Assistant Commissioner of Income-tax, V. Shri Vikas Bapurao Takawane, Pune

ITA 2245/PUN/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9172 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 15-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A JAY DHAKE
• Assessee Lawyers: HARI KRISHAN
• Keywords: Retrospective amendment; Revised return; Reason to believe
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 2245 /P U N/201 4 / ASSESSMENT YEAR : 20 11 - 12 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), PUNE ....... / APPELLANT / V/S. SHRI VIKAS BAPURAO TAKAWANE, RAJYOG BUNGALOW, PLOT NO. 10, SECTOR NO. 28, PRADHIKARAN, PUNE 411044 / RESPONDENT ASSESSEE BY : S HRI HARI K RISHAN REVENUE BY : SHRI A JAY DHAKE / DATE OF HEARING : 1 4 - 06 - 2017 / DATE OF PRONOUNCEMENT : 26 - 0 7 - 2017 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - CENTRAL, PUNE DATED 10 - 09 - 2014 FOR THE ASSESSMENT YEAR 201 1 - 12 IN DELETING PENALTY LEVIED U/S. 271AAA O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). 2 ITA NO . 2245/PUN/2014, A.Y. 2011 - 12 2. THE FACTS AS EM ANATING FROM RECORD ARE : THE ASSESSEE IS A CHAIRMAN OF SIDDHESHWAR GROUP. A SEARCH ACTION U/S. 132 OF THE ACT WAS CARRIED OUT IN THE CASE OF SIDDHESHWAR GROUP ON 27 - 09 - 2010. THE ASSESSEE FILED HIS RETURN OF INCOME ON 05 - 03 - 2012 DECLARING TOTAL INCOME OF RS.1,56,73,256/ - AND AGRICULTURAL INCOME OF RS.1,22,379/ - . THEREAFTER, THE ASSESSEE FILED ANOTHER RETURN OF INCOME ON 14 - 12 - 2012 DISCLOSING TOTAL INCOME AS RS.1,62,31,756/ - AND AGRICULTURAL INCOME OF RS.1,22,379/ - . DURING THE COURSE OF SEARCH PROCEEDING S , THE ASSESSEE OFFERED ADDITIONAL INCOME OF RS. 83,33,375/ - FOR ASSESSMENT YEAR 2011 - 12. RS.51,00,000/ - WAS DISCLOSED ON ACCOUNT OF EXPENDITURE ON CONSTRUCTION OF BUNGALOW AND RS.32,33,375/ - ON ACCOUNT OF GOLD JEWELRY. THE ASSESSING OFFICER INITIATED PEN ALTY PROCEEDINGS U/S. 271AAA OF THE ACT. NOTICE U/S. 274 R.W.S. 271AAA WAS ISSUED ON 28 - 03 - 2013 AND PENALTY OF RS.16,23,180/ - WAS LEVIED U/S. 271AAA VIDE ORDER DATED 27 - 09 - 2013. AGGRIEVED BY THE ORDER LEVYING PENALTY, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE IMPUGNED ORDER DELETED THE PENALTY BY HOLDING THAT THRESHOLD CONDITIONS FOR BRINGING THE CASE U/S. 271AAA ARE NOT MADE. NOW, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL ASSAILING THE FINDINGS OF FIRST APPELLATE AUTHORITY. 3. SHRI AJAY DHAKE REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE ORDER LEVYING PENALTY U/S. 271AAA OF THE ACT. THE LD. DR SUBMITTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HOLDING THAT ADDITIONAL INCOME ON WHICH PENALTY WAS IMPOSED DOES NOT FALL UNDER THE DEFINITION OF UNDISCLOSED INCOME SO AS TO ATTRACT PENALTY UNDER THE PROVISIONS OF SECTION 271A AA OF THE ACT. THE LD. DR CONTENDED THAT THE 3 ITA NO . 