SHRI MUKUND SHARAN GOYAL, JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX, JAIPUR

ITA 293/JPR/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5997 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Jaipur
• Assessment Year: 2015-2016
• Appeal Filed On: 28-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Unexplained expenditure; Gift; Business income; Search and seizure; Salary income; Loose papers; Document seized; Opportunity of being heard; Principle of natural justice; Question of law; Initiation of penalty proceedings; Reasonable cause; Block assessment; Documents seized; Set aside
• Section: 131; 69; 27; 132; 271(1)(c); 139; 273B; 143(3); 153A; 69B; 250; 292BB; 274; 139(1); 43; 73; 13; 158BFA; 22; 20

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B, JAIPUR JH JES'K LH- 'KEKZ] YS[KK LNL; ,O A H JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C. SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA-@ ITA NO. 293/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2015-16. SHRI MUKUND SHARAN GOYAL, 24, GOYAL HOUSE, AJMER ROAD, JAIPUR. CUKE VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO.ABIPG 1414 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.R. SHARMA (CA) AND SHRI R.K. BHATRA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI B.K. GUPTA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23.08.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 23/09/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 14.12.2017 OF LD. CIT (APPEALS) ARISING FROM PENALTY ORDER PASSED UNDER SECTION 271AAB OF THE IT ACT FOR THE ASSESSMENT YEAR 2015-16. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 1. THAT THE NOTICE ISSUED BY ASSESSING OFFICER FO R INITIATING THE PENALTY U/S 271AAB OF THE I.T. ACT, 1961 IS NOT IN ACCORDANCE WITH LAW NOT BEING SPECIFICALLY POINTING OUT THE DE FAULT FOR WHICH THE LD. AO SOUGHT TO IMPOSE PENALTY U/S 271AAB. 2. THAT WITHOUT PREJUDICE TO THE GROUND NO. (1) ABO VE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (A ) IS WRONG, UNJUST AND HAS ERRED IN LAW IN CONFIRMING PENALTY O F RS. 2,46.36.012/- IMPOSED BY THE LD. ASSESSING OFFICER U/S 271AAB OF THE I.T. ACT, 1961. 2 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. 3. THAT THE APPELLANT CRAVES THE PERMISSION TO ADD TO OR AMEND TO ANY OF THE ABOVE GROUNDS OF APPEAL OR TO WITHDRAW A NY OF THEM. GROUND NO. 1 IS REGARDING VALIDITY OF INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 271AAB FOR WANT OF SPECIF YING THE DEFAULT AS PER CLAUSES (A) TO (C) OF SECTION 271AAB(1) OF THE IT ACT. 2. THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY, RENTAL INCOME AND INCOME FROM OTHER SOURCES. A SEARCH AND SEIZUR E ACTION UNDER SECTION 132 OF THE IT ACT WAS CARRIED OUT BY THE DEPARTMENT ON THE MEMBERS OF GOYAL GROUP ON 11.03.2015 OF WHICH ASSESSEE IS ONE OF THE MEMBERS. DURING THE COURSE OF SEARCH AND SEIZURE, A POCKET DIARY WAS FOUND AND SEIZED AS EXHIBIT 2 ANNEXURE AS CONTAINING NOTINGS OF ADVANCES FOR PURCHASE OF LAND ON DIFFERENT DATES TOTAL AMOUNTING TO RS. 24,58,50,000/-. THE ASSESSEE IN H IS STATEMENT RECORDED UNDER SECTION 132(4) DISCLOSED THE SAID INCOME OF RS. 24, 58,50,000/- AS ADDITIONAL BUSINESS INCOME FOR THE YEAR UNDER CONSIDERATION. THE ASSESS EE HAS ALSO DECLARED AN ADDITIONAL INCOME OF RS. 5,19,125/- ON ACCOUNT OF E XCESS JEWELLERY FOUND FROM THE RESIDENCE OF THE ASSESSEE. THE ASSESSEE FILED HIS RETURN OF INCOME UNDER SECTION 139(1) ON 30.08.2015 DECLARING TOTAL INCOME OF RS. 24,75,62,090/- INCLUDING THE INCOME DISCLOSED DURING THE SEARCH OF RS. 24,63,69, 125/-. THE AO COMPLETED THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 1 53B(1)(B) OF THE IT ACT ON 14.12.2016 ACCEPTING THE RETURNED INCOME. THEREAFT ER, THE AO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271AAB BY ISSUING A SHOW CAUSE NOTICE DATED 14.12.2016. THE ASSESSEE RAISED OBJECTION AGAINST T HE INITIATION OF PENALTY PROCEEDINGS AS WELL AS THE PROPOSED LEVY OF PENALTY BY THE AO. THE AO WHILE 3 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. PASSING THE PENALTY ORDER DATED 14.06.2017 LEVIED P ENALTY OF RS. 2,46,36,912/- @ 10% OF THE UNDISCLOSED INCOME OFFERED TO TAX. THE A SSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A) AND ALSO RAISED AN OB JECTION REGARDING THE VALIDITY OF INITIATION OF PROCEEDINGS, HOWEVER, COULD NOT SUCCE ED. 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE AO WHILE ISSUING THE SHOW CAUSE NOTICE DATED 14.12.2016 HAS NOT SPEC IFIED UNDER WHICH LIMB OF THE PROVISIONS OF SECTION 271AAB(1) THE PENALTY WAS SOU GHT TO BE LEVIED. THE AO HAS ONLY MENTIONED THE PENALTY UNDER SECTION 271AAB IN THE SHOW CAUSE NOTICE WHICH DOES NOT SATISFY THE REQUIREMENT OF LAW. THE LD. A /R HAS REFERRED TO THE SHOW CAUSE NOTICE AND SUBMITTED THAT IT IS EVIDENT THAT THE SA ID NOTICE WAS ISSUED IN A CASUAL MANNER WITHOUT SPECIFYING THE LIMB/CLAUSE OF SECTIO N 271AAB(1) OF THE ACT WHICH IS APPLICABLE IN THE CASE OF THE ASSESSEE. THEREFORE, THE AO FAILED TO MAKE THE ASSESSEE KNOWN THE GROUND WHICH THE ASSESSEE HAS TO MEET AND CONSEQUENTLY THE PRINCIPLES OF NATURAL JUSTICE IS VIOLATED. THE LD. A/R HAS FURTHER SUBMITTED THAT ANOTHER SHOW CAUSE NOTICE DATED 15.05.2017 WAS ALSO ISSUED BY THE AO WHICH IS IDENTICAL TO THE NOTICE DATED 14.12.2016 EXCEPT THE CHANGE OF DATE. THEREFORE, BOTH THE NOTICES ISSUED BY THE AO ARE SILENT ABOUT THE S PECIFIC DEFAULT UNDER CLAUSE (A) TO (C) OF SECTION 271AAB(1) OF THE ACT. THE LD. A/R H AS CONTENDED THAT SECTION 271AAB(1) HAS THREE CLAUSES I.E. (A) TO (C) AND EAC H CLAUSE OF SUB-SECTION (1) PROVIDES THE CIRCUMSTANCES AND VIOLATION ATTRACTING THE PENALTY @ 10%, 20% OR 30% OF UNDISCLOSED INCOME OF SPECIFIED PREVIOUS YEAR. THE ASSESSEE SHOULD KNOW THE GROUND WHICH HE HAS TO MEET SPECIFICALLY OTHERWISE THE PRINCIPLES OF NATURAL JUSTICE IS VIOLATED. THUS THERE IS NO APPLICATION OF MIND AT T HE TIME OF ISSUING THE SHOW CAUSE NOTICE BY THE AO WITHOUT SPECIFYING THE UNDISCLOSED INCOME WHICH THE ASSESSEE IS 4 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. REQUIRED TO SHOW CAUSE. THUS IN THE ABSENCE OF SPE CIFIC CHARGE AGAINST THE ASSESSEE, HE WAS NOT IN A POSITION TO COUNTER THE S HOW CAUSE ISSUED BY THE AO AS WELL AS HIS COGENT REPLY TO THE SHOW CAUSE NOTICE. THOUGH THE AO WHILE PASSING THE IMPUGNED ORDER HAS IMPOSED THE PENALTY AS PER CLAUS E (A) OF SECTION 271AAB(1) OF THE ACT, HOWEVER, NO SUCH GROUND WAS SPECIFIED IN T HE SHOW CAUSE NOTICE ISSUED BY THE AO. THEREFORE, THE PENALTY ORDER PASSED BY THE AO IS NOT SUSTAINABLE IN LAW WHEN THE INITIATION OF PROCEEDINGS SUFFERS FROM ILL EGALITY. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE FOLLOWING DECISI ONS :- CIT VS. MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565 (KARNATAKA) MUNINAGA REDDY VS. ACIT 396 ITR 398 (KARNATAKA) CIT VS. SSAS EMERALD MEADOWS 73 TAXMANN.COM 248 (SC) RAVI MATHUR VS. DCIT ITA NO. 969/JP/2017 DATED 13.06.2018. SHRI PADAM CHAND PUNGLIYA VS. ACIT ITA NO. 112/JP/2018 DATED 05.04.2019. APART FROM THE ABOVE DECISIONS, THE LD. A/R HAS ALS O REFERRED TO A SERIES OF DECISIONS ON THE POINT AND SUBMITTED THAT THIS TRIBUNAL HAS T AKEN A CONSISTENT VIEW THAT THE PENALTY PROCEEDINGS UNDER SECTION 271AAB IS NOT MAN DATORY BUT DISCRETIONARY AND THE AO HAS TO TAKE THE DECISION BY CONSIDERING THE REPLY AND EXPLANATION OF THE ASSESSEE. THUS THE AO IS REQUIRED TO GIVE FINDING WHETHER THE INCOME DISCLOSED BY THE ASSESSEE DURING THE SEARCH AND SEIZURE ACTION I S UNDISCLOSED INCOME AS PER THE DEFINITION PROVIDED IN EXPLANATION TO SECTION 271AA B OF THE ACT. THE LD. A/R HAS 5 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. SUBMITTED THAT THE LD. CIT (A) HAS COMMITTED AN ERR OR BY HOLDING THAT THE PENALTY UNDER SECTION 271AAB IS MANDATORY IN NATURE WHICH I S CONTRARY TO THE DECISIONS OF THIS TRIBUNAL ON THIS POINT. 4. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE ASSESSEE HAS DULY FILED HIS REPLY TO THE SHOW CAUSE NOTICE AND CLAIMED THAT SINCE THE ASSESSEE HAS ALREADY DECLARED THE SAID INCOME IN THE RETURN OF INCOME FI LED UNDER SECTION 139(1) OF THE ACT AND ACCORDINGLY NOT ENTITLED TO IMMUNITY FROM T HE LEVY OF PENALTY UNDER SECTION 271AAB. THE ASSESSEE IN HIS REPLY REFERRED TO THE PROVISIONS OF SECTION 271AAB(1)(A) OF THE ACT AND THUS NO PREJUDICE WAS C AUSED TO THE ASSESSEE IF SPECIFIC CLAUSE HAS NOT BEEN MENTIONED IN THE SHOW CAUSE NOT ICE ISSUED BY THE AO. THE LD. D/R HAS FURTHER SUBMITTED THAT THE AO HAS FINALLY L EVIED THE PENALTY UNDER SECTION 271AAB(1)(A) OF THE ACT AND, THEREFORE, THE DEFINIT E FINDING IS GIVEN BY THE AO WHILE PASSING THE PENALTY ORDER. HE HAS FURTHER CONTENDE D THAT THE ASSESSEE HAS SURRENDERED THE UNDISCLOSED BUSINESS INCOME IN HIS STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT AND ALSO REITERATED THE S AME STAND IN THE AFFIDAVIT FILED BY THE ASSESSEE SUBSEQUENTLY. THE LD. D/R HAS RELIED UPON THE DECISION DATED 5 TH APRIL, 2018 OF CHENNAI BENCH OF THE TRIBUNAL IN THE CASE O F R. ELANGOVAN IN ITA NO.1199/CHNY/2017. HE HAS RELIED UPON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN CASE OF PCIT VS. SANDEEP CHANDAK, 405 ITR 648 (ALLAHABAD) AND SUBMITTED THAT THE HONBLE HIGH COURT HAS ALSO OBSERVED THAT NOT MENTIONING CORRECT SECTION IN THE SHOW CAUSE NOTICE WILL NOT RENDER THE SHOW CAUS E NOTICE ILLEGAL. THE LD. D/R HAS ALSO RELIED UPON THE DECISION OF COORDINATE BENCH O F THE TRIBUNAL DATED 18.01.2019 IN CASE OF SHRI RAJENDRA KUMAR GUPTA VS. DCIT IN IT A NO. 359/JP/2017 AS WELL AS DECISION IN CASE OF SHRI RAJA RAM MAHESHWARI VS. DC IT IN ITA NO. 992/JP/2017. 6 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. SIMILARLY, IN THE CASE OF M/S. RAMBHAJOS VS. ACIT IN ITA NO. 991/JP/2017 THE TRIBUNAL VIDE DATED 11.01.2019 HAS ALSO HELD THAT W HEN THE AO HAS GIVEN A CLEAR FINDING WHILE PASSING THE PENALTY ORDER THEN THE UN CERTAINTY CHARGES AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS HAS BEEN MADE GOO D AND SUBSTITUTED WITH A CONCLUSIVE DEFAULT AT THE TIME OF PASSING THE PENAL TY ORDER. THEREFORE, THE TRIBUNAL HAS UPHELD THE VALIDITY OF INITIATION OF PENALTY PR OCEEDINGS. AS REGARDS THE PENALTY UNDER SECTION 271AAB IS MANDATORY IN NATURE, THE LD . D/R HAS SUBMITTED THAT AS PER THE FINANCE BILL 2012 WHEREBY THIS NEW SECTION 271A AB HAS BEEN INTRODUCED IN THE STATUTE, IT WAS PROPOSED TO PROVIDE LEVY OF PENALTY AND THE ASSESSEE SHALL PAY BY WAY OF PENALTY IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM EQUIVALENT TO A SUM COMPUTED AT THE RATE OF 10% TO 30% OF THE UNDISCLOS ED INCOME. THUS THE LANGUAGES OF THE NOTES ON CLAUSES OF FINANCE BILL C LEARLY MANIFEST THE MANDATORY NATURE OF LEVY OF PENALTY. THE LD. D/R HAS THEN RE FERRED TO SECTION 271AAB OF THE ACT AND SUBMITTED THAT PROVISIONS OF SECTION 273B A RE NOT APPLICABLE IN CASE OF PENALTY LEVIED UNDER SECTION 271AAB. THEREFORE, THE PENALTY IS MANDATORY AND NOT DISCRETIONARY. THE LD. D/R HAS FURTHER CONTENDED THAT THE ASSESSEE WAS VERY WELL AWARE ABOUT THE DEFAULT AND THE NATURE OF INCOME HE HAS DISCLOSED AND SURRENDERED DURING THE STATEMENT RECORDED UNDER SECTION 132(4) OF THE IT ACT. THE SURRENDER IN QUESTION WAS MADE BECAUSE THE ASSESSEE WAS UNABLE T O EXPLAIN THE SOURCE OF THE INVESTMENT IN QUESTION. IT IS A CLEAR CASE OF UNDIS CLOSED INCOME DETECTED DURING THE COURSE OF SEARCH AND SEIZURE ACTION AND, THEREFORE, THE SURRENDER MADE BY THE ASSESSEE HIMSELF IS SELF-EXPLANATORY TO THE NATURE OF INCOME SURRENDERED BY THE ASSESSEE. THE LD. D/R HAS CONTENDED THAT THE ASSES SEE HAS PARTICIPATED IN THE PENALTY PROCEEDINGS AND HAS NOT RAISED ANY OBJECTIO N OR HAS DEMANDED BEFORE THE 7 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. AO ABOUT HIS UNAWARENESS OF THE NATURE OF DEFAULT A TTRACTING THE LEVY OF PENALTY UNDER SECTION 271AAB. IT IS NOT THE CASE OF THE ASS ESSEE THAT THE DISCLOSURE WAS TAKEN UNDER COERCION AND FURTHER THE ASSESSEE HAS O FFERED THE SAID AMOUNT TO TAX IN THE RETURN OF INCOME WHICH RULES OUT THE SCOPE OF A NY PRESSURE OR COERCION BY THE SEARCH TEAM FOR TAKING DISCLOSURE FROM THE ASSESSEE . THUS THE OBJECTION RAISED BY THE ASSESSEE THAT THE AO HAS NOT SPECIFIED THE CLAU SE UNDER SECTION 271AAB(1) OF THE ACT HAS NO MERIT WHEN THE ASSESSEE HIMSELF HAS EXPLAINED THE NATURE OF INCOME DISCLOSED AND SURRENDERED AND ALSO PAID THE TAX ON THE SAME. THE LD. D/R HAS SUBMITTED THAT AS PER THE EXPLANATORY NOTE OF FINAN CE BILL, 2012, THE PROVISIONS OF SECTION 271AAB ARE MANDATORY IN NATURE AND THE AO H AS NO DISCRETION BUT THE ASSESSEE SHALL PAY THE PENALTY IN ADDITION TO THE T AX ON THE UNDISCLOSED INCOME SURRENDERED UNDER SECTION 132(4) OF THE ACT. HE HA S RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THERE WAS A SEARCH AND SEIZURE ACTION IN T HE CASE OF THE ASSESSEE ON 11.03.2015. AS PER THE SEIZED MATERIAL EXHIBIT 2 A NNEXURE AS, A POCKET DIARY CONTAINING 7 PAGES AND NOTINGS REGARDING ADVANCES F OR PURCHASE OF LAND AGAINST THE NAMES AND DATES WAS SEIZED. THE ASSESSEE IN HIS ST ATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT HAS DISCLOSED THE INCOME OF RS. 2 4,58,50,000/- ON ACCOUNT OF ADVANCES FOR LAND AS FOUND RECORDED IN THE SEIZED M ATERIAL AND RS. 5,19,125/- ON ACCOUNT OF EXCESS JEWELLERY FOUND DURING THE SEARCH . THE DISCLOSURE OF INCOME IN THE STATEMENT RECORDED UNDER SECTION 132(4) AS WELL AS DECLARING THE SAID INCOME IN THE RETURN OF INCOME FILED UNDER SECTION 139(1) IS RELEVANT FOR THE ASSESSMENT PROCEEDINGS BUT THE SAID DISCLOSURE ITSELF IS NOT S UFFICIENT AND CONCLUSIVE PROOF TO 8 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. HOLD THAT THE INCOME DISCLOSED BY THE ASSESSEE IS A N UNDISCLOSED INCOME AS PER THE DEFINITION PROVIDED UNDER EXPLANATION TO SECTION 27 1AAB OF THE ACT. SINCE THE INCOME WAS DECLARED BY THE ASSESSEE IN THE RETURN O F INCOME, THEREFORE, THE ISSUE DID NOT CROP UP IN THE ASSESSMENT PROCEEDINGS WHETH ER THE SAID INCOME DISCLOSED BY THE ASSESSEE IN THE STATEMENT RECORDED DURING THE S EARCH AND SEIZURE ACTION UNDER SECTION 132(4) AND OFFERED TO TAX IN THE RETURN OF INCOME IS AN UNDISCLOSED INCOME IN TERMS OF DEFINITION UNDER SECTION 271AAB OF THE ACT . THUS THE AO IS REQUIRED TO CONSIDER AND DECIDE THIS ISSUE IN THE PENALTY PROCE EDINGS UNDER SECTION 271AAB OF THE ACT. A MERE DISCLOSURE BY THE ASSESSEE AND SUR RENDER OF INCOME TO TAX WOULD NOT IPSO FACTO LEAD TO THE CONCLUSION THAT THE SAID INCOME IS UNDISCLOSED INCOME AS PER THE DEFINITION PROVIDED UNDER SECTION 271AAB OF THE ACT TO ATTRACT THE PENALTY. THEREFORE, IT IS A CONDITION PRECEDENT FOR INVOKING THE PROVISIONS OF SECTION 271AAB THAT THE SAID INCOME DISCLOSED BY THE ASSESSEE IN H IS STATEMENT UNDER SECTION 132(4) IS AN UNDISCLOSED INCOME IN TERMS OF DEFINITION PRO VIDED UNDER SECTION 271AAB OF THE ACT. THE ISSUE OF MANDATORY OR DISCRETIONARY N ATURE OF PENALTY UNDER SECTION 271AAB AS WELL AS VALIDITY OF INITIATION OF PENALTY FOR NOT SPECIFYING THE GROUND AND DEFAULT IN THE SHOW CAUSE NOTICE HAS BEEN CONSIDERE D AND DECIDED BY THIS TRIBUNAL IN A SERIES OF DECISIONS. IN THE LATEST DECISION IN T HE CASE OF SHRI PADAM CHAND PUNGLIYA VS. ACIT (SUPRA) THE TRIBUNAL HAS AGAIN CO NSIDERED THIS ISSUE IN PARA 5 TO 5.1 AS UNDER :- 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. DURING THE COURSE OF SEARCH AN D SEIZURE ACTION UNDER SECTION 132 CONDUCTED ON 4 TH SEPTEMBER, 2013, THE ASSESSEE DISCLOSED INCOME OF RS. 5,01,66,717/- IN HIS STATEMENT MADE U NDER SECTION 132(4) OF 9 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. THE ACT. THE SAID DISCLOSURE WAS MADE IN PURSUANT TO THE ENTRIES IN THE SEIZED DOCUMENTS. THE DETAILS OF THE UNDISCLOSED I NCOME SURRENDERED BY THE ASSESSEE ARE AS UNDER :- A) UNEXPLAINED EXPENDITURE ON HOUSE CONSTRUCTION 2,44 ,63,575/- B) UNDISCLOSED STOCK 1,91,24,877/- C) UNDISCLOSED JEWELLERY 60,16,265/- D) UNDISCLOSED DEBTORS/ADVANCES 5,62,000/- ------------------ TOTAL : 5,01,66,717/- ------------------ IT IS PERTINENT TO NOTE THAT THE DISCLOSURE OF ADDI TIONAL INCOME IN THE STATEMENT RECORDED UNDER SECTION 132(4) ITSELF IS N OT SUFFICIENT TO LEVY THE PENALTY UNDER SECTION 271AAB OF THE ACT UNTIL AND U NLESS THE INCOME SO DISCLOSED BY THE ASSESSEE FALLS IN THE DEFINITION O F UNDISCLOSED INCOME DEFINED IN THE EXPLANATION TO SECTION 271AAB(1) OF THE ACT. THEREFORE, THE QUESTION WHETHER THE INCOME DISCLOSED BY THE ASSESSEE IS UND ISCLOSED INCOME IN TERMS OF THE DEFINITION UNDER SECTION 271AAB OF THE ACT H AS TO BE CONSIDERED AND DECIDED IN THE PENALTY PROCEEDINGS. SINCE THE ASSE SSEE HAS OFFERED THE SAID INCOME IN THE RETURN OF INCOME FILED UNDER SECTION 139(1) OF THE ACT, THEREFORE, THE QUESTION OF TAKING ANY DECISION BY T HE AO IN THE ASSESSMENT PROCEEDINGS ABOUT THE TRUE NATURE OF SURRENDER MADE BY THE ASSESSEE DOES NOT ARISE AND ONLY WHEN THE AO HAS PROPOSED TO LEVY THE PENALTY THEN IT IS A PRE-CONDITION FOR INVOKING THE PROVISIONS OF SECTIO N 271AAB THAT THE SAID INCOME DISCLOSED BY THE ASSESSEE IN THE STATEMENT U NDER SECTION 132(4) IS AN UNDISCLOSED INCOME AS PER THE DEFINITION PROVIDED U NDER SECTION 271AAB. THEREFORE, THE AO IN THE PROCEEDINGS UNDER SECTION 271AAB HAS TO EXAMINE ALL THE FACTS OF THE CASE AS WELL AS THE BASIS OF T HE SURRENDER AND THEN ARRIVE TO THE CONCLUSION THAT THE INCOME DISCLOSED BY THE ASSESSEE FALLS IN THE DEFINITION OF UNDISCLOSED INCOME AS STIPULATED IN T HE EXPLANATION TO THE SAID SECTION. THEREFORE, WE DO NOT AGREE WITH THE CONTE NTION OF THE LD. D/R THAT THE LEVY OF PENALTY UNDER SECTION 271AAB IS MANDATO RY SIMPLY BECAUSE THE AO HAS TO FIRST ISSUE A SHOW CAUSE NOTICE TO THE AS SESSEE AND THEN HAS TO MAKE A DECISION FOR LEVY OF PENALTY AFTER CONSIDERI NG THE FACT THAT ALL THE CONDITIONS PROVIDED UNDER SECTION 271AAB ARE SATISF IED. AT THE OUTSET, WE NOTE THAT AN IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE COORDINATE BENCH OF 10 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. THIS TRIBUNAL IN THE CASE OF RAVI MATHUR VS. DCIT ( SUPRA) IN PARA 4 TO 6 AS UNDER :- 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. A SEARCH WAS CONDUCTED UNDER S ECTION 132 OF THE IT ACT ON 30 TH OCTOBER, 2014 AT THE PREMISES OF THE ASSESSEE. TH E ASSESSEE IN HIS STATEMENT RECORDED UNDER SECTION 13 2(4) HAS DISCLOSED AN INCOME OF RS. 10,02,00,000/- IN PURSUANT TO THE ENTRIES OF ADVANCES GIVEN FOR PURCHASE OF LAND RECORDED IN THE POCKET DIARY WHICH WAS FOUND AND SEIZED DURING THE COURSE OF SEA RCH AND SEIZURE ACTION. THIS IS YEAR OF SEARCH AND THE FINANCIAL YE AR WOULD END ON 31 ST MARCH, 2015. HOWEVER, THE ASSESSEE DISCLOSED THIS A MOUNT OF RS. 10,02,00,000/- BASED ON THE ENTRIES IN THE DIARY RE GARDING INVESTMENT IN REAL ESTATE. THE DUE DATE OF FILING OF RETURN OF INCOME UNDER SECTION 139(1) WAS 30 TH SEPTEMBER, 2015. IT IS UNDISPUTED FACT THAT THE ASSESSEE IS AN INDIVIDUAL AND WAS NOT MAINTAINING R EGULAR BOOKS OF ACCOUNT. THEREFORE, THE TRANSACTIONS RECORDED IN TH E POCKET DIARY FOUND DURING THE COURSE OF SEARCH ITSELF WOULD NOT LEAD TO THE PRESUMPTION THAT THE ASSESSEE WOULD NOT HAVE OFFERE D THIS INCOME TO TAX IF THE SEARCH IS NOT CONDUCTED ON 30 TH OCTOBER, 2014. FURTHER, THE ENTRIES IN THE DIARY ITSELF DO NO NOT REPRESENT THE INCOME OF THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION THOUGH THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF INVESTMENT IN QUESTION AND THAT SOURCE WOULD BE THE INCOME OF THE ASSESSEE. IT IS MOST LIKELY THAT THE INVESTMENT IN QUESTION WAS MADE FROM THE UNACCOUNTE D INCOME OF PRECEDING YEARS. HENCE THE INVESTMENT IN THE REAL E STATE ITSELF WOULD NOT REVEAL THE NATURE OF INCOME AND THE SOURCE OF I NCOME OF THE YEAR UNDER CONSIDERATION. IT IS A PRE-CONDITION FOR INV OKING THE PROVISIONS OF SECTION 271AAB THAT THE ASSESSEE ADMITTED THE UN DISCLOSED INCOME IN THE STATEMENT UNDER SECTION 132(4). THE DEFINIT ION OF UNDISCLOSED INCOME IS PROVIDED IN SECTION 271AAB ITSELF AND, T HEREFORE, THE AO IN THE PROCEEDINGS UNDER SECTION 271AAB HAS TO EXAMINE ALL THE FACTS OF THE CASE AND THEN ARRIVE TO THE CONCLUSION THAT THE INCOME DISCLOSED BY THE ASSESSEE FALLS IN THE DEFINITION OF UNDISCL OSED INCOME AS 11 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. STIPULATED IN THE EXPLANATION TO SAID SECTION. THE FIRST QUESTION ARISES IS WHETHER THE LEVY OF PENALTY UNDER SECTION 271AAB IS MANDATORY AND CONSEQUENTIAL TO THE DISCLOSURE OF INCOME BY THE AS SESSEE UNDER SECTION 132(4) OR THE AO HAS TO TAKE A DECISION WHE THER THE GIVEN CASE HAS SATISFIED THE REQUIREMENTS FOR LEVY OF PEN ALTY UNDER SECTION 271AAB OF THE ACT. IN ORDER TO CONSIDER THIS ISSU E, THE PROVISIONS OF SECTION 271AAB ARE TO BE ANALYZED. FOR READY REFE RENCE, WE QUOTE SECTION 271AAB AS UNDER :- 271AAB. (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 JULY, 2012 49 [BUT BEFORE THE DATE ON WHICH THE TAXATION LAWS (SE COND AMENDMENT) BILL, 2016 RECEIVES THE ASSENT OF THE PRESIDENT 50 ], THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, (A) A SUM COMPUTED AT THE RATE OF TEN PER CENT OF THE U NDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR, IF SUCH ASSESSEE (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UNDER S UB-SECTION (4) OF SECTION 132 , ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE M ANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOSED I NCOME WAS DERIVED; AND (III) ON OR BEFORE THE SPECIFIED DATE (A) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RE SPECT OF THE UNDISCLOSED INCOME; AND (B) FURNISHES THE RETURN OF INCOME FOR THE SPECIFIED PR EVIOUS YEAR DECLARING SUCH UNDISCLOSED INCOME THEREIN; (B) A SUM COMPUTED AT THE RATE OF TWENTY PER CENT OF TH E UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR, IF SUCH ASSESSEE (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UNDER S UB-SECTION (4) OF SECTION 132 , DOES NOT ADMIT THE UNDISCLOSED INCOME; AND (II) ON OR BEFORE THE SPECIFIED DATE (A) DECLARES SUCH INCOME IN THE RETURN OF INCOME FURNIS HED FOR THE SPECIFIED PREVIOUS YEAR; AND (B) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RE SPECT OF THE UNDISCLOSED INCOME; (C) A SUM 51 [COMPUTED AT THE RATE OF SIXTY PER CENT] OF THE UND ISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR, IF IT IS NOT COVERED BY TH E PROVISIONS OF CLAUSES (A) AND (B). 52 [(1A) THE ASSESSING OFFICER MAY, NOTWITHSTANDING AN YTHING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHER E SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE DATE ON WHICH THE TAXATION LAWS (S ECOND AMENDMENT) BILL, 2016 12 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. RECEIVES THE ASSENT OF THE PRESIDENT, THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, (A) A SUM COMPUTED AT THE RATE OF THIRTY PER CENT OF TH E UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR, IF THE ASSESSEE (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UNDER S UB-SECTION (4) OF SECTION 132 , ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE M ANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOSED I NCOME WAS DERIVED; AND (III) ON OR BEFORE THE SPECIFIED DATE (A) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RE SPECT OF THE UNDISCLOSED INCOME; AND (B) FURNISHES THE RETURN OF INCOME FOR THE SPECIFIED PREVIOUS YEAR DECLARING SUCH UNDISCLOSED INCOME THEREIN; (B) A SUM COMPUTED AT THE RATE OF SIXTY PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR, IF IT IS NOT COVERED UNDER THE PROVI SIONS OF CLAUSE ( A).] (2) NO PENALTY UNDER THE PROVISIONS OF 53 [ SECTION 270A OR] CLAUSE (C) OF SUB-SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN RESPECT OF T HE UNDISCLOSED INCOME REFERRED TO IN SUB-SECTION (1) 52 [OR SUB-SECTION (1A)]. (3) THE PROVISIONS OF SECTIONS 274 AND 275 SHALL, AS FAR AS MAY BE, APPLY IN RELATION TO THE PENALTY REFERRED TO IN THIS SECTION. EXPLANATION.FOR THE PURPOSES OF THIS SECTION, (A) 'SPECIFIED DATE' MEANS THE DUE DATE OF FURNISHING O F RETURN OF INCOME UNDER SUB- SECTION (1) OF SECTION 139 OR THE DATE ON WHICH THE PERIOD SPECIFIED IN THE NO TICE ISSUED UNDER SECTION 153A FOR FURNISHING OF RETURN OF INCOME EXPIRES, AS THE CASE MAY BE; (B) 'SPECIFIED PREVIOUS YEAR' MEANS THE PREVIOUS YEAR (I) WHICH HAS ENDED BEFORE THE DATE OF SEARCH, BUT THE DATE OF FURNISHI NG THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 FOR SUCH YEAR HAS NOT EXPIRED BEFORE THE DATE OF SEARCH AND THE ASSESSEE HAS NOT FURNISHED THE RETURN OF INCOME FOR THE PREVIOUS YEAR BEFORE THE D ATE OF SEARCH; OR (II) IN WHICH SEARCH WAS CONDUCTED; (C) 'UNDISCLOSED INCOME' MEANS (I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRESENT ED, EITHER WHOLLY OR PARTLY, BY ANY MONEY, BULLION, JEWELLERY OR OTHER V ALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENT S 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 I N 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 54 [PRINCIPAL CHIEF COMMISSIONER OR] CHIEF COMMISSIONER OR 54 [PRINCIPAL 13 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. COMMISSIONER OR] COMMISSIONER BEFORE THE DATE OF SE ARCH; OR (II) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRESENTED, EITHER WHOLLY OR PARTLY, BY ANY ENTRY IN RESPECT OF AN EXPENSE RECOR DED 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 W OULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED.] THE SECTION BEGINS WITH THE STIPULATION THAT THE AO MAY DIRECT THE ASSESSEE SHALL PAY BY WAY OF PENALTY IF THE CONDITI ONS AS PRESCRIBED UNDER CLAUSES (A) TO (C) ARE SATISFIED. AS PER SUB -SECTION (3) OF SECTION 271AAB THE PROVISIONS OF SECTION 274 AND 27 5 AS FAR AS MAY BE APPLIED IN RELATION TO THE PENALTY REFERRED IN T HIS SECTION WHICH MEANS THAT BEFORE IMPOSING THE PENALTY UNDER SEC. 2 71AAB, THE AO HAS TO ISSUE A SHOW CAUSE NOTICE AND GIVE A PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS THE LEVY OF PENALTY U /S. 271AAB IS NOT AUTOMATIC BUT THE A.O. HAS TO TAKE A DECISION TO IM POSE THE PENALTY AFTER GIVING A PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS STATUTORY REQUIREMENT THAT THE EXPLANATION OF THE A SSESSEE FOR NOT FULFILLING THE CONDITIONS AS PRESCRIBED U/S 271AAB OF THE ACT IS REQUIRED TO BE CONSIDERED BY THE AO AND PARTICULARL Y WHETHER THE EXPLANATION FURNISHED BY THE ASSESSEE IS BONAFIDE A ND NON-COMPLIANCE OF THE SAME IS DUE TO THE REASON BEYOND THE CONTROL OF THE ASSESSEE. THEREFORE, THE PENALTY U/S 271AAB IS NOT A CONSEQUE NTIAL ACT BUT THE AO HAS TO FIRST INITIATE PROCEEDINGS BY ISSUING A S HOW CAUSE NOTICE AND AFTER CONSIDERING THE EXPLANATION AND REPLY OF THE ASSESSEE HAS TO TAKE A DECISION. THIS REQUIREMENT OF GIVING AN OPP ORTUNITY OF HEARING ITSELF MAKES IT CLEAR THAT THE PENALTY U/S 271AAB I S NOT MANDATORY BUT THE AO HAS TO TAKE A DECISION BASED ON THE FACTS AN D CIRCUMSTANCES OF THE CASE OTHERWISE THERE IS NO REQUIREMENT OF ISSUI NG ANY NOTICE FOR INITIATION OF PROCEEDINGS BUT THE LEVY OF PENALTY W OULD BE CONSEQUENTIAL AND ONLY COMPUTATION OF THE QUANTUM W AS TO BE DONE BY THE AO AS IN THE CASE OF LEVY OF INTEREST AND FE E U/S 234A TO E. EVEN THE QUANTUM OF PENALTY LEVIABLE U/S 271AAB IS ALSO SUBJECT TO THE CONDITION PRESCRIBED UNDER CLAUSES (A) TO (C) O F SUB-SECTION (1) AND THE AO HAS TO AGAIN GIVE A FINDING FOR LEVY OF PENALTY @ 10% OR 14 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. 20% OR 30% OF THE UNDISCLOSED INCOME. THUS THE AO IS BOUND TO TAKE A DECISION AS TO WHAT DEFAULT IS COMMITTED BY THE ASSESSEE AND WHICH PARTICULAR CLAUSE OF SECTION 271AAB(1) IS ATT RACTED ON SUCH DEFAULT. FURTHER, MERE DISCLOSURE OF INCOME UNDER SECTION 132(4) WOULD NOT IPSO FACTO PAR TAKE THE CHARACTER OF UNDI SCLOSED INCOME BUT THE FACTS OF EACH CASE ARE REQUIRED TO BE ANALYZED IN OBJECTIVE MANNER SO AS TO ATTRACT THE PROVISIONS OF SECTION 271AAB O F THE ACT. SINCE IT IS NOT AUTOMATIC BUT THE AO HAS TO GIVE A FINDING THAT THE CASE OF THE ASSESSEE FALLS IN THE AMBIT OF UNDISCLOSED INCOME A S DEFINED IN EXPLANATION TO THE SAID SECTION. THEREFORE, THE PR OVISIONS OF SECTION 271AAB STIPULATE THAT THE AO MAY COME TO THE CONCLU SION THAT THE ASSESSEE SHALL PAY THE PENALTY. THE ONLY MANDATORY ASPECT IN THE PROVISION IS THE QUANTUM OF PENALTY AS SPECIFIED UN DER CLAUSES (A) TO (C) OF SEC. 271AAB(1) OF THE ACT AS 10% TO 30% OR M ORE AS AGAINST THE DISCRETION GIVEN TO THE AO AS PER THE PROVISION S OF SECTION 271(1)(C) OF THE ACT WHERE THE AO HAS THE DISCRETIO N TO LEVY THE PENALTY FROM 100% TO 300% OF THE TAX SOUGHT TO BE E VADED. THUS THE AO IS DUTY BOUND TO COME TO THE CONCLUSION THAT THE CASE OF THE ASSESSEE IS FIT FOR LEVY OF PENALTY UNDER SECTION 2 71AAB AND THEN ONLY THE QUANTUM OF PENALTY BEING 10% OR 20% OR 30% HAS TO BE DETERMINED SUBJECT TO THE EXPLANATION OF THE ASSESS EE FOR THE DEFAULTS. 5. BEFORE WE PROCEED FURTHER, THE DECISIONS RELIED UPON BY THE LD. D/R ARE TO BE CONSIDERED. IN THE CASE OF PRINCIPAL CIT VS. SANDEEP CHANDAK & OTHERS (SUPRA) THE ISSUE BEFORE THE HONB LE HIGH COURT WAS THE DEFECT IN THE NOTICE ISSUED UNDER SECTION 2 71AAB ON ACCOUNT OF MENTIONING WRONG PROVISION OF THE ACT BEING 271( 1)(C) OF THE ACT. THE HONBLE HIGH COURT AFTER CONSIDERING THE FACT T HAT THE SHOW CAUSE NOTICE ISSUED BY THE AO THOUGH MENTIONS SECTION 271 (1) IN THE CAPTION OF THE SAID NOTICE, HOWEVER, THE BODY OF TH E SHOW CAUSE NOTICE CLEARLY MENTIONS SECTION 271AAB, WHICH WAS F ULLY COMPREHENDED BY THE ASSESSEE AS REVEALS IN THE REPL Y FILED BY THE 15 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. ASSESSEE AGAINST THE SAID SHOW CAUSE NOTICE. HENCE THE HONBLE HIGH COURT HAS HELD AS UNDER :- THE LD. A.RS HAVE ALSO CHALLENGED THAT THE CAPTIO N OF THE NOTICE MENTIONED ONLY SECTION 271 AND NOT 271AAB. I N THIS RESPECT, THE COPY OF NOTICE HAS BEEN PRODUCED BY THE LD. A.R . BEFORE ME. IT IS SEEN THAT THE LD. A.R IS CORRECT IN OBSERVING THAT THE SECTION OF PENALTY HAS NOT BEEN CORRECTLY MENTIONED BY THE AO IN THE C APTION. HOWEVER, THE AO WILL GET THE BENEFIT OF SECTION 292BB OF THE INCOME TAX ACT, 1961 BECAUSE FIRSTLY, THE ASSESSEE HAS RAISED NO OB JECTION BEFORE THE AO IN THIS REGARD. SECONDLY, LAST LINE OF THE NOTIC E CLEARLY MENTIONS SECTION 271AAB. THIRDLY, THE ASSESSEE HAS GIVEN REP LY TO SAID NOTICE WHICH SHOWS THAT THE ASSESSEE FULLY COMPREHENDED TH E IMPLICATION OF THE NOTICE THAT IT IS FOR SECTION 271AAB. THE ASSESSEE HAS ALSO CHALLENGED THAT THE PRINCIPLE S OF NATURAL JUSTICE HAS NOT FOLLOWED BY THE AO. THE DETAILED SU BMISSIONS OF A.R IN THIS REGARD HAS ALREADY BEEN REPRODUCED ABOVE. THE A.R DID NOT PRODUCE ANY EVIDENCE TO SHOW THAT HE WAS NOT GIVEN PROPER OPPORTUNITY OF HEARING. IT IS CLEAR FROM THE PENALT Y ORDER THAT THE AO HAS GIVEN PENALTY NOTICE AND WHICH WAS ALSO REPLIED BY THE ASSESSEE. THEREFORE, IN MY OPINION, PRINCIPLE OF NATURAL JUST ICE HAS NOT BEEN VIOLATED. THUS IN VIEW OF ABOVE DISCUSSION PENALTY IMPOSED BY AO U/S 271AAB OF THE ACT IS CONFIRMED. THUS IT WAS FOUND BY THE HONBLE HIGH COURT THAT TH E MISTAKE IN MENTIONING THE SECTION IN THE SHOW CAUSE NOTICE IS COVERED UNDER SECTION 292BB AND THE AO WILL GET THE BENEFIT OF TH E SAME. THE SAID DECISION WILL NOT HELP THE CASE OF THE REVENUE SO F AR AS THE ISSUE INVOLVES THE MERITS OF LEVY OF PENALTY UNDER SECTIO N 271AAB. AS REGARDS THE DECISION OF KOLKATA BENCHES OF THE TRIB UNAL IN THE CASE OF DCIT VS. AMIT AGARWAL (SUPRA), WE FIND THAT THE SAI D DECISION WAS SUBSEQUENTLY RECALLED BY THE TRIBUNAL AND A FRESH O RDER DATED 14 TH MARCH, 2018 WAS PASSED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE. THEREFORE, THE DECISION RELIED UPON BY THE LD. D/R IS NO MORE IN EXISTENCE. 6. THE QUESTION WHETHER LEVY OF PENALTY UNDER SECTI ON 271AAB BY THE AO IS MANDATORY OR DISCRETIONARY HAS BEEN CONSI DERED BY THE VISAKHAPATNAM BENCH OF THIS TRIBUNAL IN CASE OF ACI T VS. M/S. MARVEL ASSOCIATES (SUPRA) IN PARA 5 TO 7 AS UNDER :- 16 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. 5. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. DURING THE APPEAL HEARING, THE LD. A.R. VEHEMENTLY ARGUED THAT THE A. O. HAS LEVIED THE PENALTY UNDER THE IMPRESSION THAT THE LEVY OF PENALTY IN TH E CASE OF ADMISSION OF INCOME U/S 132(4) IS MANDATORY. THE LD. A.R. FURTHE R STATED THAT PENALTY U/S 271AAB OF THE ACT IS NOT MANDATORY BUT DISCRETIONAR Y. THE PROVISIONS OF SECTION 271AAB OF THE ACT IS PARIMATERIA WITH THAT OF SECTION 158BFA OF THE ACT RELATING TO BLOCK ASSESSMENT AND ACCORDINGLY AR GUED THAT THE LEVY OF PENALTY UNDER SECTION 271AAB IS NOT MANDATORY BUT D ISCRETIONARY. WHEN THERE IS REASONABLE CAUSE, THE PENALTY IS NOT EXIGI BLE. THE LD. A.R. TAKEN US TO THE SECTION 271AAB OF THE ACT AND ALSO SECTION 158B FA(2) OF THE ACT AND ARGUED THAT THE WORDS USED IN SECTION 271AAB OF THE ACT AND THE WORDS USED IN SECTION 158BFA(2) OF THE ACT ARE IDENTICAL. HENC E, ARGUED THAT THE PENALTY SECTION 271AAB OF THE ACT PENALTY IS NOT AUTOMATIC AND IT IS ON THE MERITS OF EACH CASE. FOR READY REFERENCE, WE REPRODUCE HEREUN DER SECTION 158BFA (2) OF THE ACT AND SECTION 271AAB OF THE ACT WHICH READ S AS UNDER; 271AAB [PENALTY WHERE SEARCH HAS BEEN INITIATED]: (1) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHER E SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER 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) A SUM COMPUTED AT THE RATE OF TEN PER CENT OF T HE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR, IF SUCH ASSESSEE (I) IN THE COURSE OF SEARCH, IN A STATEMENT UNDER SUB-S ECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPEC IFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED. (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOSED I NCOME WAS DERIVED; AND (III) ON OR BEFORE THE SPECIFIED DATE (A) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RE SPECT OF THE UNDISCLOSED INCOME; AND (B) FURNISHES THE RETURN OF INCOME FOR THE SPECIFIED PR EVIOUS YEAR DECLARING SUCH UNDISCLOSED INCOME THEREIN; 17 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. (B) A SUM COMPUTED AT THE RATE OF TWENTY PER CENT O F THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR, IF SUCH ASSESSEE (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UNDER S UB-SECTION (4_) OF SECTION 132, DOES NOT ADMIT THE UNDISCLOSED INCOME; AND (II) ON OR BEFORE THE SPECIFIED DATE (A) DECLARES SUCH INCOME IN THE RETURN OF INCOME FURNIS HED FOR THE SPECIFIED PREVIOUS YEAR; AND (B) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, I N RESPECT OF THE UNDISCLOSED INCOME; (C) A SUM WHICH SHALL NOT BE LESS THAN THIRTY PER C ENT BUT WHICH SHALL NOT EXCEED NINETY PER CENT OF THE UNDISCLOSED INCOME OF THE SP ECIFIED PREVIOUS YEAR, IF IT IS NOT COVERED BY THE PROVISIONS OF CLAUSES (A) AND (B). (2) NO PENALTY UNDER THE PROVISIONS OF CLAUSE (C) O F SUB-SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN RESPECT OF THE UNDI SCLOSED INCOME REFERRED TO IN SUB-SECTION (1). SECTION 158BFA(2): (2) THE ASSESSING OFFICER OR THE COMMISSIONER (APPE ALS) IN THE COURSE OF ANY PROCEEDINGS UNDER THIS CHAPTER, MAY DIRECT THAT A P ERSON SHALL PAY BY WAY OF PENALTY A SUM WHICH SHALL NOT BE LESS THAN THE AMOUNT OF TA X LEVIABLE BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SO LEVIABLE IN RESPECT OF THE UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFICER UNDER CLAUSE (C ) OF SECTION 158BC: PROVIDED THAT NO ORDER IMPOSING PENALTY SHALL BE MADE IN RE SPECT OF A PERSON IF (I) SUCH PERSON HAS FURNISHED A RETURN UNDER CLAUSE (A) OF SECTION 158BC; (II) THE TAX PAYABLE ON THE BASIS OF SUCH RETURN HAS BEE N PAID OR, IF THE ASSETS SEIZED CONSIST OF MONEY, THE ASSESSEE OFFERS THE MO NEY SO SEIZED TO BE ADJUSTED AGAINST THE TAX PAYABLE. (III) EVIDENCE OF TAX PAID IS FURNISHED ALONG WITH THE RE TURN; AND (IV) AN APPEAL IS NOT FILED AGAINST THE ASSESSMENT OF TH AT PART OF INCOME WHICH IS SHOWN IN THE RETURN: PROVIDED FURTHER THAT THE PROVISIONS OF THE PRECEDING PROVI SO SHALL NOT APPLY WHERE THE UNDISCLOSED INCOME DETERMINED BY THE ASSESSING OFFICER IS IN EXCESS OF THE INCOME SHOWN IN THE RETURN AND IN SUCH CASES THE PE NALTY SHALL BE IMPOSED ON THAT PORTION OF UNDISCLOSED INCOME DETERMINED WHICH IS I N EXCESS OF THE AMOUNT OF UNDISCLOSED INCOME SHOWN IN THE RETURN. 6. CAREFUL READING OF SECTION 271AAB OF THE ACT, TH E WORDS USED ARE AO MAY DIRECT AND THE ASSESSEE SHALL PAY BY WAY OF PENAL TY. SIMILAR WORDS ARE USED SECTION 18 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. 158BFA(2) OF THE ACT. THE WORD MAY DIRECT INDICATES THE DISCRETION TO THE AO. FURTHER, SUB SECTION (3) OF SECTION 271AAB OF THE A CT, FORTIFIES THIS VIEW. SUB SECTION (3) OF SECTION 271AAB: THE PROVISIONS OF SECTION 274 AND 275 SHALL, AS FAR AS MAY BE, APPLY IN RELATION TO THE PENALTY REFERRED TO IN THIS SECTION. 7. THE LEGISLATURE HAS INCLUDED THE PROVISIONS OF S ECTION 274 AND SECTION 275 OF THE ACT IN 271AAB OF THE ACT WITH CLEAR INTENTION TO CO NSIDER THE IMPOSITION OF PENALTY JUDICIALLY. SECTION 274 DEALS WITH THE PROCEDURE FO R LEVY OF PENALTY, WHEREIN, IT DIRECTS THAT NO ORDER IMPOSING PENALTY SHALL BE MADE UNLESS THE ASSESSEE HAS BEEN HEARD OR HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HE ARD. THEREFORE, FROM PLAIN READING OF SECTION 271AAB OF THE ACT, IT IS EVIDENT THAT THE PENALTY CANNOT BE IMPOSED UNLESS THE ASSESSEE IS GIVEN A REASONABLE O PPORTUNITY AND ASSESSEE IS BEING HEARD. ONCE THE OPPORTUNITY IS GIVEN TO THE ASSESSE E, THE PENALTY CANNOT BE MANDATORY AND IT IS ON THE BASIS OF THE FACTS AND M ERITS PLACED BEFORE THE A.O. ONCE THE A.O. IS BOUND BY THE ACT TO HEAR THE ASSESSEE A ND TO GIVE REASONABLE OPPORTUNITY TO EXPLAIN HIS CASE, THERE IS NO MANDATORY REQUIREM ENT OF IMPOSING PENALTY, BECAUSE THE OPPORTUNITY OF BEING HEARD AND REASONABLE OPPOR TUNITY IS NOT A MERE FORMALITY BUT IT IS TO ADHERE TO THE PRINCIPLES OF NATURAL JU STICE. HONBLE A.P. HIGH COURT IN THE CASE OF RADHAKRISHNA VIHAR IN ITTA NO.740/2011 WHIL E DEALING WITH THE PENALTY U/S 158BFA HELD THAT WE ARE OF THE OPINION THAT WHILE THE WORDS SHALL BE LIABLE UNDER SUB SECTION (1) OF SECTION 158BFA OF THE ACT THAT A RE ENTITLED TO BE MANDATORY, THE WORDS MAY DIRECT IN SUB SECTION 2 THERE OF INTENDED TO DIRECTORY. IN OTHER WORDS, WHILE PAYMENT OF INTEREST IS MANDATORY LEVY OF PENA LTY IS DISCRETIONARY. IT IS TRITE POSITION OF LAW THAT DISCRETION IS VESTED AND AUTHO RITY HAS TO BE EXERCISED IN A REASONABLE AND RATIONAL MANNER DEPENDING UPON THE F ACTS AND CIRCUMSTANCES OF THE EACH CASE. PLAIN READING OF SECTION 271AAB AND 274 OF THE ACT INDICATES THAT THE IMPOSITION OF PENALTY U/S 271AAB OF THE ACT IS NOT MANDATORY BUT DIRECTORY. ACCORDINGLY WE HOLD THAT THE PENALTY U/S 271AAB IS NOT MANDATORY BUT TO BE IMPOSED ON MERITS OF THE EACH CASE. THUS THE TRIBUNAL HAS HELD THAT THE LEVY OF PENALTY UNDER SECTION 271AAB IS NOT MANDATORY BUT THE AO HAS THE DISCRETION TO TAKE A DECISION AND SHALL BE BASED ON JUDICIOUS DECISION OF THE AO. HENCE WE FOR TIFY OUR VIEW BY THE ABOVE DECISIONS OF TRIBUNAL IN CASE OF ACIT VS. MAR VEL ASSOCIATES. 19 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. THUS THE TRIBUNAL HAS ANALYZED ALL THE RELEVANT PRO VISIONS OF THE ACT AS WELL AS VARIOUS DECISIONS ON THIS POINT INCLUDING THE DE CISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF PR. CIT VS. SANDEEP CHAND AK, 405 ITR 648 (ALLAHABAD) RELIED UPON BY THE LD. D/R AND THEN ARR IVED AT THE CONCLUSION THAT THE PENALTY UNDER SECTION 271AAB IS NOT MANDATORY B UT THE AO HAS THE DISCRETION TO TAKE A DECISION AND THE SAME SHOULD B E BASED ON JUDICIOUS DECISION OF THE AO. ACCORDINGLY FOLLOWING THE EARL IER DECISION OF THIS TRIBUNAL IN THE CASE OF RAVI MATHUR VS. DCIT (SUPRA), WE HOL D THAT THE LEVY OF PENALTY UNDER SECTION 271AAB IS NOT MANDATORY BUT THE AO HA S A DISCRETION AFTER CONSIDERING ALL THE RELEVANT ASPECTS OF THE CASE AN D THEN TO SATISFY HIMSELF THAT THE CASE OF THE ASSESSEE FALLS IN THE DEFINITI ON OF UNDISCLOSED INCOME AS PROVIDED IN THE EXPLANATION TO SECTION 271AAB OF TH E ACT. 5.1. THE SECOND LIMB OF CHALLENGING THE VALIDITY OF INITIATION OF PENALTY PROCEEDINGS FOR NOT SPECIFYING THE GROUND AND DEFAU LT IN THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 274 HAS BEEN CONSIDERED BY THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RAVI MATHUR V S. DCIT (SUPRA) IN PARA IN PARA 7 AS UNDER :- 7. AS REGARDS THE VALIDITY OF NOTICE UNDER SECTION 274 FOR WANT OF SPECIFYING THE GROUND AND DEFAULT, WE FIND THAT WHE N THE BASIC CONDITION OF THE UNDISCLOSED INCOME NOT RECORDED IN THE BOOKS OF ACCOUNTS DOES NOT EXISTS, THEN THE SAME HAS TO BE S PECIFIED BY THE AO IN THE SHOW CAUSE NOTICE AND FURTHER THE AO IS REQU IRED TO GIVE A FINDING WHILE IMPOSING THE PENALTY UNDER SECTION 27 1AAB. EVEN IF THE AO IS SATISFIED AND COME TO THE CONCLUSION THAT THE ASSESSEE HAS NOT RECORDED THE UNDISCLOSED INCOME IN THE BOOKS OF ACC OUNTS OR IN THE OTHER DOCUMENTS / RECORD MAINTAINED IN NORMAL CO URSE RELATING TO SPECIFIED PREVIOUS YEAR, THE SHOW CAUSE NOTICE SHALL ALSO SPECIFY THE DEFAULT COMMITTED BY THE ASSESSEE TO AT TRACT THE PENALTY @ 10% OR 20% OR 30% OF THE UNDISCLOSED INCOME. THER E IS NO DISPUTE THAT THE AO HAS NOT SPECIFIED THE DEFAULT A ND CHARGE AGAINST THE ASSESSEE WHICH NECESSITATED THE LEVY OF PENALTY UNDER SECTION 271AAB OF THE ACT. CONSEQUENTLY, THE ASSESSEE WAS N OT GIVEN AN 20 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. OPPORTUNITY TO EXPLAIN HIS CASE FOR SPECIFIC DEFAUL T ATTRACTING THE LEVY OF PENALTY IN TERMS OF CLAUSES (A) TO (C) OF SECTIO N 271AAB(1) OF THE ACT. THE CHANNAI BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. SHRI R. ELANGOVAN (SUPRA) AT PAGES 7 TO 10 HAS HELD AS U NDER :- IT IS CLEAR FROM THE SUB SECTION (3) OF SECTION 271 AAB THAT SECTIONS 274 AND SECTION 275 OF THE ACT SHALL, SO FAR AS MAY BE, APPLY. SUB SECTION (1) OF SECTION 274 OF THE ACT MANDATES THAT ORDER IMPOSING PENALTY HAS TO BE IMPOSED ONLY AFTER HEARING THE ASSESSEE OR GIVING A ASSESSEE OPPORTUNITY OF HEARING. OPPORTUNITY THAT IS TO BE GIVEN TO THE ASS ESSEE SHOULD BE A MEANINGFUL ONE AND NOT A FARCE. NOTICE ISSUED TO TH E ASSESSEE REPRODUCED (SUPRA), DOES NOT SHOW WHETHER PENALTY PROCEEDINGS WERE INITIATED FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME OR FOR HAVING UNDISCLOSED INCOME WITHIN THE MEANING OF SECTION 271AAB OF THE ACT. NOTICE IN OUR OPINION WAS VAGUE. HONBLE KARNA TAKA HIGH COURT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA) RELYING IN IT S OWN JUDGMENT IN THE CASE OF MANJUNATHA COTTON AND GINNING FACTORY (SUPR A) HAD HELD AS UNDER:- 2. THIS APPEAL HAS BEEN FILED RAISING THE FOLLOWI NG SUBSTANTIAL QUESTIONS OF LAW: (1) WHETHER, OMISSION IF ASSESSING OFFICER TO EXPLICITL Y MENTION THAT PENALTY PROCEEDINGS ARE BEING INITIATED FOR FURNISH ING OF INACCURATE PARTICULARS OR THAT FOR CONCEALMENT OF I NCOME MAKES THE PENALTY ORDER LIABLE FOR CANCELLATION EVEN WHEN IT HAS BEEN PROVED BEYOND REASONABLE DOUBT THAT THE ASSESSEE HA D CONCEALED INCOME IN THE FACTS AND CIRCUMSTANCES OF THE CASE? (2) WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN LAW IN HOLDING THAT THE P ENALTY NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) IS BAD IN LAW AN D INVALID DESPITE THE AMENDMENT OF SECTION 271(1B) WITH RETRO SPECTIVE EFFECT AND BY VIRTUE OF THE AMENDMENT, THE ASSESSIN G OFFICER HAS INITIATED THE PENALTY BY PROPERLY RECORDING THE SAT ISFACTION FOR THE SAME? (3) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN DECIDING THE APPEALS AGAI NST THE REVENUE ON THE BASIS OF NOTICE ISSUED UNDER SECTION 274 WIT HOUT TAKING INTO CONSIDERATION THE ASSESSMENT ORDER WHEN THE ASSESSI NG OFFICER HAS SPECIFIED THAT THE ASSESSEE HAS CONCEALED PARTICULA RS OF INCOME? 21 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTIO N 274 READ WITH SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT T HE ACT) TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E., WHETHER FOR CO NCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS O F INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE, HAS RELI ED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE O F CIT VS. MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDG MENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIA L QUESTION OF LAW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE AP PEAL IS ACCORDINGLY DISMISSED. IN THE EARLIER CASE OF MANJUNATHA COTTON AND GINNIN G FACTORY (SUPRA) THEIR LORDSHIP HAD OBSERVED AS UNDER:- NOTICE UNDER SECTION 274 OF THE ACT SHOULD SPECIF ICALLY STATE THE GROUNDS MENTIONED IN SECTION 271(1)(C), I.E., WHETHER IT IS FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INCORRECT PARTICULARS OF INCOM E. SENDING PRINTED FORM WHERE ALL THE GROUNDS MENTIONED IN SECTION 271 ARE MENTIONED WOULD NOT SATISFY THE REQUIREMENT OF LAW ; THE ASSESSEE SHOULD KNOW THE GROUNDS WHICH HE HAS T O MEET SPECIFICALLY. OTHERWISE, THE PRINCIPLES OF NATURAL JUSTICE ARE OF FENDED. ON THE BASIS OF SUCH PROCEEDINGS, NO PENALTY COULD BE IMPOSED ON TH E ASSESSEE ; ) TAKING UP OF PENALTY PROCEEDINGS ON ONE LIMB AND FINDING THE ASSESSEE GUILTY OF ANOTHER LIMB IS BAD IN LAW ; PENALTY PROCEEDINGS AR E DISTINCT FROM THE ASSESSMENT PROCEEDINGS : THOUGH PROCEEDINGS FOR IMP OSITION OF PENALTY EMANATE FROM PROCEEDINGS OF ASSESSMENT, THEY ARE IN DEPENDENT AND A SEPARATE ASPECT OF THE PROCEEDINGS ; THE FINDINGS RECORDED IN THE ASSESSMENT PROCEEDINGS IN SO FAR AS CONCEALMENT OF INCOME AND FURNISHING OF INCORREC T PARTICULARS WOULD NOT OPERATE AS RES JUDICATA IN THE PENALTY PROCEEDINGS. IT IS OPEN TO THE ASSESSEE TO CONTEST THE PROCEEDINGS ON THE MERITS. HOWEVER, THE VALIDITY OF THE ASSESSMENT OR REASSESSMENT IN PURSUANCE OF WHICH PE NALTY IS LEVIED, CANNOT BE THE SUBJECT MATTER OF PENALTY PROCEEDINGS. THE A SSESSMENT OR REASSESSMENT CANNOT BE DECLARED INVALID IN THE PENA LTY PROCEEDINGS. VIEW TAKEN BY THE HONBLE KARNATAKA HIGH COURT IN T HE ABOVE JUDGMENT WAS INDIRECTLY AFFIRMED BY THE HONBLE APEX COURT, WHEN IT DISMISSED AN SLP FILED BY THE REVENUE AGAINST THE JUDGMENT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA), SPECIFICALLY OBSERVING THAT THERE WAS NO M ERITS IN THE PETITION FILED BY THE REVENUE. CONSIDERING THE ABOVE CITED JUDGMEN TS, WE HOLD THAT THE 22 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. NOTICE ISSUED U/S.274 R.W.S. 271AAB OF THE ACT, REP RODUCED BY US AT PARA 5 ABOVE WAS NOT VALID. EX-CONSEQUENTI, THE PENALTY OR DER IS SET ASIDE. 6. SINCE WE HAVE SET ASIDE THE PENALTY ORDER FOR TH E IMPUGNED ASSESSMENT YEAR, THE APPEAL FILED BY THE REVENUE HAS BECOME IN FRUCTUOUS. IN VIEW OF THE DECISION OF THE CHENNAI BENCH (SUPRA ), THE SHOW CAUSE NOTICE ISSUED BY THE AO IN THE CASE OF THE ASSESSEE IS NOT SUSTAINABLE. WE FURTHER NOTE THAT IN THE CASE IN HAND, THE AO IN THE SHOW CAUSE NOTICE HAS NEITHER SPECIFIED THE GROUNDS AND DEFAULT ON TH E PART OF THE ASSESSEE NOR EVEN SPECIFIED THE UNDISCLOSED INCOME ON WHICH THE PENALTY WAS PROPOSED TO BE LEVIED. FOR READY REFERENCE WE REPRODUCE THE SH OW CAUSE NOTICES ISSUED BY THE AO UNDER SECTION 274 READ WITH SECTION 271AA B ON 30 TH MARCH, 2016 AND 16 TH AUGUST, 2016 AS UNDER :- NO. ACIT/CC-1/JPR/2015-16 DATED : 30.03.2016. PENALTY NOTICE UNDER SECTION 274 READ WITH SECTION 271AAB OF THE INCOME TAX ACT, 1961. PAN ABDPP 7196A TO, SH. PADAM CHAND PUNGALIA, 2372, MSB KA RASTA, JOHARI BAZAR, JAIPUR. WHEREAS IN THE COURSE OF ASSESSMENT PROCEEDINGS BEF ORE ME FOR THE A.Y. 2014-15, IT APPEARS TO ME THAT AS PER SECTIONS 274 AND 275 READ WITH SECTION 271AAB OF THE INCOME-TAX ACT YOU ARE LIABLE FOR PENALTY ON ASSESSED UNDISCLOSED INCOME. YOU ARE HEREBY REQUESTED TO APPEAR BEFORE ME AT MY OFFICE ROOM NO. 103 (NA), N.C.R.B., JAIPUR AT 11.00 A.M. ON 28.04.2 016 AND SHOW CAUSE WHY AN ORDER IMPOSING PENALTY ON YOU SHOULD NOT BE MADE U/S 271AAB R.W.S. 274 OF THE INCOME TAX ACT, 1961. IF YOU DO NOT WISH TO AVAIL YOURSELF OF THIS OPPORTUNITY OF BEING HEARD IN PERSON OR THROUGH AUT HORIZED REPRESENTATIVE, YOU MAY REPLY TO SHOW CAUSE IN WRITING ON OR BEFORE THE SAID DATE WHICH WILL BE CONSIDERED BEFORE ANY SUCH ORDER IS MADE. 23 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. YOURS FAITHFULLY, SD/- ( SUSHIL KUMAR KULHARI ) ASSTT. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1, JAIPUR. NO. ACIT/CC-1/JPR/2016-17/928 DATED : 16.08.201 6. PENALTY NOTICE UNDER SECTION 274 READ WITH SECTION 271AAB OF THE INCOME TAX ACT, 1961. PAN ABDPP 7196A TO, SH. PADAM CHAND PUNGALIA, 2372, MSB KA RASTA, JOHARI BAZAR, JAIPUR. WHEREAS IN THE COURSE OF ASSESSMENT PROCEEDINGS BEF ORE ME FOR THE A.Y. 2014-15, IT APPEARS TO ME THAT AS PER SECTIONS 274 AND 275 READ WITH SECTION 271AAB OF THE INCOME-TAX ACT YOU ARE LIABLE FOR PENALTY ON ASSESSED UNDISCLOSED INCOME. YOU ARE HEREBY REQUESTED TO APPEAR BEFORE ME AT MY OFFICE ROOM NO. 103 (NA), N.C.R.B., JAIPUR AT 11.00 A.M. ON 25.08.2 016 AND SHOW CAUSE WHY AN ORDER IMPOSING PENALTY ON YOU SHOULD NOT BE MADE U/S 271AAB R.W.S. 274 OF THE INCOME TAX ACT, 1961. IF YOU DO NOT WISH TO AVAIL YOURSELF OF THIS OPPORTUNITY OF BEING HEARD IN PERSON OR THROUGH AUT HORIZED REPRESENTATIVE, YOU MAY REPLY TO SHOW CAUSE IN WRITING ON OR BEFORE THE SAID DATE WHICH WILL BE CONSIDERED BEFORE ANY SUCH ORDER IS MADE. YOURS FAITHFULLY, SD/- ( DEVANGI SWARNKAR ) ASSTT. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1, JAIPUR. THUS IT IS CLEAR THAT BOTH THE SHOW CAUSE NOTICES I SSUED BY THE AO FOR INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 271 AAB ARE VERY VAGUE AND SILENT ABOUT THE DEFAULT OF THE ASSESSEE AND FURTHE R THE AMOUNT OF UNDISCLOSED INCOME ON WHICH THE PENALTY WAS PROPOSE D TO BE LEVIED. EVEN THE HONBLE JURISDICTIONAL HIGH COURT IN CASE OF SH EVATA CONSTRUCTION CO. PVT. 24 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. LTD IN DBIT APPEAL NO. 534/2008 DATED 06.12.2016 HA S CONCURRED WITH THE VIEW TAKEN BY HONBLE KARNATAKA HIGH COURT IN CASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY, 359 ITR 565 (KARNATAKA) W HICH WAS SUBSEQUENTLY UPHELD BY THE HONBLE SUPREME COURT BY DISMISSING T HE SLP FILED BY THE REVENUE IN THE CASE OF CIT VS. SSAS EMERALD MEADOW S, 242 TAXMAN 180 (SC). ACCORDINGLY, FOLLOWING THE DECISION OF THE C OORDINATE BENCH AS WELL AS HONBLE JURISDICTIONAL HIGH COURT, THIS ISSUE IS DE CIDED IN FAVOUR OF THE ASSESSEE BY HOLDING THAT THE INITIATION OF PENALTY IS NOT VALID AND CONSEQUENTLY THE ORDER PASSED UNDER SECTION 271AAB IS NOT SUSTAINABLE AND LIABLE TO BE QUASHED. THUS THERE IS A CONSISTENT VIEW TAKEN BY THE TRIBUN AL THAT THE PENALTY UNDER SECTION 271AAB IS NOT MANDATORY BUT THE SAME IS DISCRETIONA RY BECAUSE THE AO IS REQUIRED TO TAKE A DECISION ON THE POINT THAT THE CONDITIONS PROVIDED UNDER SECTION 271AAB ARE SATISFIED TO HOLD THAT THE INCOME DISCLOSED BY THE ASSESSEE IS AN UNDISCLOSED INCOME AND ATTRACTS THE PENALTY AS PER THE SPECIFIC CLAUSES (A) TO (C) OF SUB-SECTION (1) OF SECTION 271AAB OF THE ACT. ACCORDINGLY, FOL LOWING THE EARLIER DECISIONS OF THIS TRIBUNAL WHEREIN THE JUDGMENT OF THE HONBLE ALLAHA BAD HIGH COURT IN CASE OF PCIT VS. SANDEEP CHANDAK, (SUPRA) HAS BEEN CONSIDERED, W E HOLD THAT THE LEVY OF PENALTY U/S 271AAB IS NOT MANDATORY BUT THE AO HAS THE DISC RETION TO TAKE A DECISION AFTER CONSIDERING ALL THE RELEVANT FACTS OF THE CASE AND THEN TO SATISFY HIMSELF THAT THE CASE OF THE ASSESSEE FALLS IN THE DEFINITION OF UNDISCLO SED INCOME AS PROVIDED UNDER THE EXPLANATION TO SECTION 271AAB OF THE ACT. AS REGAR DS THE VALIDITY OF INITIATION OF PENALTY PROCEEDINGS, THE TRIBUNAL IN THE ABOVE CITE D DECISION HAS DECIDED THIS ISSUE BY FOLLOWING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHEVETA CONSTRUCTIONS PVT. LTD. DATED 06.12.2016 IN DBIT AP PEAL NO. 534/2008 AS WELL AS 25 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. OTHER DECISIONS AS RELIED UPON BY THE LD. A/R OF TH E ASSESSEE. WE FIND THAT THE SHOW CAUSE NOTICES ISSUED BY THE AO IN THE CASE BEFORE U S ARE IDENTICAL AS IN THE CASE OF SHRI PADAM CHAND PUNGLIYA. FOR READY REFERENCE, WE REPRODUCE THE SHOW CAUSE NOTICE DATED 15.05.2017 WHICH IS IDENTICAL TO THE S HOW CAUSE NOTICE DATED 14.12.2016 AS UNDER :- NOTICE UNDER SECTION 274 READ WITH SECTION 271 REA D WITH SECTION 271AAB OF THE INCOME TAX ACT, 1961. DATE : 15-05-2017. TO, NAME M/S/SHRI/SMT. MUKUND SHARAN GOYAL ADDRESS 303, AWADH, NEMISAGAR COLONY, VAISHALI NAGAR, JAI PUR. PAN ABIPG 1414D WHEREAS IN THE COURSE OF ASSESSMENT PROCEEDINGS FO R THE AY 2015-16 PENALTY PROCEEDING WERE INITIATED U/S 274 A ND 275 READ WITH THE SECTION U/S 271AAB OF THE IT ACT AND A PENALTY NOTICE WAS ISSUED ACCORDINGLY. YOU ARE HEREBY ALLOWED FURTHER OPPORTUNITY OF BEIN G HEARD AND TO SHOW CAUSE WHY AN ORDER IMPOSING PENALTY ON YOU SHOULD NOT BE MADE U/S 271AAB OF THE INCOME-TAX ACT 1961. IF YOU DO NOT WISH TO AVAIL YOURSELF OF THIS OPPORTUNITY OF BEING HEARD I N PERSON OR THROUGH AUTHORIZED REPRESENTATIVE, YOU MAY SHOW CAUSE IN WR ITING ON OR BEFORE THE DATE FIXED FOR HEARING ON 25.05.2017 AT 11.00 A M WHICH WILL BE CONSIDERED BEFORE ANY SUCH ORDER(S) IS/ARE MADE. (KAMLESH KUMAR MEENA) DY. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2, JAIPUR. 26 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. NOTICE UNDER SECTION 274 READ WITH SECTION 271 RE AD WITH SECTION 271AAB OF THE INCOME TAX ACT, 1961. DATE : 14-12-2016. TO, NAME SHRI MUKUND SHARAN GOYAL ADDRESS 24, GOYAL HOUSE, AJMER ROAD, JAIPUR. PAN ABIPG 1414D WHEREAS IN THE COURSE OF ASSESSMENT PROCEEDINGS FO R THE AY 2015-16 PENALTY PROCEEDING WERE INITIATED U/S 274 A ND 275 READ WITH THE SECTION U/S 271AAB OF THE IT ACT AND A PENALTY NOTICE WAS ISSUED ACCORDINGLY. YOU ARE HEREBY ALLOWED FURTHER OPPORTUNITY OF BEIN G HEARD AND TO SHOW CAUSE WHY AN ORDER IMPOSING PENALTY ON YOU SHOULD NOT BE MADE U/S 271AAB OF THE INCOME-TAX ACT 1961. IF YOU DO NOT WISH TO AVAIL YOURSELF OF THIS OPPORTUNITY OF BEING HEARD I N PERSON OR THROUGH AUTHORIZED REPRESENTATIVE, YOU MAY SHOW CAUSE IN WR ITING ON OR BEFORE THE DATE FIXED FOR HEARING ON 11.01.2017 AT 11.00 A M WHICH WILL BE CONSIDERED BEFORE ANY SUCH ORDER(S) IS/ARE MADE. (KAMLESH KUMAR MEENA) DY. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2, JAIPUR. ON SIMILAR FACTS, THE TRIBUNAL HAS ALREADY DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING THAT THE INITIATION OF PENALTY IS NOT VA LID AND CONSEQUENTLY THE ORDER PASSED UNDER SECTION 271AAB IS NOT SUSTAINABLE AND LIABLE TO BE QUASHED. FOLLOWING THE EARLIER ORDERS AND TAKING A CONSISTENT VIEW, WE HOLD THAT WHEN THE AO HAS FAILED TO SPECIFY THE DEFAULT ATTRACTING THE LEVY OF PENAL TY IN TERMS OF CLAUSES (A) TO (C) OF SECTION 271AAB(1) OF THE ACT, THE SAID SHOW CAUSE N OTICE SUFFERS FROM ILLEGALITY AND CONSEQUENTLY THE ORDER PASSED BY THE AO UNDER SECTI ON 271AAB IS NOT SUSTAINABLE AND LIABLE TO BE QUASHED. 27 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. GROUND NO. 2 IS REGARDING LEVY OF PENALTY UNDER SEC TION 271AAB OF THE ACT REGARDING UNDISCLOSED INCOME ON ACCOUNT OF ADVANCE FOR LAND AND EXCESS JEWELLERY. 6. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT T HE AO WHILE PASSING THE PENALTY ORDER UNDER SECTION 271AAB HAS NOT GIVEN A FINDING THAT THE INCOME DISCLOSED BY THE ASSESSEE IS AN UNDISCLOSED INCOME AS PER DEFINITION PROVIDED IN THE EXPLANATION TO SECTION 271AAB(1) OF THE ACT. HE HA S FURTHER SUBMITTED THAT WHEN THE LEVY OF PENALTY IS NOT MANDATORY BUT TO BE IMPO SED ON MERITS OF EACH CASE, THEN THE AO IS DUTY BOUND TO FIRST HOLD THAT THE INCOME DISCLOSED BY THE ASSESSEE IS UNDISCLOSED INCOME AS PER THE PROVISIONS OF SECTION 271AAB AND THEN TAKE A DECISION OF IMPOSING THE PENALTY. HE HAS REFERRED TO THE RE LEVANT DISCLOSURE MADE BY THE ASSESSEE IN THE STATEMENT RECORDED UNDER SECTION 13 2(4) AND SUBMITTED THAT IT IS A CLEAR CASE OF OBTAINING THE DISCLOSURE FROM THE ASS ESSEE WITHOUT ANY INCRIMINATING MATERIAL DISCLOSING ANY UNDISCLOSED INCOME. THE AL LEGED SEIZED MATERIAL ARE NOTHING BUT CONTAINING SOME IMAGINARY NAMES AND DETAILS AND SOME FIGURES WHICH WERE SPECIFICALLY STATED BY THE ASSESSEE IN HIS STATEMEN T. THE LD. A/R HAS THUS CONTENDED THAT THE SAID SEIZED DOCUMENTS ARE NOTHING BUT DUMB AND DEAF PAPERS WITHOUT INDICATING ANY UNDISCLOSED INCOME OF THE ASSESSEE. THE ASSESSEE HAS SURRENDERED THE INCOME JUST TO BUY PEACE AND AVOID UNNECESSARY LITIGATION, HOWEVER, THERE IS NO IOTA OF EVIDENCE THAT THE SURRENDERED INCOME WAS UN DISCLOSED INCOME OF THE ASSESSEE. ALL THE ENTRIES IN THE SEIZED DOCUMENTS ARE WRITTEN AGAINST SOME IMAGINARY NAMES AND FIGURES AND DO NOT REPRESENT AN Y ACTUAL TRANSACTION BUT ONLY FOR SAKE OF OBTAINING THE SURRENDER FROM THE ASSESS EE, THE SEARCH PARTY HAS FORCED UPON THESE DOCUMENTS ON THE ASSESSEE. THE LD. A/R HAS REFERRED TO THE CBDT 28 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. CIRCULAR NO. 286 OF 2003 DATED 10 TH MARCH, 2003 AND SUBMITTED THAT THE CBDT EXPRESSED ITS CONCERN ABOUT THE PRACTICE OF CONFESS ION OF ADDITIONAL INCOME DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS WHICH DO NOT SERVE ANY USEFUL PURPOSE IN THE ABSENCE OF ANY EVIDENCE OF INCOME WHICH LEAD S TO INFORMATION ON WHAT HAS NOT BEEN DISCLOSED OR IS NOT LIKELY TO BE DISCLOSED . HENCE THE LD. A/R HAS SUBMITTED THAT THE BOARD HAS TIME AND AGAIN ADVISED THE TAXIN G AUTHORITIES TO AVOID OBTAINING AN ADMISSION/CONFESSION OF UNDISCLOSED INCOME UNDER COERCIVE/UNDUE INFLUENCE. HE HAS THEN REFERRED TO THE CIRCULAR DATED 18 TH DECEMBER, 2018 AND SUBMITTED THAT THE CBDT HAS REPEATED ITS EARLIER INSTRUCTIONS. THUS TH E LD. A/R HAS SUBMITTED THAT IN THE ABSENCE OF ANY UNDISCLOSED INCOME INDICATED OR DISC OVERED ON THE BASIS OF SEIZED MATERIAL, THE DISCLOSURE MADE IN THE STATEMENT UNDE R SECTION 132(4) IS NOT SUFFICIENT TO LEVY THE PENALTY UNDER SECTION 271AAB OF THE ACT . IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE FOLLOWING DECISIONS :- RAVI MATHUR VS. DCIT ITA NO. 969/JP/2017 DATED 13.06.2018. DINESH KUMAR AGARWAL VS. ACIT ITA NOS. 855 & 856/JP/2017 DATED 24.07.2018. RAJA RAM MAHESHWARI VS. DCIT ITA NO. 992/JP/2017 DATED 10.01.2019. M/S. RAMBHAJOS VS. ACIT ITA NO. 991/JP/2017 DATED 11.01.2019. RAJENDRA KUMAR GUPTA VS. DCIT ITA NO. 359/JP/2017 DATED 18.01.2019. SHRI PADAM CHAND PUNGLIYA VS. ACIT ITA NO. 112/JP/2018 DATED 05.04.2019. 