The DCIT, Cent, Circle-1, Surat V. Shri Jaiprkash K.Aswani, Surat

ITA 2090/AHD/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9590 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Unexplained investment; Income from undisclosed sources
• Section: 143(3); 5(2); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL VICE PRESIDENT AND SHRI S.S. GODARA JUDICIAL MEMBER ITA NO.2090 & 2091/AHD/2011 A.Y.2008-09 1. DCIT, CENTRAL CIRCLE-1, SURAT. 2. DCIT, CENTRAL CIRCLE-1, SURAT. VS SHRI JAIPRAKASH K. ASWANI, J-18 BASEMENT, J.J. MARKET, RING ROAD, SURAT. PAN: AASPA 3016C M/S. SURYA PRAKASH ORGANIZERS, 2 ND FLOOR, ASCON CITY, LIGHT ROAD, SURAT. PAN: ABCFS 5993F (APPELLANT) (RESPONDENT) REVENUE BY : SHRI V.K. SINGH, SR.D.R., ASSESSEE(S) BY : SHRI RAJESH SHAH, A.R. / DATE OF HEARING : 23/06/2015 / DATE OF PRONOUNCEMENT : 26/06/2015 / O R D E R PER S.S. GODARA, JUDICIAL MEMBER THESE REVENUES APPEALS FOR A.Y.2008-09, ARISE FROM SEPARATE ORDERS OF THE CIT(A)-II, AHMEDABAD, DATED 13.06.201 1 AND 15.06.2011, PASSED IN CASE NOS.CIT(A)-II/CC.1/73/20 10-11 AND CIT(A)-II/CC.1/76/2010-11, DELETING PENALTIES OF RS .30 LACS AND ITA NO.2090 & 2091/AHD/2011 SHRI JAIPRAKASH K. ASWANI & M/S. SURYA PRAKASH ORGA NIZERS. FOR A.Y. 2008-09 - 2 - RS.70 LACS; RESPECTIVELY, IN PROCEEDINGS UNDER SECT ION 271AAA OF THE INCOME TAX ACT, 1961, IN SHORT THE ACT. 2. BOTH PARTIES INFORM US AT THE OUTSET THAT FACTS INVOLVED IN THE TWO CASES ARE IDENTICAL. WE FIND THAT THESE TWO APP EALS SEEK RESTORATION OF THE IMPUGNED SECTION 271AAA PENALTIE S ARISING FROM THE SAME SEARCH CONDUCTED ON 14.2.2008 AND THE FORM ER ASSESSEES STATEMENT RECORD ON BEHALF OF HIMSELF AS WELL AS AT THE LATTER ASSESSEES BEHEST. THUS, WE TREAT ITA 2090 AS THE LEAD CASE. 3. THE ASSESSEE IS AN INDIVIDUAL. THE DEPARTMENT CO NDUCTED A SEARCH ON 14.2.2008 IN HIS GROUP OF CASES. HE ADMIT TED UNACCOUNTED ON-MONEY INCOME OF RS.3 CRORES IN HIS STATEMENT REC ORDED IN COURSE OF THE SEARCH. AND INCLUDED THE VERY SUM IN HIS RETURN FILED ON 12.1.2009. THE ASSESSING OFFICER COMPLETED A REGULAR ASSESSMEN T ON 24.12.2009 MAKING UNEXPLAINED INVESTMENT ADDITION OF RS.6,79,1 0,000/-. AND INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT ALLEGING CONCEALMENT AND FURNISHING OF INACCURATE PARTICULAR S OF INCOME AT THE ASSESSEES BEHEST. THE ASSESSEE DOES NOT SEEM TO HA VE FILED ANY APPEAL. QUANTUM PROCEEDINGS ATTAINED FINALITY ACCOR DINGLY. 4. THE ASSESSING OFFICER TOOK UP THE PENALTY PROCEE DINGS. THE ASSESSEE INTER ALIA QUOTED SECTION 271AAA(2)(I)-(II I) AND CLAIMED TO HAVE ADMITTED THE AFORESAID UNDISCLOSED INCOME OF R S.3 CRORES, SPECIFIED AS WELL AS SUBSTANTIATED MANNER OF DERIVI NG THE SAME ALONG WITH PAYMENT OF TAXES AND INTEREST. THE ASSESSING O FFICER HELD IN PENALTY ORDER DATED 29.06.2010 THAT ALTHOUGH THE AS SESSEE HAD DECLARED THE ABOVESTATED UNDISCLOSED INCOME OF RS. 3 CRORES, HE