2245/PUN/2014, A.Y. 2011 - 12 COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT APPRECIATING THE FACT THAT CERTAIN MOVABLE AND IMMOVABLE ASSETS WERE FOUND DURING THE COURSE OF SEARCH. ON THE BASIS OF THESE ASSETS DISCLOSURE WAS MADE BY THE ASSESSEE IN HIS STATEMENT RECORDED U/S. 132(4) OF THE ACT. THE LD. DR FURTHER PLACED RELIANCE ON THE DECISION OF MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX VS. PRAKASH STEELAGE LTD. REPORTED AS 153 ITD 493. TO S TRENGTHEN HIS SUBMISSIONS, THE LD. DR FILED WRITTEN SUBMISSIONS WHICH ARE AS UNDER : LD CIT(A) HAS DELETED THE PENALTY LEVIED U/S 271AAA OF THE ACT BY HOLDING THAT ADDITIONAL INCOME ON WHICH PENALTY WAS IMPOSED DOES NOT FALL UNDER THE DEFINITION OF UNDISC LOSED INCOME. SEARCH WAS CONDUCTED ON THE ASSESSEE ON 27.09.2010 AND STATEMENT U/S 132(4) WAS RECORDED IN WHICH THE ASSESSEE MADE DISCLOSURE OF INCOME OF RS.83,33,375/ - HAVING UNDISCLOSED INVESTMENT OF RS . 51,00,000 / - IN BUNGLOW AND RS. 32,33,375/ - IN GOLD. RETURN OF INCOME WAS FILED ON 05.03.2012 DECLARING RS . 1,56,73,256/ - AS INCOME AND RS. 1,22,379/ - AS AGRICULTURAL INCOME. REVISED RETURN WAS FILED ON 14.12.2012 AFTER THE INITIATION OF THE ASSESSMENT PROCEEDINGS WITH INCOME OF RS . 1,62,31,756/ - AND RS . 1,22,3 79/ - AS AGRICULTURAL INCOME. THIS FACT IS CLEARLY SHOWN IN THE PARA 3 ON PAGE 2 OF THE ASSESSMENT ORDER. BOTH OF THESE INVESTMENT FORM PART OF THE UNDISCLOSED INCOME FOR THE CLAUSE (A) OF EXPLANATION TO SECTION 271AAA. IT IS TO MENTION HERE THAT THE ASS ESSEE DIDN'T FILE RETURN OF INCOME FOR THE EARLIER TWO YEARS. HE CAME FORWARD WITH UNDISCLOSED INCOME ONLY AS A RESULT OF SEARCH. THESE ASSETS WERE NOT RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. REFERRING TO PARA 6.7 OF THE HON'BLE CIT(A)'S ORDER, HE STATES 'I FIND THAT THERE IS NOT A WHISPER IN EITHER OF THEM ABOUT ANY INCO ME REPRESENTED EITHER BY MONEY - BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF ACCOUNT. THE ONLY REASON CITED BOTH WHILE INITIATING PENALTY P ROCEEDINGS IN THE ASSESSMENT ORDER AND FOR LEVYING PENALTY IN THE PENALTY ORDER IS THAT THE ASSESSEE HAD DISCLOSED / OFFERED ADDITIONAL INCOME AS A CONSEQUENCE OF SEARCH AND SUBSEQUENTLY FILED ROI DECLARING THE SAME IN HIS HANDS. ACCORDINGLY, THE ADDITIONAL INCOME BASED ON WHICH PENALTY HAS BEEN IMPOSED BY THE ID AO IN THE PRESENT CA SE CANNOT BE SAID TO CONSTITUTE 'UNDISCLOSED INCOME' SINCE THERE IS NOTHING TO INDICATE THAT IT REPRESENTED BY ANY ASSET FOUND OR ANY ENTRY EITHER IN THE SEIZED BOOKS OR REGULAR BOOKS. ' THE ASSESSEE'S SUBMISSION WHICH IS ALSO THERE IN THE PENALTY ORDER AT PARA 3 IS AS UNDER 4 ITA NO . 2245/PUN/2014, A.Y. 2011 - 12 'IT IS PERTINENT TO NOTE THAT, I HAVE ALREADY ADMITTED AND VOLUNTARILY DECLARED THE UNDISCLOSED INCOME OF RS . 83,33,315 / - IN MY STA TEMENT AND ACCORDINGLY COMPLIED THE ENTIRE CONDITION PROVIDED IN SUBSECTION (2) OF SECTION 271AAA OF THE ACT. THE AMOUNT OF UNDISCLOSED INCOME ASSESSED IS PART OF THE SAID DISCLOSURE ONLY . THE ASSESSEE HIMSELF IS AGREEING TO THE FACT THAT HE HAD UNDISCLO SED INCOME IN HIS SUBMISSION DURING - PENALTY PROCEEDINGS. IN CASE OF DOUBT WHETHER THERE WAS ANY UNDISCLOSED INCOME OR NOT, THE STATEMENT OF THE ASSESSEE U/S 132(4) MAY REFERRED TO WHILE DECIDING ON THIS ISSUE. RECENTLY, A CASE WITH SUCH FACTS WAS DECIDED BY THE ITAT CHANDIGARH BENCH IN CASE OF SHRI RAJNISH VOHRA VS. DCIT, IN ITA NUMBER ITA NO. 516/CHD/2012, HELD AS UNDER: - 30. FURTHER. THE PROVISIONS OF SECTION 153A ARE SPECIFICALLY BROUGHT ON THE STATUTE BOOK, FOR ASSESSMENT, IN CASE OF SEARCH U/S 132(1 ) OR REQUISITION OF BOOKS OF ACCOUNT U/S 132A OF THE ACT. THE OPENING SENTENCE OF SECTION 153A OF THE ACT, OVERRIDES THE PROVISIONS OF SECTION 139, 147, 148, 149, 151 AND 153 OF THE ACT. THE ASSESSEE HAS DECLARED UNDISCLOSED INCOME, IN THE RETURN FILED, IN RESPONSE TO NOTICE U/S 153A OF THE ACT AND THE CIT(APPEALS), HAVING REGARD TO THE FACTS OF THE CASE, INVOKED THE CURRENTLY APPLICABLE EXPLANATION 5A SECTION 271(1) (C) OF THE ACT AND UPHELD THE PENALTY, LEVIED BY THE AO. IN SUCH A FACT - SITUATION, THE CIT( APPEALS) HAS ACTED IN ACCORDANCE WITH THE CURRENTLY OPERATIVE AND RELEVANT PENAL PROVISIONS, WITH REFERENCE TO THE RETURN OF INCOME, FILED IN RESPONSE TO SECTION 153A OF THE ACT. 31. IN VIEW OF THE ABOVE LEGAL AND FACTUAL DISCUSSIONS, AND HAVING REGARD TO THE EXPRESS STATUTORY PROVISIONS OF SECTION 271 (1) (C) OF THE ACT READ WITH EXPLANATION 5A THEREUNDER, AS INSERTED BY THE FINANCE (NO. 2) ACT, 2009, WITH RETROSPECTIVE EFFECT FROM 01.06.2007, WE DO NOT FIND ANY INFIRMITY, IN THE FINDINGS OF ID CIT(APPEAL S) . THEREFORE, THE FINDINGS OF THE CIT(APPEALS) ARE UPHELD AND, CONSEQUENTLY, THE GROUNDS OF APPEAL OF THE ASSESSEE ARE DISMISSED . INCOME TAX APPELLATE TRIBUNAL - AMRITSAR, PARVINDER SINGH PROP., AMRITSAR. V S DEPARTMENT OF INCOME TAX ON 15 JULY, 2013 . 5. A SPECIFIC REFERENCE WAS MADE TO SECTION 271AAA(2)(III) WHERE THE ASSESSEE FOR GETTING IMMUNITY FROM LEVY OF PENALTY HAS TO PAY THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF UNDISCLOSED INCOME. HE ARGUED THAT PAYING OF THE TAX TOGETHER WITH INT EREST IS WITH REFERENCE TO FILING OF RETURN OF INCOME I.E. THE SAME HAS TO BE PAID BEFORE FILING THE INCOME TAX RETURN. IF IT IS PAID LATER THAN THAT THEN THE PENALTY U/S 271 AAA HAS TO BE LEVIED @ 10% OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YE AR, AS REFERRED IN SECTION 271AAA(1) OF THE ACT. THE LD DR RELIED UPON THE DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. MRIDULA, PROP. DHRUV FABRICS REPORTED IN (2011) 335 ITR 266. IN VIEW OF THE ABOVE, IT IS CLEAR THAT THE A SSESSEE HAD UNDISCLOSED INCOME AS ASSET OF RS.51,00,000/ - IN BUNGLOW AND RS . 32,33,375/ - IN GOLD AS PER THE STATEMENT U/S 132(4) AS SHOWN IN THE PARA 3 ON PAGE 2 OF THE ASSESSMENT 5 ITA NO . 2245/PUN/2014, A.Y. 2011 - 12 ORDER. BOTH OF THESE INVESTMENT FORM PART OF THE UNDISCLOSED INCOME FOR THE CLAUSE (A) OF EXPLANATION TO SECTION 271AAA. THEREFORE, IT IS REQUESTED TO SET ASIDE THE ORDER OF HON'BLE CIT(A) AND CONFIRM THE PENALTY ORDER OF THE AO. 4. ON THE OTHER HAND SHRI HARI K RISHAN APPEARING ON BEHALF OF THE ASSESSEE VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN DELETING PENALTY . THE LD. AR CONTENDED THAT DURING THE COURSE OF SEARCH, THE ASSESSEE MADE DISCLOSURE OF RS.32 LAKHS IN RESPECT OF EXCESS JEWELRY FOUND. IN THE CONCLUDING STATEMENT RECORDE D ON 13 - 11 - 2010, THE ASSESSEE DISCLOSED INVESTMENT TO THE TUNE OF RS.51 LAKHS IN BUNGALOW UNDER CONSTRUCTION . THUS, THE TOTAL ADDITIONAL INCOME OFFERED BY THE ASSESSEE IN ASSESSMENT YEAR 2011 - 12 WAS TO THE TUNE OF RS.83,33,375/ - . THE LD. AR SUBMITTED TH AT A PERUSAL OF THE ASSESSMENT ORDER WOULD SHOW THAT THE ASSESSING OFFICER WHILE RECORDING SATISFACTION FOR LEVY OF PENALTY U/S. 271AAA HAS OBSERVED THAT PENALTY IS LEVIED FOR CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN TH E ORDER LEVYING PENALTY AGAIN THE ASSESSING OFFICER HAS OBSERVED THAT HE HAS REASON TO BELIEVE AND CONCLUDE THAT THE ASSESSEE HAS CONCEALED HIS INCOME FOR ASSESSMENT YEAR 2011 - 12. THE ASSESSING OFFICER FURTHER RECORDS THAT IN THE FACTS HE SATISFIED THAT T HE ASSESSEE HAS CONCEALED HIS INCOME FOR ASSESSMENT YEAR 2011 - 12. THE PROVISIONS OF SECTION 271AAA ARE FOR LEVYING OF PENALTY IN RESPECT OF UNDISCLOSED INCOME AND NOT FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. AR POINTED THAT UNDISCLOSED INCOME HAS BEEN DEFINED IN E XPLANATION TO SECTION 271AAA OF THE ACT. THE ASSESSING OFFICER NEITHER IN THE ASSESSMENT ORDER NOR IN THE ORDER LEVYING PENALTY HAS MADE ANY REMARKS ABOUT THE UNDISCLOSED INCOME . THE LD. AR FURT HER REFERRED TO THE NOTICE ISSUED U/S. 274 R.W.S. 271AAA OF THE ACT AT PAGE 6 OF THE PAPER BOOK 6 ITA NO . 2245/PUN/2014, A.Y. 2011 - 12 TO SHOW THAT THERE IS INCONSISTENCY IN THE NOTICE VIS - - VIS RECORDING OF SATISFACTION FOR INITIATING PENALTY PROCEEDINGS AND THE ORDER LEVYING PENALTY U/S. 271A AA OF THE ACT. THE NOTICE IS ISSUED FOR LEVY OF PENALTY U/S. 271AAA IN RESPECT OF UNDISCLOSED INCOME IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS FOUND IN THE COURSE OF SEARCH. THE NOTICE ISSUED IS DEFECTIVE AS THE ASSESSING OFFICER HAS NOT SPECIFIED THE CHARGE FOR LEVY OF PENALTY AND IS INCONSISTENT WITH THE REASONS RECORDED. TO SUPPORT OF HIS CONTENTION THE LD. AR PLACED RELIANCE ON THE FOLLOWING DECISIONS : I . COMMISSIONER OF INCOME TAX VS. SSAS EMERALD MEADOWS, 73 TAXMANN.COM 248 (SC); II . CO MMISSIONER OF INCOME TAX VS. SSAS EMERALD MEADOWS, 73 TAXMANN.COM 241 (KARNATAKA); III . KANHAIYALAL D. JAIN VS. ASSTT. COMMISSIONER OF INCOME TAX IN ITA NOS. 1201 TO 1205/PN/2014 FOR ASSESSMENT YEARS 2003 - 04 TO 2007 - 08 DECIDED ON 30 - 11 - 2016. 4.1 THE LD. AR O F THE ASSESSEE STATED AT THE BAR THAT IN THE CASE OF OTHER GROUP COMPANIES NO PENALTY U/S. 271AAA WAS LEVIED. THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT IN THE ASSESSMENT YEAR 2010 - 11 IN THE CASE OF OTHER GROUP CONSTITUENTS WAS DELETED BY THE TRIBUNAL. 5. W E HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW . WE HAVE ALSO EXAMINED THE DOCUMENTS REFERRED TO BY THE LD. AR OF THE ASSESSEE AND THE DECISIONS RELIED UPON BY THE REPRESENTATIVES OF RIVAL SIDES. THE REVENUE IS IN APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN DELETING PENALTY LEV IED U/S. 271AAA OF THE ACT. BEFORE DECIDING THE ISSUE IT 7 ITA NO . 2245/PUN/2014, A.Y. 2011 - 12 WOULD BE RELEVANT TO FIRST REFER TO THE PROVISIONS OF SECTION 271AAA OF THE ACT . THE RELEVANT EXTRACTS OF THE SAME ARE REPRODUCED HERE - IN - BELOW : (1) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANY THING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007 [BUT BEFORE THE 1ST 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 OF TEN PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. (2) NOTHING CONTAINED IN SUB - SECTION (1) SHALL APPLY IF THE ASSESSEE, (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT U NDER SUB - SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED; AND (III) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. (3) NO PENALTY UNDER THE PROVISIONS OF CLAUSE (C) OF SUB - SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN RESPECT OF THE UNDISCLOSED INCOME REFERRED TO IN SUB - SECTION (1). (4) THE PROVISIONS OF SECTIONS 274 AND 275 SHALL, SO FAR AS MAY BE, APPLY IN RELATION TO THE PENALTY REFERRED TO IN THIS SECTION. EXPLANATION. FOR THE PURPOSES OF THIS SECTION, (A) UNDISCLOSED INCOME MEANS (I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRESENTED, EITHER WHOLLY OR PARTLY, BY ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS FOUND IN THE COURSE OF A SEARCH UNDER SECTION 132, WHICH HAS (A) NOT BEEN RECORDED ON OR BEFORE THE DATE OF SEARCH 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 [PRINCIPAL CHIEF COMMISSIONER OR] CHIEF COMMISSIONER OR [PRINCIPAL COMMISSIONER OR] COMMISSIONER BEFORE THE DATE OF SEARCH; OR (II) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRESENTED, 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; 8 ITA NO . 2245/PUN/2014, A.Y. 2011 - 12 6. A BARE PERUSAL OF SECTION 271AAA SHOWS THAT THE PENALTY IS LEVIED IN RESPECT OF UNDISCLOSED INCOME. THE EXPR ESSION UNDISCLOSED INCOME HAS BEEN DEFINED IN E XPLANATION TO SECTION 271AAA OF THE ACT. PENALTY U/S. 271AAA IS NOT LEVIED FOR CONCEALMENT OF INCOME AND/OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. A PERUSAL OF ASSESSMENT ORDER SHOWS THAT THE ASSESSING OFFICER WHILE RECORDING SATISFACTION FOR LEVYING PENALTY U/S. 271AAA HAS CATEGORICALLY STATED THAT THE PENALTY PROCEEDINGS ARE INITIATED FOR CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. THUS, IT IS EVIDENT THAT THE A SSESSING OFFICER WAS NOT CLEAR IN HIS MIND WHILE RECORDING SATISFACTION WHETHER THE PENALTY IS TO BE LEVIED UNDER THE PROVISIONS OF SECTION 271(1)(C) OR THE PROVISIONS OF SECTION 271AAA OF THE ACT. SIMILARLY, IN THE ORDER LEVYING PENALTY U/S. 271AAA , THE ASSESSING OFFICER LEVIED PENALTY FOR CONCEALMENT OF INCOME. THERE IS NO REFERENCE OF UNDISCLOSED INCOME EITHER IN THE ASSESSMENT ORDER OR THE ORDER LEVYING PENALTY U/S. 271AAA OF THE ACT. THE UNDISCLOSED INCOME AS DEFINED IN E XPLANATION TO SECTION 27 1AAA MEANS ANY INCOME REPRESENTED EITHER WHOLLY OR PARTLY BY ANY MONEY, BULLION, JEWELRY OR OTHER VALUABLE ARTICLE OR THINGS OR ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS FOUND IN THE COURSE OF SEARCH WHICH HAS NOT BEEN RECORDED I N THE BOOKS OF ACCOUNT OR DISCLOSED TO THE DESIGNATED INCOME TAX AUTHORITY BEFORE THE DATE OF SEARCH. IN THE PRESENT CASE, THE ASSESSING OFFICER HAS FAILED TO SPECIFY THE UNDISCLOSED INCOME UNEARTH ED DURING THE SEARCH AS ENVISAGED UNDER THE PROVISIONS O F SECTION 271AAA OF THE ACT. 7. THE MANNER IN WHICH THE ENTIRE PENALTY PROCEEDINGS ARE CONDUCTED RIGHT FROM INITIATION TO THE ORDER LEVYING PENALTY , INCLUDING ISSUANCE OF 9 ITA NO . 2245/PUN/2014, A.Y. 2011 - 12 NOTICE SHOWS THAT THERE WAS AMBIGUITY AND VAGUENESS IN THE MIND OF ASSESSING OFFIC ER WITH REGARD TO THE CHARGE AND THE PROVISIONS UNDER WHICH PENALTY IS TO BE LEVIED. AS A RESULT, THE NOTICE LEVYING PENALTY IS ALSO AMBIGUOUS AND HENCE BAD IN LAW . WE DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER DELETING PENALTY U/S. 271AAA OF THE AC T . WE CONCUR WITH THE REASONS GIVEN BY COMMISSIONER OF INCOME TAX (APPEALS) IN DELETING THE PENALTY. THE IMPUGNED ORDER IS UPHELD AND THE APPEAL OF THE REVENUE IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON WEDNESDAY, THE 26 TH DAY OF JULY, 2017 . SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 26 TH JULY, 2017 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CENTRAL, PUNE 4. / THE CIT - CENTRAL, PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE