D.C.B.Ashok Kumar, Sivakasi V. DCIT Corporate Circle 1(2), CHENNAI

ITA 2381/CHNY/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6040 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 20-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C VATSALA
• Assessee Lawyers: S SRIDHAR
• Keywords: Business income; Search and seizure
• Section: 271(1)(c); 133A; 153A; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI . . . , ! ' # , $ #% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.816/CHNY/2013 & '& /ASSESSMENT YEAR: 2008-09 SHRI P.K. DURAISAMY, 72, MUDALI THOTTAM, VEERAPPANCHATRAM, ERODE 638 004. VS. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II, COIMBATORE. [PAN: ACRPD 1392F] ( () /APPELLANT) ( *+() /RESPONDENT) () , - / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE *+() , - /RESPONDENT BY : SMT. C. VATSALA, CIT . , /$ /DATE OF HEARING : 09.01.2019 01' , /$ / DATE OF PRONOUNCEMENT : 30.01.2019 / O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED A GAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, COI MBATORE (CIT(A) FOR SHORT) DATED 06.03.2013 FOR THE ASSESSMENT YEAR (AY ) 2008-09 CONFIRMING THE PENALTY LEVIED U/S. 271AAA OF THE IN COME TAX ACT, 1961 (FOR SHORT THE ACT). ITA NO.816/CHNY/2013 (AY: 2008-09) SHRI P.K. DURAISAMY :- 2 -: 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APP EAL: 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (AP PEALS) II, COIMBATORE DATED 6-3-2013 IN L.T.A.NO.59/10-11 FOR THE ABOVE MENTIONED ASSESSMENT YEAR IS CONTRARY TO LAW, FACTS , AND IN THE CIRCUMSTANCES OF THE CASE. 2. THE CIT (APPEALS) ERRED IN CONFIRMING THE LEVY O F PENALTY U/S 271 AAA OF THE ACT WITH REFERENCE TO THE FACTS OF THE PRESE NT CASE WITHOUT ASSIGNING PROPER REASONS AND JUSTIFICATION. 3. THE CIT (APPEALS) FAILED TO APPRECIATE THAT THE PROVISIONS OF SECTION 271 AAA OF THE ACT HAD NO APPLICATION TO THE FACTS OF THE CASE INASMUCH AS OUGHT TO HAVE APPRECIATED THAT THE CONDITIONS PR ESCRIBED THEREIN WERE NOT SATISFIED CUMULATIVELY TO JUSTIFY SUCH LEVY OF PENALTY. 4. THE CIT (APPEALS) FAILED TO APPRECIATE THAT HAVI NG ACCEPTED THE PROVISIONS IN SECTION 271 AAA OF THE ACT WERE PAN M ATENIA TO THE PROVISIONS IN SECTION 271(1)(C) OF THE ACT, THE LEV Y OF PENALTY ON THE REJECTION OF EXPLANATION AS WELL AS ON THE WRONG PR ESUMPTION OF FACTS WAS ERRONEOUS AND INVALID. 5. THE CIT (APPEALS) FAILED TO APPRECIATE THAT THE BASIS OF ADDITIONAL INCOME EARNED AND OFFERED EVEN THOUGH EXPLAINED REP EATEDLY WAS CONSIDERED ERRONEOUSLY AS INADEQUATE ON THE FACTUAL MATRIX OF THE CASE. 6. THE CIT (APPEALS) WENT WRONG IN RECORDING THE FI NDINGS IN THIS REGARD IN PARAS 7.0 TO 11.0 OF THE IMPUGNED ORDER WITHOUT ASSIGNING PROPER REASONS AND JUSTIFICATION. 