HAD ITA NO.2090 & 2091/AHD/2011 SHRI JAIPRAKASH K. ASWANI & M/S. SURYA PRAKASH ORGA NIZERS. FOR A.Y. 2008-09 - 3 - NOT DISCLOSED PARTICULARS OF HIS ACCOUNTS AND DETAI LS WITH SOURCE THEREOF. HE RECITED ASSESSMENT PROCEEDINGS AND OBSE RVED THAT THE VERY FACTUAL POSITION HAD CONTINUED THEREIN. HE CONCLUDE D THAT CONDITIONS ENUMERATED IN SECTION 271AAA(2)(I) AND (II) HAD NOT BEEN FULFILLED. THIS RESULTED IN THE IMPUGNED PENALTY OF RS.30 LACS @ 10% OF THE UNDISCLOSED INCOME AMOUNTING TO RS.3 CRORES BEING L EVIED IN THE ASSESSEES CASE. 5. THE ASSESSEE PREFERRED APPEAL. THE CIT(A) HAS AC CEPTED HIS CONTENTION ON MERITS AS UNDER: 5. I HAVE CONSIDERED THE FACTS OF THE CASE MENTION ED BY THE AO, THE BASIS OF LEVY OF PENALTY, SUBMISSIONS MADE BY L D. AR ON BEHALF OF THE ASSESSEE AND THE CASE LAWS RELIED UPON. 5.1 THE LD. AR'S ARGUMENT THAT THE INCOME DISCLOSED BY THE ASSESSEE COULD NOT BE COVERED UNDER THE DEFINITION OF 'UNDISCLOSED INCOME' AS DEFINED IN EXPL.(A) TO SECTION 271 AAA O F THE ACT, CANNOT BE ACCEPTED BECAUSE THE ASSESSEE HIMSELF MAD E DISCLOSURE OF UNACCOUNTED INCOME WHILE RECORDING THE STATEMENT U/S.132(4) OF THE I.T. ACT. HE HAS ALSO ADMITTED THAT UNDISCLOSED INCOME WAS INVESTED IN LAND, UNACCOUNTED CASH, JEWELLERY AND R ECEIVABLES AND UNDISCLOSED INCOME WAS NOT RECORDED IN THE BOOKS OF ACCOUNTS. THE DISCLOSURE MADE BY THE ASSESSEE FOR UNDISCLOSED INC OME OF RS.3,00,00,000/-, IS CLEARLY COVERED UNDER THE DEFI NITION OF 'UNDISCLOSED INCOME' AS PER EXPL.(A) TO SECTION 271 AAA OF THE I.T. ACT. 5.2 ON PERUSAL OF ASSESSMENT ORDER IT IS FOUND THAT IN PARA 6 OF THE ORDER THE ASSESSING OFFICER ISSUED NOTICE FOR INITI ATING PENALTY UNDER SECTION 274 R.W.S. 271 (1)(C) OF THE INCOME T AX ACT AND NOT UNDER SECTION 271 AAA. I ALSO PERUSED THE STATEMENT OF THE ASSESSEE RECORDED UNDER SECTION 132 (4) OF INCOME T AX ACT. THE AO HAS LEVIED THE PENALTY U/S 271AAA OF THE ACT BECAUS E THE FIRST TWO CONDITIONS OF SECTION 271AAA(2) ARE NOT FULFILLED B Y THE APPELLANT. THE THREE CONDITIONS PROVIDED IN SUB SECTION (2) OF SECTION 271 AAA ARE REPRODUCED AS UNDER: ITA NO.2090 & 2091/AHD/2011 SHRI JAIPRAKASH K. ASWANI & M/S. SURYA PRAKASH ORGA NIZERS. FOR A.Y. 2008-09 - 4 - (I) IN THE COURSE OF SEARCH, IN A STATEMENT UNDER S UB-SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME A ND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLO SED INCOME WAS DERIVED; AND (III) PAYS THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. CLAUSE (I) LAYS DOWN THE FIRST CONDITION THAT UNDIS CLOSED INCOME SHOULD HAVE BEEN ADMITTED BY THE ASSESSEE IN THE ST ATEMENT U/S. 132(4) AND ASSESSEE SHOULD SPECIFY THE MANNER IN WH ICH IT HAS BEEN DERIVED. SHRI JAIPRAKASH K. ASWANI IN HIS STAT EMENT RECORDED U/S 132(4) BEFORE DEPUTY DIT IN COURSE OF SEARCH ON 19 & 20.2.2008, STATED IN REPLY TO QUESTION NO.11, AND D ISCLOSED TOTAL INCOME OF