ACIT, Central Circle - 4(3), , Kolkata V. Sri Devendra Kumar Mantri , Kolkata

ITA 2284/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8209 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-01-2020
• Assessment Year: 2013-2014
• Appeal Filed On: 05-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI ROY J
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Depreciation; Loose papers; Documents seized
• Section: 143(3); 68; 27; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 2284 - 2285 / KOL / 2018 ASSESSMENT YEARS : 2013-14 & 2014-15 ACIT, CENTRAL CIRCLE- 4(3), AAYKAR BHAWAN POORVA 5 TH FLOOR, ROOM NO. 510, 110, SHANTI PALLY, KOLKATA-107 V/S . SHRI DEVENDRA KUMAR MANTRI, 7, B.B. GANGULY STREET, KOLKATA-700 012 [ PAN NO.AIDPM 1867 C ] /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI MIRAJ D. SHAH, ADVOCATE /BY REVENUE SHRI DHRUBAJYOTI ROY, JCIT-DR /DATE OF HEARING 16-01-2020 /DATE OF PRONOUNCEMENT 22-01-2020 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE TWO REVENUES APPEALS FOR ASSESSMENT YEAR(S) 2013-14 & 2014- 15 ARISE AGAINST THE COMMISSIONER OF INCOME TAX (AP PEALS)-21 KOLKATAS SEPARATE ORDERS BOTH DATED 27.08.2018, INVOLVING PE NALTY(IES) U/S 271AAB OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE(S) PERUSED. 2. THE REVENUES IDENTICAL SOLE SUBSTANTIVE GROUND RAISED IN THESE APPEAL(S) SEEKS TO REVERSE THE CIT(A)S ACTION DELE TING THE SEC. 271AAB PENALTY(IES) OF 94,91,130/- AND 63,03,130/-; ASSESSMENT YEAR-WISE RESPECTIVELY, AS IMPOSED BY THE ASSESSING OFFICER. BOTH THE LEARNED REPRESENTATIVES STATED AT THE OUTSET THAT THE CIT(A )S LOWER APPELLATE DISCUSSIONS UNDER CHALLENGE TO THIS EFFECT READS AS UNDER:- 05. FINDINGS & DECISION: ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 2 1. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF T HE LD.AR OF THE APPELLANT AND THE OBSERVATIONS AND FINDINGS RECORDED BY THE L D. AO AND THE FACTUM OF THE CASE. IN THE FACTS INVOLVED IN THE PRESENT CASE , SEARCH ACTION U/S 132 WAS CONDUCTED ON 11.04.2013. IN THE COURSE OF SEARCH, C ERTAIN LOOSE PAPERS & DOCUMENTS WERE SEIZED WHICH INTER ALIA CONTAINED TH E DETAILS OF COMMODITY DEALINGS BY THE APPELLANT. WITH REFERENCE TO THESE LOOSE DOCUMENTS, THE APPELLANT ADMITTED BEFORE THE INVESTIGATING AUTHORI TIES THAT THEY REPRESENTED HIS INCOME AGGREGATING TO RS.3,16,37,099/- FOR THE RELEVANT PREVIOUS YEAR AND THEREFORE OFFERED THE SAME TO TAX IN THE RELEVANT A Y 2013-14. IN CONSONANCE WITH HIS STATEMENT SO RECORDED U/S 132(4), THE APPE LLANT DISCLOSED THE INCOME DERIVED FROM THESE TRANSACTIONS UNDER THE HEAD ' INCOME FROM OTHER SOURCES ' IN THE RETURN OF INCOME FILED FOR THE RELEVANT AY 2013-14. THE LD. AO WHO FRAMED THE ASSESSMENT U/S 143(3) ASSESSED TH E INCOME OF THE APPELLANT AS RETURNED BY HIM. THE LD. AO HOWEVER IN ITIATED PENALTY PROCEEDINGS U/S 271AAB OF THE ACT WITH REFERENCE TO SUCH INCOME. BEFORE THE LD. AO THE APPELLANT ARGUED THAT THE PENALTY U/S 27 1AAB WAS NOT APPLICABLE SINCE THE INCOME OF RS.3,16,37,099/- DID NOT REPRES ENT HIS ' UNDISCLOSED INCOME ' WITHIN THE MEANING PRESCRIBED IN EXPLANATION (C) TO SECTION 271AAB OF THE ACT. THE LD. AO WAS HOWEVER NOT AGREEABLE TO THE CONTENTION PUT FORTH BY THE APPELLANT AND HELD THAT THE APPELLANT'S CASE SQUARELY FELL WITHIN THE AMBIT OF SECTION 271AAB OF THE ACT. ACCORDING TO LD . AO SINCE THE APPELLANT FAILED TO SUBSTANTIATE THE MANNER IN WHICH THE INCO ME WAS DERIVED BY HIM, HE LEVIED PENALTY @ 30% ON THE UNDISCLOSED INCOME OF R S.3,16,37,099/- UNDER CLAUSE (C) OF SECTION 271AAB OF THE ACT. 2. IN THE APPELLATE PROCEEDINGS, THE LD. AR OF THE APPELLANT ASSAILED THE IMPUGNED ORDER OF THE LD. AO ON SEVERAL GROUNDS. IT WAS SUBMITTED THAT THE LOOSE DOCUMENTS ETC. FOUND & SEIZED IN THE COURSE O F SEARCH CONSTITUTED ' OTHER DOCUMENTS ' MAINTAINED THE NORMAL COURSE OF BUSINESS AND HENC E THE ENTRIES CONTAINED THEREIN DID NOT REPRESENT HIS ' UNDISCLOSED INCOME '. IT WAS FURTHER SUBMITTED THAT NO ASSET, JEWELLERY, MONEY, BULLION OR ANY OTHER VALUABLE ASSET WAS FOUND CORRESPONDING TO SUCH INCOME WHICH FURTHER FORTIFIED THAT SUCH INCOME DID NOT REPRESENT THE APPELLANT'S UNDIS CLOSED INCOME. THE LD. AR FURTHER OBJECTED TO THE VALIDITY OF THE PENALTY PROCEEDINGS SINCE ACCORDING TO HIM THE LD. AO DID NOT GIVE PROPER NOTICE IN THE MANNER PRESCRIBED. THE LD. AR FURTHER SUBMITTED IN THE ALTERNATE THAT THE PENA LTY, IF ANY, LEVIABLE, OUGHT TO HAVE BEEN LEVIED UNDER CLAUSE (A) I.E. @ 10% INSTEA D OF CLAUSE (C) I.E. 30% AS LEVIED BY THE LD. AO. 3. AFTER GIVING A THOUGHTFUL CONSIDERATION TO THE F ACTS INVOLVED IN THE PRESENT CASE, I FIND FORCE IN THE SUBMISSIONS' OF THE APPEL LANT. THE PRIMARY CONTENTION OF THE APPELLANT IS THAT THE INCOME OF RS.3,16,37,0 99/- ASSESSED BY WAY OF PROFIT DERIVED FROM COMMODITY DEALINGS DID NOT CONS TITUTE ' UNDISCLOSED INCOME ' DEFINED IN EXPLANATION (C) TO SECTION 271AAB OF T HE ACT. IN THIS REGARD IT WOULD THEREFORE BE RELEVANT TO EXAMINE TH E TERM ' UNDISCLOSED INCOME ' AS DEFINED IN EXPLANATION (C) TO SECTION 271AAB O F THE ACT, WHICH READS AS FOLLOWS: 'EXPLANATION : FOR THE PURPOSES OF THIS SECTION (C) ' UNDISCLOSED INCOME ' MEANS- ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 3 (I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRE SENTED, EITHER WHOLLY OR PARTLY, BY ANY MONEY, BULLION, JEWELLERY OR OTHE R 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 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 PRINCIPAL C HIEF COMMISSIONER OR] CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER BEFORE THE DATE OF SEARCH; OR (II) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPR ESENTED, EITHER WHOLLY OR PARTLY, BY ANY ENTRY IN RESPECT OF AN EXPENSE RE CORDED IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NOR MAL 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 CO NDUCTED.] 4. FROM THE ABOVE DEFINITION IT SHALL BE NOTED THAT THE LEGISLATURE HAS ASSIGNED SPECIFIC MEANING TO THE TERM ' UNDISCLOSED INCOME '. THE SAID MEANING IS NOT BORROWED FROM SECTION 68 TO 69D OF T HE ACT BUT THE TERM HAS BEEN SPECIFICALLY DEFINED FOR THE PURPOSES OF LEVY OF PENALTY SECTION 271AAB OF THE ACT. 5. THE TWO SUB-CLAUSES (I) & (II) CONTAINED IN CLAU SE (C) OF EXPLANATION 271AAB WHICH DEFINE ' UNDISCLOSED INCOME ' CAN BE FURTHER BROKEN TWO PARTS; SUB-CLAUSE (II) OF CLAUSE (C) OF SECTION 271AAB WHI CH DEFINES ' UNDISCLOSED INCOME ' CAN BE BIFURCATED AS FOLLOWS: A) ANY INCOME REPRESENTED BY ANY ENTRY IN RESPECT O F AN EXPENSE RECORDED IN THE BOOKS OF ACCOUNT WHICH IS FOUND TO BE FALSE, OR B) ANY OTHER DOCUMENTS MAINTAINED IN THE NORMAL COU RSE WHICH IS FOUND TO BE FALSE; 6. UNDENIABLY THE APPELLANT'S CASE IS NOT COVERED BY THE ABOVE TWO LIMBS . NEITHER DOES THE SUM OF RS.3,16,37,099/- REPRESENTS ANY ENTRY IN RESPECT OF EXPENSE WHICH IS FOUND TO BE FALSE NOR HAS THIS SUM BEEN ASSESSED WITH REFERENCE TO ANY DOCUMENT WHICH IS OTHERWISE FOUND TO BE FALSE. 7. I FURTHER NOTED THAT SUB-CLAUSE (I) OF CLAUSE (C ) OF EXPLANATION 1 TO SECTION 271AAB, ALSO HAS TWO LIMBS, WHICH ARE AS FOLLOWS: A) ANY INCOME REPRESENTED BY MONEY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING; OR B) ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRAN SACTIONS FOUND IN THE COURSE OF A SEARCH, ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 4 SHALL BE TREATED ' UNDISCLOSED INCOME ' IF IT WAS NOT FOUND RECORDED ON OR BEFORE THE DATE OF SEARCH IN THE BOOKS OF ACCOUNT ' OR ' OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PR EVIOUS YEAR . 8. IN THE FACTS INVOLVED IN THE PRESENT CASE, IT IS EVIDENT THAT THE SUM OF RS.3,16,37,099/- ASSESSED AS APPELLANT'S INCOME FOR THE RELEVANT YEAR DID NOT REPRESENT ANY ' UNEXPLAINED MONEY, BULLION, JEWELLERY, VALUABLE ART ICLE OR ANY OTHER ASSET ', FOR THE SIMPLE REASON THAT NO SUCH ASSET HAD BEE N IDENTIFIED EITHER BY THE LD.AO AND NO UNDISCLOSED A SSET CAME TO LIGHT AS A RESULT OF THE SEARCH CONDUCTED BY THE INVESTIGATION AUTHORITIES. ACCORDINGLY THE FIRST LIMB I.E. (A), IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 9. THE NEXT LIMB OF SECTION 271AAB DEFINES ' UNDISCLOSED INCOME ' AS, ANY ENTRIES FOUND IN THE BOOKS OF ACCOUNTS OR ANY DOCUM ENTS SEIZED IN THE COURSE OF SEARCH WHICH WAS EITHER NOT RECORDED IN THE (I) REGULAR BOOKS ON OR BEFORE THE DATE OF SEARCH, ' OR ' (II) IN THE DOCUMENTS MAINTAINED IN NORMAL COURSE OF BUSINESS. IN THIS REGARD ONE WOULD NOW NEED TO UNDE RSTAND AND EXAMINE THE MEANING OF THE PHASE ' DOCUMENTS MAINTAINED IN NORMAL COURSE OF BUSINESS '. WHEN ANY SEARCH OPERATIONS ARE CONDUCTED AT THE PREMISES OF ANY APPELLANT, IT IS POSSIBLE THAT ALL TRANSACTION CARRIED OUT BY THE ASSESSEE PRIOR TO THE COMMENCEMENT OF SEARCH MAY NOT NECESSA RILY BE FOUND RECORDED IN THE BOOKS TO THE VERY TIME & DATE OF SEARCH. IT IS VERY COMMON FOR ASSESSEES TO RECORD AND UPDATE THEIR BOOKS OF ACCOU NT AT PERIODIC INTERVALS, WHICH MAY BE WEEKLY, BI-WEEKLY, MONTHLY, QUARTERLY ETC. FOR INSTANCE THE CASH-BOOK OF AN ASSESSEE IS GENERALLY MAINTAINED AN DAY-TO- DAY BASIS. HOWEVER PURCHASES & SALES MADE IN THE REGULAR COURS E OF BUSINESS; ARE GENERALLY NOT RECORDED ON THE VERY DATE OF RECEIPT OR DISPATCH OF GODS BUT ON WEEKLY/MONTHLY BASIS, DEPENDING UPON THE VOLUME. FU RTHER ENTRIES WITH REGARD TO DEPRECIATION, INTEREST PROVISIONS, VALUAT ION OF CLOSING STOCK ETC. ARE GENERALLY PASSED AT THE END OF THE FINANCIAL YEAR A ND THESE ENTRIES MAY NOT BE FOUND IN THE BOOKS ON THE DATE OF SEARCH. SIMILARLY WHERE INCOME ARE DERIVED FROM SOURCES OTHER THAN ' BUSINESS ' OR THE ASSESSEE'S REGULAR SOURCES ', SUCH TRANSACTIONS & INCOME/LOSS DERIVED THEREFROM ARE GE NERALLY ACCOUNTED AT THE YEAR-END OR AT THE TIME OF FINALIZATION OF ACCOUNTS / RETURN OF INCOME. FOR THE REASONS SET OUT IN THE FOREGOING IT IS VERY MUCH PO SSIBLE THAT CERTAIN REGULAR BUSINESS DOCUMENTS WHICH ARE AVAILABLE WITH THE ASS ESSEE ON A PARTICULAR DATE MAY NOT BE RECORDED ON THE SAME DATE BUT IS IN CORPORATED IN THE REGULAR BOOKS AT A FUTURE DATE; BUT IN DUE COURSE. KEEPING IN VIEW THE FOREGOING PRACTICALITY OF THE MATTER, THE LEGISLATURE THEREFO RE CAREFULLY WORDED THE MEANING OF THE TERM ' UNDISCLOSED INCOME ' AND INCLUDED ONLY THOSE ENTRIES WHICH ARE EITHER NOT FOUND IN THE BOOKS OF ACCOUNTS OR THE REGULAR BUSINESS DOCUMENTS MAINTAINED IN NORMAL COURSE OF BUSINESS. 10. IN THE FACTS OF THE PRESENT CASE THE INVESTIGAT ING OFFICERS HAD FOUND LOOSE DOCUMENTS, WHICH CONTAINED ENTRIES WITH REGARD TO T HE COMMODITY DEALINGS OF THE APPELLANT. THE APPELLANT IS AN INDIVIDUAL, WHO DERIVED INCOME FROM OTHER SOURCES AND OTHER MISE. INCOME. THE APPELLANT IS RE QUIRED TO MAINTAIN ANY BOOKS OF ACCOUNT IN TERMS OF SECTION 44AA OF THE AC T. IN THE RELEVANT PREVIOUS YEAR THE APPELLANT HAD CONDUCTED NON-SYSTEMATIC TRA DES IN COMMODITIES AND THEREFORE THE INCOME DERIVED FROM SUCH TRANSACTIONS WAS OFFERED TO TAX IN HIS ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 5 RETURN OF INCOME UNDER THE HEAD ' INCOME FROM OTHER SOURCES '. THE LD. AO HAS ALSO ACCEPTED THAT SUCH INCOME WAS ASSESSABLE U NDER THE HEAD ' OTHER SOURCES ' AND ASSESSED IT ACCORDINGLY. IN THE CIRCUMSTANCES WHEN THE ASSESSEE DID NOT CARRY ON BUSINESS OR PROFESSION AN D WAS THEREFORE NOT REQUIRED TO MAINTAIN SUCH BOOKS OF ACCOUNTS, THEN H E WAS REQUIRED TO DRAW UP HIS STATEMENT OF INCOME WITH REFERENCE TO ' OTHER DOCUMENTS ' MAINTAINED BY HIM IN REGULAR COURSE. I NOTE THAT THE TRANSACTIONS WHICH YIELDED INCOME, WAS MAINTAINED IN THE DOCUMENTS & RECORDS WHICH WAS FOU ND & SEIZED BY THE INVESTIGATING OFFICER AND IT IS FROM THESE DOCUMENT S ONLY THE AO WAS ABLE TO DEDUCE THE TRUE INCOME AND EXPENDITURE OF THE ASSES SEE. IN VIEW OF THE FOREGOING I AGREE WITH THE LD. AR THAT THE DOCUMENT S WITH REFERENCE TO WHICH INCOME OF RS.3,16,37,099/- WAS ASSESSED IN THE APPE LLANT'S HANDS COULD NOT BE SAID TO BE ' INCRIMINATING ' IN NATURE. THE CASE OF THE APPELLANT FELL WITHIN IN THE SECOND LIMB I.E. ' OR OTHER DOCUMENTS ' MAINTAINED IN THE NORMAL COURSE RELATING TO THE AY 2013-14 AS STIPULATED U/S. 271AA B EXPLANATION (C) (SUPRA) WHICH DESCRIBES UNDISCLOSED INCOME FOR THE PURPOSES OF THIS SECTION. IN MY CONSIDERED VIEW THEREFORE THE INCOME OF RS.3,16,37, 099/- OFFERED BY THE APPELLANT NOT FALL IN THE AMBIT OF ' UNDISCLOSED INCOME ' AS DEFINED IN SEC. 271AAB OF THE ACT. 11. I FIND THAT THE DECISION RENDERED BY THE JURISD ICTIONAL HON'BLE ITAT, KOLKATA IN THE CASE OF DCIT VS. PRADEEP KUMAR AGARWAL IN ITA NO. 1478/KOL/2015 VIDE ITS ORDER DATED 25.05.2018 IS SQUARELY APPLICA BLE TO THE FACTS INVOLVED IN THE APPELLANT'S CASE. IN THE SAID DECISION THE HON' BLE TRIBUNAL FOLLOWED THE DECISION EARLIER RENDERED BY ITS ANOTHER COORDINATE BENCH IN THE CASE OF MANISH AGARWALA IN ITA NO. 1479/KOL/2015 FOR AY 2013-14 DATED 09.02.2018. THE RELEVANT EXTRACTS OF THE DECISION I S AS FOLLOWS: 'ACCORDING TO THE LD. AR, FROM THE FACTS AND CIRCUM STANCES DESCRIBED ABOVE, SINCE THE ASSESSEE IS NOT ENGAGED IN BUSINES S OR PROFESSION, HE DOES NOT REQUIRE TO MAINTAIN THE BOOKS OF ACCOUN T AS PER SEC. 44AA OR SEC. 44AA(2) OF THE ACT, THEREFORE, THE ASSESSEE 'S CASE FALLS IN THE SECOND LIMB I.E. ' OR OTHER DOCUMENTS ' AS STIPULATED U/S. 271AAB EXPLANATION (C) (SUPRA) WHICH DESCRIBES UNDISCLOSED INCOME FOR THE PURPOSES OF THIS SECTION WHICH IS VERY IMPORTANT TO ADJUDICATE THIS ISSUE. THEREFORE, THE QUESTION IS WHEN THE SEARCH T OOK PLACE, THE ASSESSEE'S TRANSACTIONS ( IN THIS CASE, THE SPECULATIVE TRANSACTION ) HAS BEEN FOUND TO BE RECORDED IN THE ' OTHER DOCUMENTS ' WHICH IS (RETRIEVED FROM THE ASSESSEE'S ACCOUNTANT'S DRAWER) AND BASED ON THAT THE ASSESSEE DECLARED RS. 3 CR. DURING SEARCH AND L ATER RETURNED INCOME OF RS. 3 CR. AS INCOME UNDER THE HEAD ' INCOME FROM OTHER SOURCES ' WHICH WAS ACCEPTED BY THE AO IN TOTO. WE NOTE THA T SINCE THE INCOME UNDER QUESTION (RS. 3 CR.) WAS IN FACT E NTERED IN THE ' OTHER DOCUMENTS ' MAINTAINED IN THE NORMAL COURSE RELATING TO THE A Y 2013- 14, WHICH DOCUMENT WAS RETRIEVED DURING SEARCH, HEN CE, THE AMOUNT OF RS. 3 CR. OFFERED BY THE ASSESSEE DOES NOT FALL IN THE KEN OF ' UNDISCLOSED INCOME ' DEFINED IN SEC. 271AAB OF THE ACT. SO, RS. 3 CR. WHICH WAS COMMODITY PROFIT RECORDED IN THE OTHE R DOCUMENT MAINTAINED BY THE ASSESSEE WHICH WAS RETRIEVED DURI NG SEARCH CANNOT BE TERMED AS ' UNDISCLOSED INCOME ' IN THE DEFINITION GIVEN U/S. ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 6 271AAB OF THE ACT. SINCE RS. 3 CR. CANNOT BE TERMED AS ' UNDISCLOSED INCOME ' AS PER SEC. 271AAB OF THE ACT, NO PENALTY CAN BE LEVIED AGAINST THE ASSESSEE. THEREFORE, WE UPHOLD THE ORDE R OF THE LD. CIT(A) ON THE AFORESAID REASONING RENDERED BY US.' 12. FOR THE REASONS SET OUT ABOVE I THEREFORE FIND SUFFICIENT MERIT IN THE CONTENTION OF THE LD. AR THAT THE ENTRIES WITH REFE RENCE TO SUM OF RS.3,16,37,099/- WAS FOUND IN A REGULAR DOCUMENT MA INTAINED IN NORMAL COURSE OF BUSINESS AND IN THAT VIEW OF THE MATTER T HE 'SUM OF RS.3,16,37,099/- DOES NOT COME WITHIN THE MEANING OF ' UNDISCLOSED INCOME ' AS MENTIONED IN SECTION 271AAB OF THE ACT. THE PENALTY OF RS.3,16,3 7,099/- LEVIED BY THE LD. AO U/S 271AAB IS HENCE CANCELLED. 13. SINCE I HAVE HELD THAT THE PENALTY OF RS.94,91, 130/- WAS NOT LEVIABLE UPON THE APPELLANT ON THE MERITS OF THE CASE, I DO NOT D EEM FIT TO ADJUDICATE THE OTHER ALTERNATE CONTENTIONS RAISED BY THE APPELLANT CONCERNING VALIDITY OF NOTICE ISSUED BY THE LD. AO & ETC., SINCE THESE CON TENTIONS ARE NOW OF ONLY ACADEMIC INTEREST AND HENCE NOT ADJUDICATED UPON. IN THE RESULT, THE APPEAL OF THE APPELLANT IS ' ALLOWED '. 3. WE ARE NEXT INFORMED THAT THE INSTANT ISSUE OF C ORRECTNESS OF THE IMPUGNED U/S 271AAB PENALTY(IES) IS NO MORE RES INTEGRA SINCE THIS TRIBUNALS CO-ORDINATE BENCHS DECISION TO REVENUES IDENTICAL APPEAL(S) IN ITA NO. 2280 AND 2281/KOL/2018 IN CASE OF ASSESSEES FAMILY MEMBER / WIFE SMT. TANUJA MANTRI HAS CONFIRMED THE CIT(A)S SIMILAR ACTION BY HOLDI NG THAT THERE WAS NO UNDISCLOSED INCOME AS STIPULATED U/S. 271AAB EXPLAN ATION-(C) SO AS TO INVOKE THE PENAL PROVISION AS UNDER:- 3. BOTH THE LEARNED REPRESENTATIVES INVITE OUR ATT ENTION TO CIT(A)S IDENTICAL DETAILED DISCUSSION IN THESE TWO ASSESSME NT YEAR(S) READING AS UNDER:- 05. FINDINGS & DECISION: 1. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF T HE LD.AR OF THE APPELLANT AND THE OBSERVATIONS AND FINDINGS RECORDE D BY THE LD. AO AND THE FACTUM OF THE CASE. IN THE FACTS INVOLVED I N THE PRESENT CASE, SEARCH ACTION U/S 132 WAS CONDUCTED ON 11.04.2013. IN THE COURSE OF SEARCH, CERTAIN LOOSE PAPERS & DOCUMENTS WERE SEIZE D WHICH INTER ALIA CONTAINED THE DETAILS OF COMMODITY DEALINGS BY THE APPELLANT. WITH REFERENCE TO THESE LOOSE DOCUMENTS, THE APPELLANT A DMITTED BEFORE THE INVESTIGATING AUTHORITIES THAT THEY REPRESENTED HIS INCOME AGGREGATING TO RS.1,99,54,112/- FOR THE RELEVANT PREVIOUS YEAR AND THEREFORE OFFERED THE SAME TO TAX IN THE RELEVANT AY 2013-14. IN CONS ONANCE WITH HIS STATEMENT SO RECORDED U/S 132(4), THE APPELLANT DIS CLOSED THE INCOME DERIVED FROM THESE TRANSACTIONS UNDER THE HEAD ' INCOME FROM OTHER SOURCES ' IN THE RETURN OF INCOME FILED FOR THE RELEVANT AY 2013-14. THE LD. AO WHO FRAMED THE ASSESSMENT U/S 143(3) ASSESSE D THE INCOME OF ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 7 THE APPELLANT AS RETURNED BY HIM. THE LD. AO HOWEVE R INITIATED PENALTY PROCEEDINGS U/S 271AAB OF THE ACT WITH REFERENCE TO SUCH INCOME. BEFORE THE LD. AO THE APPELLANT ARGUED THAT THE PEN ALTY U/S 271AAB WAS NOT APPLICABLE SINCE THE INCOME OF RS.1,99,54,1 12/- DID NOT REPRESENT HIS ' UNDISCLOSED INCOME ' WITHIN THE MEANING PRESCRIBED IN EXPLANATION (C) TO SECTION 271AAB OF THE ACT. THE L D. AO WAS HOWEVER NOT AGREEABLE TO THE CONTENTION PUT FORTH B Y THE APPELLANT AND HELD THAT THE APPELLANT'S CASE SQUARELY FELL WITHIN THE AMBIT OF SECTION 271AAB OF THE ACT. ACCORDING TO LD. AO SINCE THE AP PELLANT FAILED TO SUBSTANTIATE THE MANNER IN WHICH THE INCOME WAS DER IVED BY HIM, HE LEVIED PENALTY @ 30% ON THE UNDISCLOSED INCOME OF R S.1,99,54,112/- UNDER CLAUSE (C) OF SECTION 271AAB OF THE ACT. 2. IN THE APPELLATE PROCEEDINGS, THE LD. AR OF THE APPELLANT ASSAILED THE IMPUGNED ORDER OF THE LD. AO ON SEVERAL GROUNDS . IT WAS SUBMITTED THAT THE LOOSE DOCUMENTS ETC. FOUND & SEIZED IN THE COURSE OF SEARCH CONSTITUTED ' OTHER DOCUMENTS ' MAINTAINED THE NORMAL COURSE OF BUSINESS AND HENCE THE ENTRIES CONTAINED THEREIN DI D NOT REPRESENT HIS 'UNDISCLOSED INCOME'. IT WAS FURTHER SUBMITTED THAT NO ASSET, JEWELLERY, MONEY, BULLION OR ANY OTHER VALUABLE ASSET WAS FOUN D CORRESPONDING TO SUCH INCOME WHICH FURTHER FORTIFIED THAT SUCH INCOM E DID NOT REPRESENT THE APPELLANT'S UNDISCLOSED INCOME. THE LD. AR FURT HER OBJECTED TO THE VALIDITY OF THE PENALTY PROCEEDINGS SINCE ACCORDING TO HIM THE LD. AO DID NOT GIVE PROPER NOTICE IN THE MANNER PRESCRIBED . THE LD. AR FURTHER SUBMITTED IN THE ALTERNATE THAT THE PENALTY, IF ANY , LEVIABLE, OUGHT TO HAVE BEEN LEVIED UNDER CLAUSE (A) I.E. @ 10% INSTEA D OF CLAUSE (C) I.E. 30% AS LEVIED BY THE LD. AO. 3. AFTER GIVING A THOUGHTFUL CONSIDERATION TO THE F ACTS INVOLVED IN THE PRESENT CASE, I FIND FORCE IN THE SUBMISSIONS' OF T HE APPELLANT. THE PRIMARY CONTENTION OF THE APPELLANT IS THAT THE INC OME OF RS.1,99,54,112/- ASSESSED BY WAY OF PROFIT DERIVED FROM COMMODITY DEALINGS DID NOT CONSTITUTE ' UNDISCLOSED INCOME ' DEFINED IN EXPLANATION (C) TO SECTION 271AAB OF THE ACT. IN TH IS REGARD IT WOULD THEREFORE BE RELEVANT TO EXAMINE THE TERM ' UNDISCLOSED INCOME ' AS DEFINED IN EXPLANATION (C) TO SECTION 271AAB OF THE ACT, WHICH READS AS FOLLOWS: 'EXPLANATION : FOR THE PURPOSES OF THIS SECTION (C) ' UNDISCLOSED INCOME ' MEANS- (I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRE SENTED, 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 SEAR CH IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PREVIOUS YEAR; O R ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 8 (B) OTHERWISE NOT BEEN DISCLOSED TO THE PRINCIPAL C HIEF COMMISSIONER OR} CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER BEFORE THE DATE OF SEARCH; OR (II) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPR ESENTED, EITHER WHOLLY OR PARTLY, BY ANY ENTRY IN RESPECT OF AN EXP ENSE RECORDED IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAIN ED IN THE NORMAL COURSE RELATING TO THE SPECIFIED PREVIOUS YE AR WHICH IS FOUND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED.] 4. FROM THE ABOVE DEFINITION IT SHALL BE NOTED THAT THE LEGISLATURE HAS ASSIGNED SPECIFIC MEANING TO THE TERM ' UNDISCLOSED INCOME '. THE SAID MEANING IS NOT BORROWED FROM SECTION 58 TO 59D OF THE ACT BUT THE TERM HAS BEEN SPECIFICALLY DEFINED FOR THE PURPOSES OF LEVY OF PENALTY SECTION 271AAB OF THE ACT. 5. THE TWO SUB-CLAUSES (I) & (II) CONTAINED IN CLAU SE (C) OF EXPLANATION 271AAB WHICH DEFINE ' UNDISCLOSED INCOME ' CAN BE FURTHER BROKEN TWO PARTS; SUB-CLAUSE (II) OF CLAUSE (C) OF SECTION 271 AAB WHICH DEFINES ' UNDISCLOSED INCOME ' CAN BE BIFURCATED AS FOLLOWS: A) ANY INCOME REPRESENTED BY ANY ENTRY IN RESPECT O F AN EXPENSE RECORDED IN THE BOOKS OF ACCOUNT WHICH IS F OUND TO BE FALSE, OR B) ANY OTHER DOCUMENTS MAINTAINED IN THE NORMAL COU RSE WHICH IS FOUND TO BE FALSE; 6. UNDENIABLY THE APPELLANT'S CASE IS NOT COVERED BY THE ABOVE TWO LIMBS. NEITHER DOES THE SUM OF RS.1,99,54,112/- REP RESENTS ANY ENTRY IN RESPECT OF EXPENSE WHICH IS FOUND TO BE FALSE NO R HAS THIS SUM BEEN ASSESSED WITH REFERENCE TO ANY DOCUMENT WHICH IS OT HERWISE FOUND TO BE FALSE. 7. I FURTHER NOTED THAT SUB-CLAUSE (I) OF CLAUSE (C ) OF EXPLANATION 1 TO SECTION 271AAB, ALSO HAS TWO LIMBS, WHICH ARE AS FO LLOWS: A) ANY INCOME REPRESENTED BY MONEY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING; OR B) ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS FOUND IN THE COURSE OF A SEARCH, SHALL BE TREATED ' UNDISCLOSED INCOME ' IF IT WAS NOT FOUND RECORDED ON OR BEFORE THE DATE OF SEARCH IN THE BOOKS OF ACCOUN T ' OR ' OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PREVIOUS YEAR . 8. IN THE FACTS INVOLVED IN THE PRESENT CASE, IT IS EVIDENT THAT THE SUM OF RS.1,99,54,112/- ASSESSED AS APPELLANT'S INCOME FOR THE RELEVANT YEAR ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 9 DID NOT REPRESENT ANY ' UNEXPLAINED MONEY, BULLION, JEWELLERY, VALUABLE ARTICLE OR ANY OTHER ASSET ', FOR THE SIMPLE REASON THAT NO SUCH ASSET HAD BEEN IDENTIFIED EITHER BY THE LD.AO AND NO UNDISCLOSED ASSET CAME TO LIGHT AS A RESULT OF THE SEARCH CONDU CTED BY THE INVESTIGATION AUTHORITIES. ACCORDINGLY THE FIRST LI MB I.E. (A), IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 9. THE NEXT LIMB OF SECTION 271AAB DEFINES ' UNDISCLOSED INCOME ' AS, ANY ENTRIES FOUND IN THE BOOKS OF ACCOUNTS OR A NY DOCUMENTS SEIZED IN THE COURSE OF SEARCH WHICH WAS EITHER NOT RECORDED IN THE (I) REGULAR BOOKS ON OR BEFORE THE DATE OF SEARCH, ' OR ' (II) IN THE DOCUMENTS MAINTAINED IN NORMAL COURSE OF BUSINESS. IN THIS RE GARD ONE WOULD NOW NEED TO UNDERSTAND AND EXAMINE THE MEANING OF THE P HASE ' DOCUMENTS MAINTAINED IN NORMAL COURSE OF BUSINESS '. WHEN ANY SEARCH OPERATIONS ARE CONDUCTED AT THE PREMISES OF ANY APPELLANT, IT IS POSSIBLE THAT ALL TRANSACTION CARRIED OUT BY THE AS SESSEE PRIOR TO THE COMMENCEMENT OF SEARCH MAY NOT NECESSARILY BE FOUND RECORDED IN THE BOOKS TO THE VERY TIME & DATE OF SEARCH. IT IS VERY COMMON FOR ASSESSEES TO RECORD AND UPDATE THEIR BOOKS OF ACCOU NT AT PERIODIC INTERVALS, WHICH MAY BE WEEKLY, BI-WEEKLY, MONTHLY, QUARTERLY ETC. FOR INSTANCE THE CASH-BOOK OF AN ASSESSEE IS GENERALLY MAINTAINED AN DAY- TO- DAY BASIS. HOWEVER PURCHASES & SALES MADE IN TH E REGULAR COURSE OF BUSINESS; ARE GENERALLY NOT RECORDED ON THE VERY DATE OF RECEIPT OR DISPATCH OF GODS BUT ON WEEKLY/MONTHLY BASIS, DEPEN DING UPON THE VOLUME. FURTHER ENTRIES WITH REGARD TO DEPRECIATION , INTEREST PROVISIONS, VALUATION OF CLOSING STOCK ETC. ARE GENERALLY PASSE D AT THE END OF THE FINANCIAL YEAR AND THESE ENTRIES MAY NOT BE FOUND I N THE BOOKS ON THE DATE OF SEARCH. SIMILARLY WHERE INCOME ARE DERIVED FROM SOURCES OTHER THAN ' BUSINESS ' OR THE ASSESSEE'S REGULAR SOURCES ', SUCH TRANSACTIONS & INCOME/LOSS DERIVED THEREFROM ARE GENERALLY ACCOU NTED AT THE YEAR- END OR AT THE TIME OF FINALIZATION OF ACCOUNTS / RE TURN OF INCOME. FOR THE REASONS SET OUT IN THE FOREGOING IT IS VERY MUCH PO SSIBLE THAT CERTAIN REGULAR BUSINESS DOCUMENTS WHICH ARE AVAILABLE WITH THE ASSESSEE ON A PARTICULAR DATE MAY NOT BE RECORDED ON THE SAME D ATE BUT IS INCORPORATED IN THE REGULAR BOOKS AT A FUTURE DATE; BUT IN DUE COURSE. KEEPING IN VIEW THE FOREGOING PRACTICALITY OF THE M ATTER, THE LEGISLATURE THEREFORE CAREFULLY WORDED THE MEANING OF THE TERM ' UNDISCLOSED INCOME ' AND INCLUDED ONLY THOSE ENTRIES WHICH ARE EITHER NOT FOUND IN THE BOOKS OF ACCOUNTS OR THE REGULAR BUSINESS DOCUM ENTS MAINTAINED IN NORMAL COURSE OF BUSINESS. 10. IN THE FACTS OF THE PRESENT CASE THE INVESTIGAT ING OFFICERS HAD FOUND LOOSE DOCUMENTS, WHICH CONTAINED ENTRIES WITH REGAR D TO THE COMMODITY DEALINGS OF THE APPELLANT. THE APPELLANT IS AN INDIVIDUAL, WHO DERIVED INCOME FROM OTHER SOURCES AND OTHER MIS E. INCOME. THE APPELLANT IS REQUIRED TO MAINTAIN ANY BOOKS OF ACCO UNT IN TERMS OF SECTION 44AA OF THE ACT. IN THE RELEVANT PREVIOUS Y EAR THE APPELLANT HAD CONDUCTED NON-SYSTEMATIC TRADES IN COMMODITIES AND THEREFORE THE INCOME DERIVED FROM SUCH TRANSACTIONS WAS OFFERED T O TAX IN HIS RETURN OF INCOME UNDER THE HEAD ' INCOME FROM OTHER SOURCES '. THE LD. AO ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 10 HAS ALSO ACCEPTED THAT SUCH INCOME WAS ASSESSABLE U NDER THE HEAD ' OTHER SOURCES ' AND ASSESSED IT ACCORDINGLY. IN THE CIRCUMSTANCES WHEN THE ASSESSEE DID NOT CARRY ON BUSINESS OR PROF ESSION AND WAS THEREFORE NOT REQUIRED TO MAINTAIN SUCH BOOKS OF AC COUNTS, THEN HE WAS REQUIRED TO DRAW UP HIS STATEMENT OF INCOME WITH RE FERENCE TO ' OTHER DOCUMENTS ' MAINTAINED BY HIM IN REGULAR COURSE. I NOTE THAT THE TRANSACTIONS WHICH YIELDED INCOME, WAS MAINTAINED I N THE DOCUMENTS & RECORDS WHICH WAS FOUND & SEIZED BY THE INVESTIGATI NG OFFICER AND IT IS FROM THESE DOCUMENTS ONLY THE AO WAS ABLE TO DEDUCE THE TRUE INCOME AND EXPENDITURE OF THE ASSESSEE. IN VIEW OF THE FOR EGOING I AGREE WITH THE LD. AR THAT THE DOCUMENTS WITH REFERENCE TO WHI CH INCOME OF RS.1,99,54,112/- WAS ASSESSED IN THE APPELLANT'S HA NDS COULD NOT BE SAID TO BE ' INCRIMINATING ' IN NATURE. THE CASE OF THE APPELLANT FELL WITHIN IN THE SECOND LIMB I.E. ' OR OTHER DOCUMENTS ' MAINTAINED IN THE NORMAL COURSE RELATING TO THE AY 2013-14 AS STIPULA TED U/S. 271AAB EXPLANATION (C) (SUPRA) WHICH DESCRIBES UNDISCLOSED INCOME FOR THE PURPOSES OF THIS SECTION. IN MY CONSIDERED VIEW THE REFORE THE INCOME OF RS.1,99,54,112/- OFFERED BY THE APPELLANT NOT FALL IN THE AMBIT OF ' UNDISCLOSED INCOME ' AS DEFINED IN SEC. 271AAB OF THE ACT. 11. I FIND THAT THE DECISION RENDERED BY THE JURISD ICTIONAL HON'BLE ITAT, KOLKATA IN THE CASE OF DCIT VS. PRADEEP KUMAR AGARW AL IN ITA NO. 1478/KOL/2015 VIDE ITS ORDER DATED 25.05.2018 IS SQUARELY APPLIC ABLE TO THE FACTS INVOLVED IN THE APPELLANT'S CASE. IN T HE SAID DECISION THE HON'BLE TRIBUNAL FOLLOWED THE DECISION EARLIER REND ERED BY ITS ANOTHER COORDINATE BENCH IN THE CASE OF MANISH AGARWALA IN ITA NO. 1479/KOL/2015 FOR AY 2013-14 DATED 09.02.2018. THE RELEVANT EXTR ACTS OF THE DECISION IS AS FOLLOWS: 'ACCORDING TO THE LD. AR, FROM THE FACTS AND CIRCUM STANCES DESCRIBED ABOVE, SINCE THE ASSESSEE IS NOT ENGAGED IN BUSINESS OR PROFESSION, HE DOES NOT REQUIRE TO MAINTAIN THE BOOKS OF ACCOUNT AS PER SEC. 44AA OR SEC. 44AA(2) OF THE ACT , THEREFORE, THE ASSESSEE'S CASE FALLS IN THE SECOND LIMB I.E. ' OR OTHER DOCUMENTS ' AS STIPULATED U/S. 271AAB EXPLANATION (C) (SUPRA) WHICH DESCRIBES UNDISCLOSED INCOME FOR THE PURPOSES OF THIS SECTION WHICH IS VERY IMPORTANT TO ADJUDICATE THIS ISSUE. THEREFORE, THE QUESTION IS WHEN THE SEARCH TOOK PLA CE, THE ASSESSEE'S TRANSACTIONS ( IN THIS CASE, THE SPECULATIVE TRANSACTION ) HAS BEEN FOUND TO BE RECORDED IN THE ' OTHER DOCUMENTS ' WHICH IS (RETRIEVED FROM THE ASSESSEE'S ACCOUNTANT'S DRAWER) AND BASED ON THAT THE ASSESSEE DECLARED RS. 3 CR. DURING SEARCH AND LATER RETURNED INCOME O F RS. 3 CR. AS INCOME UNDER THE HEAD ' INCOME FROM OTHER SOURCES ' WHICH WAS ACCEPTED BY THE AO IN TOTO. WE NOTE THAT SINCE THE INCOME UNDER QUESTION (RS. 3 CR.) WAS IN FACT ENTERED IN T HE ' OTHER DOCUMENTS ' MAINTAINED IN THE NORMAL COURSE RELATING TO THE A Y 2013-14, WHICH DOCUMENT WAS RETRIEVED DURING SEARCH , HENCE, THE AMOUNT OF RS. 3 CR. OFFERED BY THE ASSESSEE DOE S NOT FALL IN THE KEN OF ' UNDISCLOSED INCOME ' DEFINED IN SEC. 271AAB OF THE ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 11 ACT. SO, RS. 3 CR. WHICH WAS COMMODITY PROFIT RECOR DED IN THE OTHER DOCUMENT MAINTAINED BY THE ASSESSEE WHICH WAS RETRIEVED DURING SEARCH CANNOT BE TERMED AS ' UNDISCLOSED INCOME ' IN THE DEFINITION GIVEN U/S. 271AAB OF THE ACT. S INCE RS. 3 CR. CANNOT BE TERMED AS ' UNDISCLOSED INCOME ' AS PER SEC. 271AAB OF THE ACT, NO PENALTY CAN BE LEVIED AG AINST THE ASSESSEE. THEREFORE, WE UPHOLD THE ORDER OF THE LD. CIT(A) ON THE AFORESAID REASONING RENDERED BY US.' 12. FOR THE REASONS SET OUT ABOVE I THEREFORE FIND SUFFICIENT MERIT IN THE CONTENTION OF THE LD. AR THAT THE ENTRIES WITH REFE RENCE TO SUM OF RS.1,99,54,112/- WAS FOUND IN A REGULAR DOCUMENT MA INTAINED IN NORMAL COURSE OF BUSINESS AND IN THAT VIEW OF THE M ATTER THE 'SUM OF RS.L,99,54,L12/- DOES NOT COME WITHIN THE MEANING O F ' UNDISCLOSED INCOME ' AS MENTIONED IN SECTION 271AAB OF THE ACT. THE PE NALTY OF RS.59,86,234/- LEVIED BY THE LD. AO U/S 271AAB IS H ENCE CANCELLED. 13. SINCE I HAVE HELD THAT THE PENALTY OF RS.59,86, 234/- WAS NOT LEVIABLE UPON THE APPELLANT ON THE MERITS OF THE CA SE, I DO NOT DEEM FIT TO ADJUDICATE THE OTHER ALTERNATE CONTENTIONS RAISE D BY THE APPELLANT CONCERNING VALIDITY OF NOTICE ISSUED BY THE LD. AO & ETC., SINCE THESE CONTENTIONS ARE NOW OF ONLY ACADEMIC INTEREST AND H ENCE NOT ADJUDICATED UPON. IN THE RESULT, THE APPEAL OF THE APPELLANT IS ' ALLOWED '. 4. MR. SINGH REITERATES THE REVENUES PLEADINGS THA T THE ASSESSING OFFICER HAD RIGHTLY IMPOSED THE IMPUGNED PENALT(IES ) IN ASSESSEES CASES ON THE GROUND THAT ITS CORRESPONDING UNDISCLO SED INCOME(S) OF 1,99,54,112/-1,90,01,215/- ADMITTED DURING THE COUR SE OF SEARCH ON 12.04.2013 DID NOT SPECIFY THE MANNER OF HAVING DER IVED THE SAME FOLLOWED BY SUBSTANTIVE THEREOF AND THEREFORE, THE SAME DESERVES TO BE RESTORED. THE ASSESSEES CASE ON THE OTHER HAND IS THAT SINCE THE IMPUGNED AMOUNT OF INCOME STOOD ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES THAN INCOME FROM COMMODITIES SPECULATION BUSINESS IS NOT COVERED UNDER THE STATUTORY DEFINIT ION OF UNDISCLOSED INCOME IN EXPLANATION (C) TO SEC. 271AAB OF THE ACT, THE CIT(A) HAS RIGHTLY DELETED THE IMPUGNED PENALT(IES). 5. WE PROCEED IN THIS BACKDROP AND NOTICE THAT THE CIT(A)S DETAILED DISCUSSION HAS HELD THAT THE ASSESSEES ADMISSION O F INCOME(S) IS NOT COVERED IN EITHER CLAUSES (I) & (II) INCLUDING THE (A) AND (B) UNDER THE FORMER ONE OF SEC. 271AAB. THERE IS NO REBUTTAL COM ING FROM THE REVENUE SIDE TO THE CIT(A)S CLINCHING FINDING OF F ACT THAT THE ASSESSEES INCOME IN BOTH THE ASSESSMENT YEAR(S) FO RMING SUBJECT- MATTER OF THE INSTANT LIS HAD BEEN DULY RECORDED IN ITS BOOKS OF ACCOUNT MAINTAINED IN NORMAL COURSE OF BUSINESS. THAT BEING THE CASE, WE HOLD THAT THE ASSESSING OFFICERS PENAL ACTION FAILS TO SATISFY THE THRESHOLD ITA NOS.2284-2285/KOL/2018 A.YS.13-1 4 & 14-15 ACIT, CC-34(3), KOL. VS. D.K.MANTRI PAGE 12 BARRIER OF UNDISCLOSED INCOME ITSELF. THE CIT(A)S APPEAL HAS RIGHTLY PROCEEDED TO DELETE THE IMPUGNED PENALT(IES) IN BOT H THE ASSESSMENT YEAR(S) THEREFORE. THE REVENUES IDENTICAL SOLE GRI EVANCES RAISED IN THE INSTANT LIS FAILS ACCORDINGLY. LEARNED DEPARTMENTAL REPRESENTATIVE IS FAIR ENOUGH IN NOT PIN-POINTING ANY DISTINCTION ON FACTS OR LAW IN THESE TWO ASSESSEES CASES. WE THEREFORE ADOPT THE LEARNED CO-ORDINATE BENCHS DETAILED REASONING MUTATIS MUTANDIS, MORE SO, WHEN THE REVENUE HAS FAILED TO EXPLAIN ANY UNDI SCLOSED INCOME AS PER THE STATUTORY DEFINITION AND AFFIRM THE CIT(A)S FI NDINGS DELETING THE IMPUGNED PENALTY(IES). REVENUE FAILS IN ITS SOLE SUBSTANTIVE GRIEVANCE IN BOTH CASES. 4. THE REVENUES TWO APPEAL(S) ITA NO.2284 & 2285/K OL/2019 ARE DISMISSED. A COPY OF THE INSTANT COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES . ORDER PRONOUNCED IN THE OPEN COURT 22 /01/2020 SD/- SD/- ( ) () ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP SR.P.S *- 22/01 /20 20 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SRI DEVENDRA KR. MANTRI, 7, B.B. GANGULY STREET, KOLKATA-700012 2. /REVENUE-ACIT,CC-4(3), AAYKAR BHAWAN POORVA 5 TH FLOOR, ROOM NO.510, 110, SHANTI PALLY , KOLKATA-107 3. 5 6 / CONCERNED CIT KOLKATA 4. 6- / CIT (A) KOLKATA 5. 9 ))5, 5, / DR, ITAT, KOLKATA 6. > / GUARD FILE. BY ORDER/ , /TRUE COPY/ 5,