7. THE CIT(APPEALS) FAILED TO APPRECIATE THAT SUB-S ECTION (2) TO THE MAIN PROVISION IN SECTION 271 AAA OF THE ACT WAS WRONGLY INTERPRETED AND UNDERSTOOD AND OUGHT TO HAVE APPRECIATED THAT THE E XCEPTION TO THE LEVY OF PENALTY AS ENVISAGED THEREIN WOULD BE APPLICABLE TO THE FACTS OF THE PRESENT CASE. 8. THE CIT (APPEALS) FAILED TO APPRECIATE THAT THE ORDER OF PENALTY UNDER CONSIDERATION WAS PASSED OUT OF TIME, INVALID, PASS ED WITHOUT JURISDICTION AND NOT SUSTAINABLE BOTH ON FACTS AND IN LAW. 9. THE CIT (APPEALS) FAILED TO APPRECIATE THAT THE DETAILED WRITTEN SUBMISSIONS FILED BEFORE HIM WAS NOT TAKEN INTO ACC OUNT AND OUGHT TO HAVE APPRECIATED THAT NON CONSIDERATION OF THE CRUC IAL FACTS AND LEGAL POSITION EMERGING IN RELATION THERETO FORMING PART OF THE SAID WRITTEN SUBMISSIONS WOULD VITIATE HIS ACTION IN SUSTAINING THE LEVY OF PENALTY. 10. THE CIT (APPEALS) FAILED TO APPRECIATE THAT THE RE WAS NO PROPER OPPORTUNITY GIVEN BEFORE PASSING THE IMPUGNED ORDER AND ANY ORDER PASSED IN VIOLATION OF THE PRINCIPLES OF NATURAL JU STICE IS NULLITY IN LAW. ITA NO.816/CHNY/2013 (AY: 2008-09) SHRI P.K. DURAISAMY :- 3 -: 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE ASSESSEE IS AN INDIVIDUAL AND CARRYING ON THE BUSINESS OF DEALING IN MILK PRODUCTS AS A PROPRIETOR OF BALU D AIRY FARM. THERE WAS A SEARCH AND SEIZURE OPERATION UNDER THE PROVISIONS OF S. 132 OF THE ACT IN THE RESIDENT PREMISES OF THE ASSESSEE ON 13.03.2 008. DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS, CERTAIN IN CRIMINATING DOCUMENTS AND MATERIALS WERE FOUND AND SEIZED BY THE DEPARTME NT. THEREFORE, NOTICE U/S. 153A OF THE ACT WAS ISSUED TO THE ASSES SEE, IN RESPONSE TO WHICH THE ASSESSEE FILED THE RETURN FOR THE AY 2008 -09 ADMITTING INCOME OF 3,06,36,630/-. AGAINST THE SAID RETURN OF INCOME, ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER (AO) AFTER MAKIN G ADDITION OF ONLY 15,000/- VIDE ORDER DATED 31.12.2009 PASSED U/S. 14 3(3) OF THE ACT, THE AO ALSO INITIATED THE PENALTY PROCEEDINGS U/S. 271A AA OF THE ACT AND ISSUED SHOW CAUSE NOTICE, IN RESPONSE TO WHICH IT W AS SUBMITTED BY THE ASSESSEE THAT SINCE THE UNDISCLOSED INCOME HAD BEEN ADMITTED IN THE STATEMENT GIVEN U/S. 132(4) OF THE ACT DURING THE C OURSE OF SEARCH AND SEIZURE PROCEEDINGS AND THE TAX DUE THEREON HAS BEE N PAID IN INSTALLMENT NO PENALTY CAN BE LEVIED UNDER THE PROV ISIONS OF S. 271AAA OF THE ACT. HOWEVER, THE AO HAD REJECTED THE ABOVE EX PLANATION AND LEVIED PENALTY OF 30,65,163/- BY HOLDING THAT THE ASSESSEE HAD FAILE D TO ITA NO.816/CHNY/2013 (AY: 2008-09) SHRI P.K. DURAISAMY :- 4 -: SUBSTANTIATE THE MANNER IN WHICH UNDISCLOSED INCOME WAS DERIVED AND HAD NOT PAID THE TAX DUE THEREON VIDE ORDER DATED 3 0.06.2010. 4. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE LD. CIT(A), WHO VIDE IMPUGNED ORDER HAD CONFIRMED THE LEVY OF PENAL TY AS THE ASSESSEE HAD NOT COMPLIED WITH THE PROVISIONS OF SUB S. (2) TO S. 271AAA OF THE ACT. BEING AGGRIEVED, THE ASSESSEE IS BEFORE US IN THE PRESENT APPEAL. 5. BEFORE US ALSO, THE LD. COUNSEL VEHEMENTLY ARGUE D THAT NO PENALTY CAN BE LEVIED AS THE ASSESSEE HAD DISCLOSED UNDISCL OSED INCOME VOLUNTARILY AND FURTHER IT IS SUBMITTED THAT IN THE SHOW CAUSE NOTICE ISSUED BY THE AO, HAD NOT STRIKE OFF THE COLUMN UNDER WHIC H LIMB OF SECTION OF PENALTY WAS BEING LEVIED AND PLACED RELIANCE ON THE DECISION OF KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY [2013] 359 ITR 565 (KAR.) AND ALSO THE DECISION OF HONBLE HIGH COURT OF MADRAS IN THE CASE OF CIT VS. ORIGINAL KERALA JEWELLERS IN TAX CASE (APPEALS) NO.717 OF 2018 DATE D 18.12.2018 (MAD) , WHEREIN THE RATIO OF THE DECISION OF HONBLE HIGH COURT OF KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) WAS FOLLOWED. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE CONDITIONS MENTIONED IN SUB S. (2) OF S. 2 71AAA OF THE ACT WERE ITA NO.816/CHNY/2013 (AY: 2008-09) SHRI P.K. DURAISAMY :- 5 -: NOT MET AND THEREFORE, THE LEVY OF PENALTY U/S. 271 AAA OF THE ACT IS JUSTIFIED. 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. THE SOLITARY ISSUE IN THE PRESENT APPEAL IS WHETHER THE LEVY OF PENALTY U/S. 271AAA OF THE ACT WAS JUSTIFIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. ADMITTEDLY, THE ASSESSEE DISCLOSED HIS UNDISCLOSED INCOME IN THE RETURN OF INCOME FILED PU RSUANT TO NOTICE ISSUED U/S. 153A OF THE ACT. THIS INCOME WAS BROUG HT TO TAX BY THE AO, AFTER MAKING REASONABLE ADDITION OF 15,000/-. THE PROVISION OF S. 271AAA OF THE ACT PROVIDES THAT THE ASSESSEE SHALL PAY PENALTY IN ADDITION TO THE TAX PAYABLE BY HIM @ 10% OF THE UND ISCLOSED INCOME AND AN EXCEPTION TO THIS RULING PROVIDED IN CASE THE AS SESSEE ADMITS THE UNDISCLOSED INCOME IN THE STATEMENT RECORDED UNDER THE PROVISION OF SUB S. (4) OF S. 132 DURING THE COURSE OF SEARCH AND SE IZURE PROCEEDINGS AND ALSO SPECIFIES AND SUBSTANCE THE MANNER IN WHICH SU CH INCOME HAS BEEN DERIVED AND THE TAX IS TOGETHER INTEREST ON THE UND ISCLOSED INCOME IS PAID. IN THE PRESENT CASE, NO DOUBT THE ASSESSEE HA S ADMITTEDLY UNDISCLOSED INCOME BUT THERE IS NOTHING SHOWN TO US THAT THE ASSESSEE ALSO DISCHARGED THE ONUS OF SPECIFYING THE MANNER I N WHICH THE INCOME HAS BEEN DERIVED AND ALSO SUBSTANTIATE THE MANNER I N WHICH THE UNDISCLOSED INCOME WAS DERIVED. IT IS NOT EVEN THE CASE OF THE APPELLANT ITA NO.816/CHNY/2013 (AY: 2008-09) SHRI P.K. DURAISAMY :- 6 -: THAT HE DISCHARGED THIS ONUS LYING UPON HIM. THE C ONDITIONS IMPOSED UNDER SUB S. (2) OF THE S. 271AAA OF THE ACT ARE MA NDATORY IN NATURE AND FAILURE TO MEET THIS CONDITION SHALL AUTOMATICALLY ATTRACT THE LEVY OF PENALTY. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT IN NON STRIKING OFF RELEVANT COLUMN IN THE SHOW CAUSE NOTI CE WOULD RENDER PENALTY PROCEEDINGS LAID CANNOT BE ACCEPTED, IN AS MUCH AS, THE PROVISIONS OF S. 271AAA OF THE ACT AND S. 271C OF T HE ACT STAND ON DIFFERENT FOOTINGS. FURTHER, THE CONSIDERATION UND ER THE PROVISIONS OF S. 271AAA OF THE ACT HAD COME UP BEFORE HONBLE HIGH C OURT OF DELHI IN THE CASE OF PCIT VS. SMT. RITU SINGAL 92 TAXMANN.COM 224 (DEL.) , WHEREIN IT WAS HELD AS FOLLOWS: 12. LIKE IN THAT CASE, THE FIRST CONDITION UNDER S ECTION 271AAA IS THAT THE ASSESSEE MUST MAKE A STATEMENT UNDER SECTION 132(4) IN THE COURSE OF SEARCH STATING THAT THE UNACCOUNTED ASSETS AND INCR IMINATING DOCUMENTS FOUND FROM HIS POSSESSION DURING THE SEARCH HAVE BE EN ACQUIRED OUT OF HIS INCOME, WHICH HAS NOT BEEN DISCLOSED IN THE RET URN OF INCOME TO BE FURNISHED BEFORE EXPIRY OF TIME SPECIFIED IN SECTIO N 139(1). THE SECOND CONDITION FOR AVAILING OF THE IMMUNITY FROM PENALTY UNDER SECTION 271(1)(C) IS THAT THE ASSESSEE SHOULD SPECIFY, IN H IS STATEMENT UNDER SECTION 132(4), THE MANNER IN WHICH SUCH INCOME STO OD DERIVED. THE REVENUE CONTENDED GEBILAL KANHAILAL THAT THOUGH THE SECOND CONDITION STOOD SATISFIED, THE THIRD CONDITION WAS NOT SOUGHT . IT URGED THAT THE ASSESSEE WAS NOT ENTITLED TO IMMUNITY UNDER CLAUSE (2) AS HE DID NOT SATISFY THE THIRD CONDITION FOR AVAILING THE BENEFI T OF WAIVER OF PENALTY UNDER SECTION 271(1)(C) AS HE FAILED TO FILE HIS RE TURN OF INCOME ON 31ST JULY, 1987 AND PAY TAX THEREON PARTICULARLY WHEN TH E ASSESSEE CONCEDED ON 1ST AUG., 1987 THAT THERE WAS CONCEALMENT OF INC OME. THE THIRD CONDITION UNDER CLAUSE (2) WAS THAT THE ASSESSEE HA D TO PAY THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF SUCH UNDISCLOSED INCOME. THE COURT HELD THAT NO TIME-LIMIT FOR PAYMENT OF SUCH T AX STOOD PRESCRIBED UNDER CLAUSE (2) AND THAT THE ONLY REQUIREMENT STIP ULATED IN THE THIRD CONDITION WAS FOR THE ASSESSEE TO 'PAY TAX TOGETHER WITH INTEREST'. IT WAS HELD IN GEBILAL KANHAILAL (SUPRA) THAT THE THIRD CO NDITION WAS ALSO FULFILLED AS THE ASSESSEE PAID TAX WITH INTEREST UPTO THE DAT E OF PAYMENT. THE ONLY CONDITION WHICH WAS REQUIRED TO BE FULFILLED FOR SE CURING THE IMMUNITY, ITA NO.816/CHNY/2013 (AY: 2008-09) SHRI P.K. DURAISAMY :- 7 -: AFTER THE SEARCH PROCEEDINGS GOT OVER, WAS THAT THE ASSESSEE HAD TO PAY THE TAX TOGETHER WITH INTEREST IN RESPECT OF SUCH U NDISCLOSED INCOME UPTO THE DATE OF PAYMENT. EXPLANATION 5 (2) DID NOT PRES CRIBE THE TIME-LIMIT WITHIN WHICH THE ASSESSEE SHOULD PAY TAX ON INCOME DISCLOSED IN THE STATEMENT UNDER SECTION 132(4). 13. IN THE PRESENT CASE, DURING THE COURSE OF THE S TATEMENT MADE BY THE ASSESSEE, DURING THE COURSE OF THE SEARCH ON 4 MARC H, 2010, THAT SHE HAD LENT ' 16 CRORES IN AGGREGATE TO THREE INDIVIDU ALS DURING FINANCIAL YEAR 2009-2010. THIS WAS IN RESPONSE TO A QUERY BY THE R EVENUE OFFICIALS DURING THE COURSE OF SEARCH WHEN THE BASIS OF PAGE 81 OF EXHIBIT A-3 WAS SOUGHT TO BE QUESTIONED. TO THE NEXT QUESTION, THE ASSESSEE REPLIED THAT THE SAID AMOUNT OF 16 CRORES IS MY UNACCOUNTED INCO ME FOR THE FINANCIAL YEAR 2009-2010 RELEVANT FOR AY 2010-2011. HOWEVER, THE REQUIREMENT OF THE ASSESSEE HAVING TO (II) SUBSTANTIATES THE M ANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED WAS SATISFIED. ALTH OUGH A GENERAL STATEMENT THAT THE UNDISCLOSED INCOME WAS THE SOURC E OF ' 16 CRORES WAS DISCLOSED, NO SUBSTANTIATION OF THE MANNER OF D ERIVING SUCH UNDISCLOSED INCOME WAS REVEALED. 14. IN CONSTRUING SECTION 271AAA ONE MUST NOT LOSE SIGHT OF ITS ESSENTIAL PURPOSE WHICH RESULTED IN ITS ENACTMENT. THERE IS A PENALTY AT THE RATE OF 10% OF THE UNDISCLOSED AMOUNT DECLARED, IF THE COND ITIONS IN SECTION 271AAA (2) ARE NOT MET WITH. THIS IS QUITE DIFFEREN T FROM THE PENAL PROVISION UNDER SECTION 271 (1) (C) OF THE ACT, WHI CH DIRECTS THAT IF INCOME IS CONCEALED OR INACCURATE RETURNS ARE FILED, WHICH ARE DISALLOWED BY THE AO, THE PENALTY SHALL BE THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED. IN THE CASE OF AMOUNTS DISCLOSED DURING TH E COURSE OF SEARCH, THE PENALTY AMOUNT IS ONLY TEN PERCENT OF THE UNDIS CLOSED INCOME. PARLIAMENT HAS, THEREFORE, GIVEN A DIFFERENT TREATM ENT TO THE LATTER CATEGORY. AT THE SAME TIME, IF AN ASSESSEE WERE TO SUCCESSFULLY URGE THE ESCAPE ROUTE SO TO SAY, OF SECTION 271AAA (2), AL L THREE CONDITIONS MENTIONED IN THE PROVISION, (AS HELD IN GEBILAL KAN HAILAL IN RESPECT OF PARI MATERIAL PROVISIONS) HAVE TO NECESSARILY BE FULFILL ED. IN THE PRESET CASE, THE ASSESSEE, WHILE DECLARING THE UNDISCLOSED INCO ME ALSO STATED, THAT THE SURRENDER IS BEING MADE SUBJECT TO NO PENAL AC TION OF SECTION 271 (1) (C). 15. WHILE DEALING WITH A CASE OF SIMILAR SURRENDER- BUT MADE IN THE COURSE OF SURVEY PROCEEDINGS, BY AN ASSESSEE (WHICH LED TO IMPOSITION OF PENALTY), THE SUPREME COURT, IN MAK DATA (P) LTD V COMMISSIONER OF INCOME TAX 358 ITR 539 (SC) HELD AS FOLLOWS: 7. THE AO, IN OUR VIEW, SHALL NOT BE CARRIED AWAY BY THE PLEA OF THE ASSESSEE LIKE VOLUNTARY DISCLOSURE, BUY PEACE, AVOID LITIGATION, AMICABLE SETTLEMENT, ETC. TO EXPLAIN AWAY ITS CON DUCT. THE QUESTION IS WHETHER THE ASSESSEE HAS OFFERED ANY EX PLANATION FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. EXPLANATION TO 271 RAISES A PRESUMPTION OF ITA NO.816/CHNY/2013 (AY: 2008-09) SHRI P.K. DURAISAMY :- 8 -: CONCEALMENT, WHEN A DIFFERENCE IS NOTICED BY THE AO , BETWEEN REPORTED AND ASSESSED INCOME. THE BURDEN IS THEN ON THE ASSESSEE TO SHOW OTHERWISE, BY COGENT AND RELIABLE EVIDENCE. WHEN THE INITIAL ONUS PLACED BY THE EXPLANATION, HA S BEEN DISCHARGED BY HIM, THE ONUS SHIFTS ON THE REVENUE T O SHOW THAT THE AMOUNT IN QUESTION CONSTITUTED THE INCOME AND NOT O THERWISE. 8. ASSESSEE HAS ONLY STATED THAT HE HAD SURRENDERED THE ADDITIONAL SUM OF RS.40,74,000/- WITH A VIEW TO AVOID LITIGATI ON, BUY PEACE AND TO CHANNELIZE THE ENERGY AND RESOURCES TOWARDS PROD UCTIVE WORK AND TO MAKE AMICABLE SETTLEMENT WITH THE INCOME TAX DEPARTMENT. STATUTE DOES NOT RECOGNIZE THOSE TYPES OF DEFENCES UNDER THE EXPLANATION 1 TO 271 (1) (C) OF THE ACT. IT IS TRIT E LAW THAT THE VOLUNTARY DISCLOSURE DOES NOT RELEASE THE APPELLANT -ASSESSEE FROM THE MISCHIEF OF PENAL PROCEEDINGS. THE LAW DOES NOT PROVIDE THAT WHEN AN ASSESSEE MAKES A VOLUNTARY DISCLOSURE OF HI S CONCEALED INCOME, HE HAD TO BE ABSOLVED FROM PENALTY. 9. WE ARE OF THE VIEW THAT THE SURRENDER OF INCOME IN THIS CASE IS NOT VOLUNTARY IN THE SENSE THAT THE OFFER OF SURREN DER WAS MADE IN VIEW OF DETECTION MADE BY THE AO IN THE SEARCH COND UCTED IN THE SISTER CONCERN OF THE ASSESSEE. IN THAT SITUATION, IT CANNOT BE SAID THAT THE SURRENDER OF INCOME WAS VOLUNTARY. AO DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS HAS NOTICED THAT CERTAIN DOC UMENTS COMPRISING OF SHARE APPLICATION FORMS, BANK STATEME NTS, MEMORANDUM OF ASSOCIATION OF COMPANIES, AFFIDAVITS, COPIES OF INCOME TAX RETURNS AND ASSESSMENT ORDERS AND BLANK SHARE TRANSFER DEEDS DULY SIGNED, HAVE BEEN IMPOUNDED IN THE COURSE OF SURVEY PROCEEDINGS UNDER SECTION 133A CONDUCTED ON 16.12.2003, IN THE CASE OF A SISTER CONCERN OF THE ASSESSEE. 16. THAT THE INCOME WHICH WAS ULTIMATELY BROUGHT TO TAX PURSUANT TO THE DISCLOSURE MADE, WHICH WAS VOLUNTARY ON THE PART OF THE ASSESSEE IS STATING THE OBVIOUS. THE ASSESSEE MERELY STATED THA T THE SUMS ADVANCED WERE UNDISCLOSED INCOME. HOWEVER, SHE DID NOT SPECI FY HOW SHE DERIVED THAT INCOME AND WHAT HEAD IT FELL IN (RENT, CAPITAL GAIN, PROFESSIONAL OR BUSINESS INCOME OUT OF MONEY LENDING, SOURCE OF THE MONEY ETC). UNLESS SUCH FACTS ARE MENTIONED WITH SOME SPECIFICITY, IT CANNOT BE SAID THAT THE ASSESSEE HAS FULFILLED THE REQUIREMENT THAT SHE, IN HER STATEMENT (UNDER SECTION 132 (4)) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED. SUCH BEING THE CASE, THIS COUR T IS OF OPINION THAT THE LOWER APPELLATE AUTHORITIES MISDIRECTED THEMSEL VES IN HOLDING THAT THE CONDITIONS IN SECTION 271AAA (2) WERE SATISFIED BY THE ASSESSEE. 7. IN THE PRESENT CASE ALSO THE APPELLANT HAD NOT D ISCLOSED THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED THEREFORE, THE QUESTION OF SUBSTANTIATION OF THE SAME ALSO DOES NO T ARISE. THUS, THE ITA NO.816/CHNY/2013 (AY: 2008-09) SHRI P.K. DURAISAMY :- 9 -: APPELLANT HAD FAILED TO SATISFY THE CONDITIONS LAID DOWN IN SUB S. (2) OF S. 271AAA OF THE ACT. IN THE CIRCUMSTANCES, WE UPHOLD THE LEVY OF PENALTY U/S. 271AAA OF THE ACT. THEREFORE, APPEAL FILED BY THE ASSESSEE IS DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 30 TH DAY OF JANUARY, 2019 IN CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( ! ' # ) ( INTURI RAMA RAO ) $ /ACCOUNTANT MEMBER /CHENNAI, 2 /DATED: 30 TH JANUARY, 2019 . EDN, SR. P.S , */34 54'/ /COPY TO: 1. () /APPELLANT 4. . 6/ /CIT 2. *+() /RESPONDENT 5. 47 */ /DR 3. . 6/ ( )/CIT(A) 6. 8& 9 /GF