RS.20.23 CRORES OUT OF WHICH UNDISCLOSED INCOME OF RS.3.00 CRORES BELONGED TO THE ASSESSEE. IN THE SAM E QUESTION THE AUTHORIZED OFFICER HIMSELF STATED 'IN THESE TRANSAC TIONS IT MAINLY APPEARS THAT RECEIPTS OF ON-MONEY FROM VARIOUS RESI DENTIAL PROJECTS BY YOUR GROUP COMPANIES, CLEARLY IMPLIES THAT THE INCOME IS EARNED FROM ON-MONEY. THE ASSESSEE IN HIS STATEMENT RECORDED U/S.132(4) DISCLOSED RS.3.00 CRORES ON ACCOUNT OF N ET INCOME FROM ON-MONEY RECEIPTS SO ASSESSEE SPECIFIED THE MANNER IN WHICH UNDISCLOSED INCOME WAS EARNED. CLAUSE (II) LAYS DOW N THE SECOND CONDITION THAT ASSESSEE SHOULD SUBSTANTIATE THE MAN NER IN WHICH UNDISCLOSED INCOME HAS BEEN DERIVED. SHRI JAIPRAKAS H K. ASWANI IN HIS STATEMENT RECORDED U/S.132(4) ON 19 & 20.2.2 008, IN REPLY TO QUESTION NO. 11, MADE DISCLOSURE OF TOTAL INCOME OF RS.20.23 CRORES AND HAS PROVIDED BIFURCATION OF UNDISCLOSED INCOME IN DIFFERENT HANDS AND MADE DISCLOSURE OF RS.3.00 CRORES IN THE HANDS OF THE ASSESSEE. IN THE SAME QUESTION THE AUTHORIZED OFFIC ER MENTIONED THAT IT WAS ESTABLISHED THAT THE ASSESSEE EARNED IN COME FROM ON MONEY AND SUBSTANTIATED THE MANNER IN WHICH UNACCOU NTED INCOME WAS EARNED. 5.3 THE PRINCIPLES LAID DOWN BY THE HON'BLE HIGH CO URTS IN THE CASES OF C1T V. MAHENDRA C. SHAH [2008] 299 1TR 305 (GUJ.) AND SECOND C1T V. RADHA KRISHNA GOEL [2005] 278 1TR 454 /[200G] 152 TAXMAN 290 (ALL.), ARE ALSO SQUARELY APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE . IN THE CASE OF CIT V. MAHENDRA C. SHAH, HON'BLE JURISDICTIONAL HIGH COURT HAS OBSERVED THAT WHEN THE STATEMENT IS BEING RECORDED BY THE AUTHORIZED OFFICER, IT IS INCUMBENT UPON THE AUTHOR IZED OFFICER TO ITA NO.2090 & 2091/AHD/2011 SHRI JAIPRAKASH K. ASWANI & M/S. SURYA PRAKASH ORGA NIZERS. FOR A.Y. 2008-09 - 5 - EXPLAIN THE PROVISION OF EXPLANATION 5 IN ENTIRELY TO THE ASSESSEE CONCERNED AND THE AUTHORIZED OFFICER CANNOT STOP SH ORT AT A PARTICULAR STAGE SO AS TO PERMIT THE REVENUE TO TAK E ADVANTAGE OF SUCH LAPSE IN THE STATEMENT. THE REASON IS NOT FAR TO SEEK. IN THE FIRST INSTANCE, THE STATEMENT IS BEING RECORDED IN THE QUESTION AND ANSWER FORM AND THERE WOULD BE NO OCCASION FOR AN A SSESSEE TO STATE AND MAKE AVERMENTS IN THE EXACT FORMAT STIPUL ATED BY THE PROVISIONS CONSIDERING THE SETTING IN WHICH SUCH ST ATEMENT IS BEING RECORDED. SECONDLY, CONSIDERING THE SOCIAL ENVIRONM ENT IT IS NOT POSSIBLE TO EXPECT FROM AN ASSESSEE, WHETHER LITERA TE OR ILLITERATE, TO BE SPECIFIC AND TO THE POINT REGARDING THE CONDITIO NS STIPULATED BY THE SECOND EXCEPTION WHILE MAKING STATEMENT UNDER S ECTION 132(4). EVEN IF THE STATEMENT DOES NOT SPECIFY THE MANNER I N WHICH THE INCOME IS DERIVED, IF THE INCOME IS DECLARED AND TA X THEREON PAID, THERE WOULD BE SUBSTANTIAL COMPLIANCE NOT WARRANTIN G ANY FURTHER DENIAL OF THE BENEFIT. IN THE CASE OF CIT V. RADHA KRISHNA GOEL [2005] 278 ITR 454, THE HON'BLE ALLAHABAD HIGH COURT GAVE SIMILAR FINDINGS AND LAID DOWN SIMILAR PRINCIPLES AS UNDER:- '...FROM A PERUSAL EXPLANATION 5, IT IS EVIDENT THA T THE CIRCUMSTANCES WHICH OTHERWISE DID NOT ATTRACT THE P ENALTY PROVISIONS OF SECTION 271(1J(C), NOW BY A DEEMING P ROVISION ATTRACT PENALTY PROVISIONS. BUT AN EXCEPTION IS PRO VIDED IN CLAUSE (2) OF EXPLANATION 5WHERE THE DEEMING PROVIS ION WILL NOT APPLY IF DURING THE COURSE OF SEARCH THE ASSESS ES MAKES THE STATEMENT UNDER SUB-SECTION (4) OF SECTION 132 THAT THE MONEY, BULLION, JEWELLERY ETC. FOUND IN HIS POSSESS ION HAS BEEN ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCLOSED SO FAR IN HIS RETURN OF INCOME AND ALSO S PECIFIES IN THE STATEMENT THE MANNER IN WHICH SUCH INCOME HAS B EEN DERIVED AND PAYS THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF SUCH INCOME....UNDER SECTION 132(4) OF T HE ACT, UNLESS THE AUTHORIZED OFFICER PUTS A SPECIFIC QUEST ION WITH REGARD TO THE MANNER IN WHICH INCOME HAS BEEN DERIV ED, IT IS NOT EXPECTED FROM THE PERSON TO MAKE A STATEMENT IN THIS REGARD AND IN CASE IN THE STATEMENT THE MANNER IN W HICH INCOME HAS BEEN DERIVED HAS NOT BEEN STATED BUT HAS BEEN STATED SUBSEQUENTLY, IT AMOUNTS TO COMPLIANCE WITH EXPLANATION 5(2). IF THERE IS NOTHING TO THE CONTRA RY IN THE STATEMENT RECORDED UNDER SECTION 132(4) -OF THE ACT , IN THE ABSENCE OF ANY SPECIFIC STATEMENT ABOUT THE MANNER IN ITA NO.2090 & 2091/AHD/2011 SHRI JAIPRAKASH K. ASWANI & M/S. SURYA PRAKASH ORGA NIZERS. FOR A.Y. 2008-09 - 6 - WHICH SUCH INCOME HAS .BEEN DERIVED, IT CAN BE INFE RRED THAT SUCH UNDISCLOSED INCOME WAS DERIVED FROM THE BUSINE SS WHICH HE WAS CARRYING ON. THE OBJECT OF THE PROVISI ON IS ACHIEVED BY MAKING THE STATEMENT ADMITTING THE NON- DISCLOSURE OF MONEY, BULLION., JEWELLERY, ETC. THUS , MUCH IMPORTANCE SHOULD NOT BE ATTACHED TO THE STATEMENT ABOUT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED. I T CAN BE INFERRED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, IN THE ABSENCE OF ANYTHING TO THE CONTRARY. THEREFORE, MERE NON-STATEMENT OF THE MANNER IN WHICH SUCH INCOME WA S DERIVED WOULD NOT MAKE EXPLANATION 5(2) INAPPLICABLE.'(P.454).' 5.4 AFTER GOING THROUGH THE STATEMENT RECORDED UNDE R SECTION 132 (4) OF THE IT ACT AND THE. PRINCIPLES LAID DOWN BY THE HONOURABLE GUJARAT HIGH COURT AND ALLAHABAD HIGH COURT, IT IS HELD THAT THE AO HAS WRONGLY REJECTED THE ASSESSEE'S ARGUMENTS ON THE GROUND THAT THE DECISION WAS RENDERED IN REFERENCE TO EXPL ANATION 5 OF SECTION 271(1)(C) AND NOT WITH REGARD TO THE SECTIO N 271AAA. THE HONOURABLE COURTS HAVE LAID DOWN THE PRINCIPLE THAT THE AUTHORIZED OFFICER IS TO EXPLAIN THE PROVISION TO T HE ASSESSEE AND ASK THE RELEVANT QUESTIONS ON THE MANNER IN WHICH T HE UNDISCLOSED INCOME WAS EARNED AND IN THE PRESENT CASE IT IS APP LICABLE FOR SECTION 271AAA INSTEAD OF EXPLANATION 5 OF SECTION 271(1). IN THE WHOLE, STATEMENT RECORDED UNDER SECTION 132(4) ON 19 & 20.2.2008, THE AUTHORIZED OFFICER HAS NOT ASKED ANY FURTHER QU ESTION BUT WAS SATISFIED WITH THE MANNER THE INCOME WAS EARNED BY THE ASSESSEE. CLAUSE (III) LAYS DOWN THE THIRD CONDITION REGARDIN G THE PAYMENT: OF TAX ALONG WITH INTEREST ON UNDISCLOSED INCOME AD MITTED IN THE COURSE OF SEARCH. IT IS UNDISPUTED FACT THAT THE TA X AND INTEREST HAD BEEN PAID BY THE ASSESSEE. THE ASSESSING OFFICER HI MSELF STATED THE SAME IN THE PENALTY ORDER. THE ASSESSEE HAS MADE DISCLOSURE OF UNACCOUNTED INC OME WHILE RECORDING STATEMENT UNDER SECTION 132(4) OF THE INC OME TAX ACT AND PAID THE TAXES WITH INTEREST. THE DISCLOSURE WA S NEITHER MADE AGAINST ANY MONEY, BULLION, JEWELLERY OR OTHER VALU ABLE ARTICLES OR THINGS FOUND DURING THE COURSE OF SEARCH NOR MADE A GAINST ANY ENTRY IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS O R TRANSACTIONS FOUND IN THE COURSE OF SEARCH BECAUSE NO SUCH ASSET S OR TRANSACTIONS WERE FOUND DURING THE COURSE OF SEARCH . THE DISCLOSURE OF UNACCOUNTED INCOME IN THE ENTIRE GROU P WAS MADE IN THE STATEMENT OF SHRI JAIPRAKASH K. ASWANI RECORDED U/S. 132(4) ON ITA NO.2090 & 2091/AHD/2011 SHRI JAIPRAKASH K. ASWANI & M/S. SURYA PRAKASH ORGA NIZERS. FOR A.Y. 2008-09 - 7 - THE GROUND OF 'ON MONEY' COLLECTED ON BOOKING OF RE SIDENTIAL PROPERTIES IN THEIR PROJECTS. IN VIEW OF THE ABOVE CIRCUMSTANCES AND ON THE BASIS OF PRINCIPLES LAID DOWN BY THE HONOURABLE JURISDICTIONAL HIGH COU RT AND BY THE ALLAHABAD HIGH COURT IN THE ABOVE CITED CASES THE A SSESSEE CAN BE SAID TO HAVE SUBSTANTIALLY DISCHARGED THE ONUS OF E XPLAINING AND SUBSTANTIATING THE MANNER OF EARNING UNDISCLOSED IN COME BECAUSE THE ASSESSING OFFICER MADE ASSESSMENT OF DISCLOSURE MA.DE BY ASSESSEE ON THE BASIS OF ACTUAL INCOME AND NOT ON T HE BASIS OF THE INVESTMENT/EXPENDITURE UNDER THE VARIOUS DEEMING PR OVISIONS. MOREOVER, THE ASSESSING OFFICER, IN THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT, ACCEPTED THE RETURNED INCOM E DECLARED BY THE ASSESSEE. THE RETURNED INCOME INCLUDED DISCLOSURE A MOUNT OF RS.3,00,00,000/- MADE DURING SEARCH WHILE RECORDING STATEMENT U/S.132(4) OF THE ACT. THE A.O. HAS NOT MADE ANY CO MMENT OR OBSERVATION ABOUT THE SOURCE AND NATURE OF INCOME, MANNER IN WHICH INCOME WAS DERIVED OR SUBSTANTIATING THE MANN ER. THIS SHOWS THAT THE A.O. HIMSELF WAS SATISFIED ABOUT THE INCOME OFFERED IN RETURN OF INCOME, THEREFORE, HE DID NOT INITIATE PENALTY IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE AND THE P RINCIPLES LAID DOWN IN THE DECISIONS BY THE HONBLE HIGH COURTS NA RRATED ABOVE IN PARAS 4.1 AND 5.3 OF THIS ORDER, IT IS HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN LEVYING THE PENALTY U/ S.271AAA OF THE ACT AND HENCE THE SAME IS DELETED. THIS LEAVES THE REVENUE AGGRIEVED. 6. WE HAVE HEARD BOTH SIDES AND PERUSED THE CASE FI LE. THE REVENUE REITERATES THE ASSESSING OFFICERS FINDINGS IN PENALTY ORDER REGARDING NON FULFILMENT OF CONDITIONS U/S. 271AAA( 2)(I) AND (II) I.E. MANNER OF DERIVING OF THE IMPUGNED UNDISCLOSED INCO ME WAS NEITHER SPECIFIED NOR SUBSTANTIATED IN THIS CASE. THE ASSES SEE SUPPORTS THE CIT(A) ORDER. IT IS EVIDENT THAT THE ASSESSEE HAS A TTRIBUTED THIS UNDISCLOSED INCOME TO BE ON-MONEY ON SALE OF RESIDE NTIAL PROPERTIES THROUGHOUT. THE CIT(A) HOLDS THAT THE ASSESSING OFF ICER ACCEPTED THE ABOVESTATED SOURCE AND UNDISCLOSED INCOME IN ASSESS MENT FRAMED ITA NO.2090 & 2091/AHD/2011 SHRI JAIPRAKASH K. ASWANI & M/S. SURYA PRAKASH ORGA NIZERS. FOR A.Y. 2008-09 - 8 - WITHOUT MAKING ANY COMMENT OR OBSERVATION. THIS CAS E FILE COMPRISES OF THE ASSESSMENT ORDER AS WELL. THE REVENUE FAILS TO REFER TO ANY SUCH QUERY BEING PUT UP TO THE ASSESSEE DOUBTING THE SOU RCE AND MANNER OF DERIVING OF THE IMPUGNED UNDISCLOSED INCOME. WE FIN D THAT A CO- ORDINATE BENCH IN ITA 1052/AHD/2012 DECIDED ON 20.7 .2012 HAS QUOTED THE HONBLE JURISDICTIONAL HIGH COURT DECISI ON IN CASE OF CIT VS. MAHINDRA C. SHAH (2008) 299 ITR 305 (GUJ.) IN HOLDI NG THAT WHEN AN ASSESSEE ADMITS UNDISCLOSED INCOME IN COURSE OF SEA RCH, OFFERS IT TO BE TAXED IN THE RETURN, PAYS TAX THEREUPON, NO PENALTY CAN BE LEVIED PARTICULARLY IN THE ABSENCE OF ANY QUESTION BEING R AISED IN RESPECT THEREOF BY THE ASSESSING OFFICER. THE REVENUE FAILS TO POINT OUT ANY EXCEPTION TO THE SAME. IT ALSO DOES NOT REBUT THE C IT(A) CRUCIAL FINDINGS THAT THE ASSESSEE HAD NOT BEEN PUT TO SPEC IFIC QUESTION SPECIFYING AND SUBSTANTIATING THE MANNER OF HAVING DERIVED THE IMPUGNED UNDISCLOSED INCOME. WE DRAW SUPPORT THEREF ROM AND AFFIRM THE CIT(A) FINDINGS UNDER CHALLENGE. THE REVENUES SOLE SUBSTANTIVE GROUND FAILS ACCORDINGLY. ITA 2090/AHD/2011 IS DISMISSED. 7. SAME ORDER TO FOLLOW IN ITA 2091/AHD/2011. 8. THESE REVENUES APPEALS BEARING NOS. 2090 AND 20 91/AHD/2011 ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON THIS DAY, THE 26 JUNE, 2015 AT AHMEDABAD. SD/- SD/- (G.D. AGRAWAL) (S.S. GOD ARA) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD; DATED /06/2015 ITA NO.2090 & 2091/AHD/2011 SHRI JAIPRAKASH K. ASWANI & M/S. SURYA PRAKASH ORGA NIZERS. FOR A.Y. 2008-09 - 9 - PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! '# $ / CONCERNED CIT 4. $ () / THE CIT(A)-III, AHMEDABAD 5. '() **'# , '# , ,-! / DR, ITAT, AHMEDABAD 6. )./ 0 / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION-23.06.2015 DIRECT ON COMPUTER 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23.06.2015 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S. 26-6-2015 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 26-6-201. DATE ON WHICH THE FAIR ORDER COMES TO THE SR.P.S. 26-6-2015. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK- 30- 6-2015 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER