SINCE, IN THE VERY BEGINNING OF HEARING BOTH THE PARTIES AGREED TO THE FACT THAT THE FACTS AND CIRCUMSTANCES OF ALL TH REE APPEALS ARE QUITE SIMILAR AND IDENTICAL AS DISCLOSURE WAS MADE IN ALL THREE APPEALS BY SHRI JERAMBHAI PATEL IN HIS STATEMENT RECORDED U/S. 132( 4) OF THE ACT ON 09.06.2010 AND THEREFORE, OUR CONCLUSION DRAWN IN T HE EARLIER PART OF THIS ORDER FOR ITA NO.1810 /AHD/2014/SRT WOULD APPLY MUTATIS MUTANDIS TO OTHER TWO APPEALS I.E., IN ITA NOS.1811 & 1815/AHD/ 2014/SRT BOTH FOR 12 ITA NOS.1810, 1811 & 1815/AHD/2014/SRT (A.Y: 2011-1 2) M/S. KRISH CORPORATION AY 2011-12 AND GROUNDS OF APPEAL OF REVENUE IN THE SE APPEALS ARE ALSO STAND DISMISSED. 12. IN THE RESULT, ALL THE THREE APPEALS OF REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 0 TH OCTOBER, 2018. / SURAT ; DATED : 10 TH OCTOBER, 2018 EDN # & / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT ; 3. $ ( ) / THE CONCERNED CIT(A); 4. THE CONCERNED PRL. CIT; 5. , , / DR, ITAT, SURAT; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // * / ASSISTANT REGISTRAR , / ITAT, SURAT SD/- SD/- ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) /JUDICIAL MEMBER