29 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. THUS THE LD. A/R HAS SUBMITTED THAT EVEN IF THE SEI ZED MATERIAL DISCLOSES SOME OUT- FLOW OF FUNDS FROM THE ASSESSEES HANDS, THE SAME C ANNOT NECESSARILY BE AN INCOME OF THE ASSESSEE. THEREFORE, IN THE ABSENCE OF ANY OTHER MATERIAL OR EVIDENCE TO SHOW THE UNDISCLOSED INCOME OF THE ASSESSEE, ONLY T HE ENTRIES IN THE SEIZED MATERIAL WHICH IS DUMB AND DEAF DOCUMENT CANNOT BE THE BASIS OF LEVY OF PENALTY UNDER SECTION 271AAB OF THE IT ACT. FROM THE SEIZED DOCU MENTS, IT IS APPARENT THAT THERE WAS NO OTHER SUPPORTING CORROBORATED LEGAL DOCUMENT ARY EVIDENCE IN THE SHAPE OF SALE DEED, AGREEMENT OR ANY OTHER SIGNED RECEIPTS F OR ALLEGED ADVANCES. THUS NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH AND SAID EXHIBIT 2 WAS CONTAINING IMAGINARY NAMES AND SOME FIGURES WHICH WETR SPECIFI CALLY STATED BY ASSESSEE IN HIS STATEMENT U/S 132(4) THUS IT WAS A BUNCH OF DUMB WR ITTEN PAPERS. FURTHER THE OFFICERS OF SEARCH PROCEEDINGS AND THE AO ALSO ACCE PTED THAT THE SAME ARE DUMB WRITTEN NAMES, PLACES AND FIGURES AS NO FURTHER ENQ UIRY/INVESTIGATION WAS MADE. THE SURRENDER OF CURRENT YEARS INCOME BY ASSESSEE O F RS. 24,58,50,000/- WAS JUST TO BUY PEACE BY ASSESSEE WHICH ALSO HE CATEGORICALLY S TATED IN STATEMENT U/S 132(4). THUS IT IS ONLY BY ADMISSION OF ASSESSEE UNDER UNDU E PRESSURE BY THE SEARCH TEAM ON WHICH THE ASSESSEE INCLUDED THE SAID AMOUNT IN R ETURN FILED AS HIS INCOME OF CURRENT YEAR AND PAID TAX THEREON. THERE IS NO IOTA OF EVIDENCE THAT SURRENDERED INCOME WAS UNDISCLOSED INCOME. THE REVENUE AUTHORIT IES HAVE EXERTED UNDUE PRESSURE AND OBTAINED THE SURRENDER OF INCOME FROM THE ASSESSEE. FROM THE ASSESSMENT ORDER IT IS CLEAR THAT THE ASSESSEE HAS MAINTAINED A SEPARATE DIARY FOR THE INCOME SURRENDERED DURING THE COURSE OF SEARCH. THE DIARY WAS ALSO MAINTAINING AS BOOKS OF ACCOUNTS. IN THIS DIARY ALL THE ENTRIE S ARE FOR THE CURRENT FINANCIAL YEAR I.E. FROM 16.01.2015 TO 07.03.2015 AND THE DATE OF SEARCH 11.03.2015. ALL THE 30 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. TRANSACTIONS ARE RECORDED. NOTHING ADVERSE WAS FOUN D WHICH SUGGEST THAT THE ASSESSEES INTENTION WAS NOT TO DISCLOSE THE INCOME RECORDED IN THE SEIZED DOCUMENTS. THE SETTLED POSITION OF LAW IS THAT THE POWER TO LEVY PENALTY INHERENTLY HAS POWER NOT TO LEVY PENALTY. THUS, THE LD. CIT (A ) CONFIRMED THE PENALTY UNDER A WRONG NOTION. THE PROVISIONS OF SECTION 271AAB ITS ELF SPEAK THAT THESE ARE NOT MANDATORY. THE REFERENCE IS MADE TO SECTION 271AAB AND SUBMITTED THAT THE TERM THE AO MAY USED IN THE SECTION DOES NOT MAKE THE LEVY OF PENALTY AS MANDATORY. THE SECTION STARTS THAT THE ASSESSING OFFICER MAY DIRECT. THUS IT IS NOT SHALL WHICH WOULD HAVE MADE THE LEVY OF PENALTY MANDATORY . THUS THE LD. CIT (A) WAS WRONG IN OBSERVING THAT LEVY OF PENALTY U/S 271AAB WAS MANDATORY. SECONDLY THE PROVISIONS OF SECTION 271AAB(3) LAY DOWN THAT PENAL TY SHALL BE LEVIED UNDER THE SECTION WITH REFERENCE TO SECTION 274. IN OTHER WOR DS THE PROVISIONS OF SECTION SHALL APPLY IN LEVYING PENALTY UNDER THIS SECTION. SECTIO N 274 SPEAKS THAT NO ORDER IMPOSING PENALTY UNDER THIS CHAPTER SHALL BE MADE U NLESS THE ASSESSEE HAS BEEN HEARD OR HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. THUS HEARING HAS TO BE GIVEN TO THE ASSESSEE BEFORE LEVY OF PENA LTY. THIS ITSELF SHOWS THAT PENALTY IS LEVIABLE ONLY AFTER HEARING THE ASSESSEE AND IN CASE ASSESSEE IS ABLE TO MAKE OUT A CASE BY SHOWING SOME REASONABLE CAUSE OR OTHERWISE THEN PENALTY SHALL NOT BE LEVIABLE. PENALTY IS NOT LEVYABLE AUTOMATIC. THUS THE LD. A/R HAS SUBMITTED THAT IN THE ABSENCE OF ANY UNDISCLOSED ASSET, THE OUT GO ON ACCOUNT OF ADVANCE FOR PURCHASE OF LAND ITSELF DOES NOT REPRESENT THE INCO ME OF THE ASSESSEE. HE HAS REFERRED TO THE DECISION OF COORDINATE BENCH OF THI S TRIBUNAL DATED 18.01.2019 IN CASE OF RAJENDRA KUMAR GUPTA VS. DCIT IN ITA NO. 35 9/JP/2017 AND SUBMITTED THAT THE TRIBUNAL HAS HELD THAT AS PER DEFINITION OF UND ISCLOSED INCOME PROVIDED UNDER 31 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. SECTION 271AAB, THE CASH ADVANCE CANNOT BE STATED T O BE INCOME WHICH IS REPRESENTED BY ANY MONEY, BULLION, JEWELLERY OR OTH ER VALUABLE PARTICLE OR THING. IT IS ONLY AN OUTFLOW OF FUNDS AND IN THE ABSENCE OF ANY CORRESPONDING INFLOW OF FUNDS, THE MERE ENTRY IN THE DIARY OF OUTGO WOULD NOT CONS TITUTE UNDISCLOSED INCOME. 6.1. AS REGARDS THE PENALTY REGARDING EXCESS JEWELL ERY, THE LD. A/R HAS SUBMITTED THAT THE ASSESSEE HAS FURTHER DECLARED A SUM OF RS. 5,19,125/- ON ACCOUNT OF EXCESS GOLD JEWELLERY AND SILVER FOUND DURING THE COURSE O F SEARCH FROM RESIDENCE. IT IS SUBMITTED THAT DURING THE COURSE OF SEARCH TOTAL GO LD JEWELLERY/ORNAMENTS OF NET WEIGHT OF 4548.450 GMS WAS FOUND FROM BEDROOM OF AS SESSEE. THAT TOTAL WEIGHT OF GOLD JEWELLERY/ORNAMENTS AS PER WEALTH TAX RETURN O F ASSESSEES WIFE SMT. REKHA GOYAL WAS 4236 GMS WHICH ALSO INCLUDE 93 GMS JEWELL ERY OF M/S. GOYAL FASHIONS PVT. LTD. (A GROUP COMPANY). COPY OF WEALTH TAX RETURN W AS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THUS THE EXCESS GOLD JEWELL ERY OF 312 GMS WAS DETERMINED BY THE DEPARTMENT. OUT OF SAID EXCESS JEWELLERY OF 312 GMS THE CREDIT OF 100 GMS JEWELLERY WAS GIVEN TO ASSESSEE AS PER CBDT CIRCULA R AND REMAINING 200 GMS OF JEWELLERY VALUED AT RS. 5,19,125/- WAS OFFERED BY A SSESSEE AS HIS ADDITIONAL BUSINESS INCOME IN HIS RETURN OF INCOME FILED FOR THE A.Y. 2 015-16. IN THIS CONNECTION IT IS SUBMITTED THAT THE SAID 200 GMS JEWELLERY PERTAINED TO TWO GRANDSONS OF THE ASSESSEE AND SONS OF SHRI ASHISH GOYAL I.E. SHRI AS HUTOSH GOYAL AND SHRI RADHAV GOYAL. IT IS SUBMITTED THAT THE SAID JEWELLERY ITEM S WERE PERSONAL ITEMS OF THE FAMILY MEMBERS AND HOLDING IS VERY OLD AND REASONABLE LOOK ING TO THE STATUS OF FAMILY. THE SAID ITEMS WERE RECEIVED FROM BOTH SIDES OF RELATIV ES AND FRIENDS AT THE TIME OF MARRIAGE AND THEREAFTER ON VARIOUS OTHER FESTIVALS AND AUSPICIOUS OCCASIONS. IT IS CUSTOMARY IN INDIA SOCIETY THAT EVERY PARENT, FRIEN DS AND RELATIVES TO PRESENT SOME 32 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. GIFTS IN GOLD ETC. TO HER DAUGHTER AND SON-IN-LAW A T THE TIME OF MARRIAGE. THE FAMILY OF ASSESSEE IS REPUTED AND MEANS. THUS LOOKING TO THE STATUS OF THE FAMILY, CUSTOMS OF THE SOCIETY AND OTHER FACTS AND CIRCUMSTANCES, T HE TOTAL SILVER FOUND IS REASONABLE AND SOURCE OF ACQUISITION WAS EXPLAINED. HOWEVER, THE ASSESSEE TO BUY PIECE AND AVOID LITIGATION WITH DEPARTMENT OFFERED THE SAID V ALUATION OF SILVER AS HIS ADDITIONAL BUSINESS INCOME OF THE CURRENT YEAR. HOWEVER, THE D EPARTMENT HAS NOT MADE ANY EFFORTS TO ASCERTAIN THE YEAR OF ACQUISITION OF THE GOLD JEWELLERY AND THEN TO APPLY THE RATES AS PREVAILING IN THE YEAR OF ACQUISITION AND SOME OF THE JEWELLERY EVEN NOT ACQUIRED BY THE ASSESSEE OR THE FAMILY MEMBERS BUT IS INHERITED, THEN THE MANNER IN WHICH THE DISCLOSURE IS OBTAINED ON ACCOUNT OF THE JEWELLERY WOULD NOT REPRESENT THE UNDISCLOSED INCOME AS DEFINED IN THE EXPLANATION TO SECTION 271AAB OF THE ACT. THE AO HAS NOT DETERMINED IT AS INCOME FROM OTHER SOURC ES U/S 69 OF INCOME TAX ACT IN THE ASSESSMENT BUT ACCEPTED AS INCOME OF CURRENT YE AR. THEREFORE, MERELY ON THE BASIS OF SURRENDER MADE IN THE SEARCH STATEMENT, TH IS CANNOT BE HELD AS UNDISCLOSED INCOME FOR THE PURPOSE OF LEVY OF PENALTY UNDER SEC TION 271AAB. THE LD. A/R PLACED RELIANCE ON THE FOLLOWING DECISIONS :- DINESH KUMAR AGARWAL VS. ACIT ITA NOS. 855 & 856/JP/2017 DATED 24.07.2018. SHRI PADAM CHAND PUNGLIYA VS. DCIT ITA NO. 112/JP/2018 DATED 05/04.2019. 7. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T IN THE WRITTEN SUBMISSIONS THE LD. A/R HAS ARGUED THAT THE SURRENDERED INCOME DOES NOT FIT INTO THE DEFINITION OF UNDISCLOSED INCOME AS DEFINED IN SECTION 271AAB O F THE ACT. IT MAY BE MENTIONED 33 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. THAT SUCH PLEA HAS NEVER BEEN RAISED BEFORE THE AO/ CIT (A) AND THUS, THERE IS NO FINDINGS OF THE LOWER AUTHORITIES ON THIS ISSUE. A DMITTEDLY, THOUGH A LEGAL PLEA CAN BE RAISED AT ANY POINT OF TIME BUT ADMITTING THE SA ME WITHOUT GIVING ANY OPPORTUNITY TO THE AO/CIT (A) WOULD BE AGAINST THE PRINCIPLES O F NATURAL JUSTICE. REGARDING THE DISCLOSURE ON ACCOUNT OF ADVANCES (CASH AS WELL AS FOR PURCHASE OF LAND) BY THE ASSESSEE IN HIS STATEMENT RECORDED ON OATH UNDER SE CTION 132(4)/131 OF THE ACT AND AFFIDAVIT, IT HAS BEEN SUBMITTED BY THE LD. A/R THA T OFFICERS OF THE DEPARTMENT DID NOT MAKE ANY FURTHER ENQUIRIES AND THERE WAS NO CORROBO RATING EVIDENCES. SUFFICE IS TO MENTION THAT THE ASSESSEE ON THE BASIS OF THE INCRI MINATING MATERIAL HAS VOLUNTARILY, SURRENDERED UNDISCLOSED BUSINESS INCOME ON ACCOUNT OF SUCH ADVANCES AND THE DEPARTMENTAL OFFICERS ARE NOT REQUIRED FURTHER TO P ROVE ANYTHING, AS THERE IS NO SUCH REQUIREMENT IN LAW. IT IS HUMBLY SUBMITTED THAT IN REPLY TO QUESTION NO. 31 RECORDED UNDER SECTION 132(4), IT HAS BEEN STATED BY THE ASS ESSEE THAT HE WAS NOT HAVING THE ADDRESSES OF THE PERSONS IN WHOSE NAMES AMOUNTS WER E RECORDED IN THE POCKET NOTE BOOK, FOUND AND SEIZED DURING THE COURSE OF SEARCH. THUS, IF THE ASSESSEE HAS NOT PROVIDED THE ADDRESSES OF THE PERSON TO WHOM ADVANC ES HAVE BEEN MADE FOR CASH AND FOR LAND PURCHASE, IT COULD BE PRESUMED THAT TH E REVELATIONS OF THEIR ADDRESSES COULD DO MORE HARM TO HIM AND IT WOULD NOT BE IN HI S INTEREST. NOW, THE ASSESSEE CANNOT TAKE THE PLEA THAT NO FURTHER INQUIRIES WERE MADE BY THE DEPARTMENT. IT WOULD NOT BE OUT OF PLACE TO MENTION HERE THAT IN H IS REPLY TO QUESTION NO. 31 AND 32 IN HIS STATEMENT RECORDED ON OATH, IT HAS BEEN STAT ED BY THE ASSESSEE THAT OUT OF CASH OF RS. 7,28,211/- FOUND DURING THE COURSE OF S EARCH, A SUM OF RS. 7,00,000/- WAS RECEIVED BY HIM ON 09.03.2015 AND THE SAME WAS WRITTEN ON PAGE NO. 6 OF THE POCKET DIARY SEIZED FROM HIS RESIDENCE. IT IS PERTI NENT TO MENTION HERE IN 34 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. QUESTION NO. 30, IT HAS BEEN STATED BY THE ASSESSEE THAT THE TRANSACTIONS IN THE SAID POCKET WAS WRITTEN BY HIM AND HE ADMITT ED THE OWNERSHIP OF THAT DIARY ALSO. FURTHER, AS PER PROVISIONS OF SECT ION 132(4A), THE PRESUMPTION IS THERE THAT 'THE CONTENTS OF SUCH BOO KS OF ACCOUNTS OR OTHER DOCUMENT ARE TRUE'. IT MAY BE HUMBLY SUBMITTED THAT THE GENUINENESS OF THESE TRANSACTIONS HAVE NEVER BEEN RAISED BY THE AS SESSEE AT POINT OF TIME. IN FACT, HIS STATEMENT RECORDED ON OATH U/S 1 31 OF THE ACT AND IN THE AFFIDAVIT, THE ASSESSEE HAS AFFIRMED HIS SURRENDER OF UNDISCLOSED INCOME MADE U/S 132(4) OF THE ACT AND HAS DECLARED THE SAM E IN ITS RETURN OF INCOME AS UNDISCLOSED BUSINESS INCOME. THE LD. D/R SUBMITTED THAT THE WORD 'TRANSACTIONS' IN THE DEFINITION OF UNDISCLOSE D INCOME RELATES TO TRANSACTIONS FOUND DURING THE COURSE OF SEARCH AND NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNTS OR OTHER DOCUMENTS MAINTA INED IN THE REGULAR COURSE OF BUSINESS. IN HIS STATEMENT, IT HAS BEEN C ATEGORICALLY ADMITTED BY THE ASSESSEE THAT THESE TRANSACTIONS WERE NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNTS AND THESE REPRESENT NOTHING BUT HIS UNDISCLOSED BUS INESS INCOME. THE UNDISCLOSED INCOME DECLARED BY THE ASSESSEE ALSO INCLUDES A SUM OF RS. 5,19,125/-, ON ACCOUNT OF EXCESS JEWELRY FOUND DURING THE COURSE O F SEARCH. AN ARGUMENT HAS BEEN TAKEN THAT LOOKING TO THE STATUS OF THE AS SESSEE, SUCH AMOUNT IS NEGLIGIBLE. HE HAS FURTHER SUBMITTED THAT THE DIFFE RENCE IN QUANTITY OF JEWELRY WAS OFFERED BY THE ASSESSEE AFTER CONSIDERI NG HIS WEALTH TAX RECORDS. IT HAS BEEN SUBMITTED BY THE ASSESSEE THA T THE SURRENDER WAS MADE BY THE ASSESSEE TO BUY PEACE OF MIND. IT MAY B E MENTIONED THAT IN 35 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. THE CASE OF MAK DATA (P) LTD. VS. CIT [2013] 358 IT R 593(SC), IT HAS BEEN HELD BY THE HONBLE APEX COURT THAT: THE ASSESSING OFFICER, 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. VOLUNTARY DISCLOSURE DOES NOT RELEASE ASSESSEE FROM MISCHIEF OF PENAL PROCEEDINGS U/S 271(1)(C) OF THE ACT. IT WAS FURTHE R HELD THAT WHERE OFFER OF SURRENDER OF CERTAIN AMOUNT RECEIVED AS S HARE APPLICATION MONEY WAS MADE BY THE ASSESSEE IN VIEW OF DETECTION MADE BY AO IN SEARCH CONDUCTED IN CASE OF ASSESSEES SISTER CONCE RN, SAID SURRENDER OF INCOME NOT BEING VOLUNTARY IN NATURE, AUTHORITIES B ELOW WERE JUSTIFIED IN LEVYING PENALTY U/S 271(1)(C) OF THE ACT. THUS, THE LD. D/R SUBMITTED THAT IN VIEW OF THE ABO VE SUBMISSION, IT IS CRYSTAL CLEAR THAT THE TOTAL UNDISCLOSED INCOME DEC LARED BY THE ASSESSEE U/S 132(4) OF THE ACT IS SQUARELY COVERED BY THE DE FINITION OF UNDISCLOSED INCOME AS REPRODUCED ABOVE. OTHERWISE, IT IS DIFFI CULT TO COMPREHEND UNDER WHAT CONDITIONS AND SITUATIONS, THE INCOME DE CLARED BY THE ASSESSEE WOULD FALL UNDER THE DEFINITION OF UNDISCLOSED INC OME. HE HAS REFERRED TO THE DEFINITION OF UNDISCLOSED INCOME AS PER EXPLANATION TO SECTION 271AAB OF THE ACT. HENCE, HE SUBMITTED THAT THE PENALTY IMPOSED BY THE AO U/S 271AAB OF THE ACT MAY BE SUSTAINED AND THE APPEAL OF THE ASSE SSEE MAY BE DISMISSED. 36 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. DURING THE COURSE OF SEARCH AND SEIZURE AC TION UNDER SECTION 132 OF THE IT ACT, A POCKET DIARY WAS FOUND AND SEIZED CONTAINING THE ENTRIES OF ADVANCES FOR LAND. THE HEADING OF THESE ENTRIES IS LAND ADVANCE IN THE NAME OF CERTAIN PERSONS. HOWEVER, NEITHER ANY PARTICULARS OF THOSE PERSONS A RE MENTIONED NOR THE PARTICULARS OF THE LAND FOR WHICH THE ALLEGED ADVANCE IS GIVEN IS MENTIONED IN THE SEIZED MATERIAL. THE ENTRIES ARE ONLY CERTAIN NAMES, DATES AND AMOUNT. EVEN FROM THE NAMES MENTIONED IN THE DIARY, THE IDENTITY OF THESE PERSONS CANNOT BE ASCERTAINED. SIMILARLY THE DETAILS OF THE LAND ARE ALSO NOT GIVE N IN THE SEIZED MATERIAL. THUS IN THE ABSENCE OF CORRESPONDING ASSET BEING THE LAND ACQUI RED BY THE ASSESSEE OR ANY DOCUMENT EXECUTED BETWEEN THE PARTIES FOR ACQUIRING OF THE LAND, THESE ENTRIES ITSELF DO NOT REPRESENT THE UNDISCLOSED INCOME. AS PER TH E DEFINITION PROVIDED IN THE EXPLANATION TO SECTION 271AAB, IF THE ASSESSEE HAS ACQUIRED AN ASSET WHICH IS DETECTED DURING THE COURSE OF SEARCH AND NOT FOUND RECORDED IN THE BOOKS OF ACCOUNT THEN THE SAID ASSET WOULD BE CONSIDERED AS UNDISCLOSED INCOME BUT IN THE ABSENCE OF THE ASSET IT IS THE MERE NOTING IN THE D IARY WHICH APPEARS TO BE MADE IN ONE GO AND IN THE NAMES OF SOME FICTITIOUS PERSONS WITHOUT HAVING THE MINIMUM PARTICULARS OF IDENTITY. THE DEPARTMENT HAS NOT EV EN TRIED TO ASCERTAIN THE IDENTITY OF THESE PERSONS FOUND IN THE SEIZED MATERIAL AS NO QUESTION WAS ASKED DURING THE STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT. SIMILARLY, NO ATTEMPT WAS MADE TO IDENTIFY THE PARTICULARS OF THE LAND FOR WH ICH THE ALLEGED ENTRIES OF ADVANCES ARE RECORDED IN THE SEIZED DOCUMENT. THUS PRIMA FAC IE IT APPEARS THAT THESE PAPERS ARE THE SEIZED MATERIAL BEING A POCKET DIARY CONTAI NS SOME ARTIFICIAL ENTRIES IN THE NAMES OF ARTIFICIAL PERSONS. THE ENTRIES IN ITSELF DO NOT REVEAL THE REALISTIC 37 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. TRANSACTION IN THE ABSENCE OF THE MINIMUM PARTICULA RS AND DETAILS EITHER OF THE PERSONS OR THE LAND. AN IDENTICAL ISSUE HAS BEEN C ONSIDERED BY THE COORDINATE BENCH OF THIS TRIBUNAL IN CASE OF M/S. RAMBHAJOS V S. ACIT (SUPRA) AS WELL AS SHRI RAJENDRA KUMAR GUPTA VS. DCIT (SUPRA). SUBSEQUENTL Y, THE TRIBUNAL IN CASE OF SHRI PADAM CHAND PUNLIYA VS. ACIT (SUPRA) HAS ALSO CONSI DERED THIS ISSUE IN PARA 8 AS UNDER :- 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. OUT OF THE FOUR ITEMS REPRESENTING THE UNDISCLOSED INCOME DISCLOSED BY THE ASSESSEE DURING THE STATEMENT UNDER SECTION 132(4) OF THE IT ACT, ONLY TWO ITEMS, NAMELY, EXPENDITURE ON HOUSE CONSTRUCTION AND UNDISCLOSED A DVANCES ARE BASED ON THE SEIZED MATERIAL. THE OTHER TWO ITEMS BEING REPRESENTING EXCESS STOCK AND UNDISCLOSED JEWELLERY ARE NOT BASE D ON THE SEIZED DOCUMENTS BUT THESE ARE BASED ON THE VALUATION OF T HE STOCK AS WELL AS THE JEWELLERY FOUND AT THE TIME OF SEARCH AND SEIZU RE ACTION. FIRST, WE TAKE UP THE UNDISCLOSED INCOME ON ACCOUNT OF EXPEND ITURE ON HOUSE CONSTRUCTION OF RS. 2,44,63,575/-, THE RELEVANT ALL EGED SEIZED DOCUMENT IN THIS RESPECT ARE THE ENTRIES IN THE DIA RY ON 04.04.2013, 14.04.2013, 28.04.2013, 28.05.2013 AND 01.06.2013. IT IS PERTINENT TO NOTE THAT ALL THESE NOTINGS ARE DONE DURING THE MON TH OF APRIL, ONE IN MAY AND ONE IN 1 ST JUNE, 2013. THE CONSTRUCTION OF HOUSE IS NOT A TAS K TO BE COMPLETED FROM 1 ST APRIL, 2013 TO 1 ST JUNE, 2013, THAT TOO WHEN THE ALLEGED EXPENDITURE OF RS. 2,44,63,575/- WAS IN CURRED IN RESPECT OF VARIOUS ARTICLES AND CONSTRUCTION MATERIALS. IT APP EARS FROM THE SEIZED DOCUMENTS THAT THESE ARE THE NOTINGS ON THESE 5 PAG ES OF A DIARY ARE DONE IN ONE GO, WHEREAS THE SAID NOTINGS ARE PURPOR TED TO BE ON DIFFERENT DATES OF MONTH OF APRIL, MAY AND JUNE. SO ME OF THE ENTRIES ARE EVEN UNREALISTIC LIKE RS. 15 LACS TOWARDS PURCH ASE OF PAINT. IT IS PERTINENT TO NOTE THAT HOW PAINT IS PURCHASED PRIOR TO THE COMPLETION OF 38 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. CONSTRUCTION AND AS PER THE ENTRIES IN THESE PAPERS THERE IS AN ENTRY OF SOME MARBLE FIXING OF RS. 5 LACS. FROM THESE ENTRI ES IN THE ALLEGED SEIZED MATERIAL, IT IS MANIFEST THAT MOST OF THEM A RE UNREALISTIC AS ENTRY OF RS. 70 LACS IS SHOWN TOWARDS FURNITURE WHICH IS HIGHLY IMPOSSIBLE. ANOTHER ENTRY OF RS. 45 LACS IS SHOWN TOWARDS STEEL . THUS FROM THE NOTINGS OF THESE PAPERS IT IS CLEAR THAT THESE ARE NOT ENTRIES REPRESENTING THE REAL AND ACTUAL TRANSACTIONS. FUR THER, NEITHER DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS NOR EV EN IN THE COURSE OF STATEMENT RECORDED UNDER SECTION 132(4) ANY EFFORTS WERE MADE BY THE SEARCH PARTY TO FIND OUT THE ACTUAL EXISTENCE OF TH ESE ASSETS TOWARDS WHICH THE ALLEGED ENTRIES ARE RECORDED IN THE SEIZE D MATERIAL/PAPERS. THOUGH THE ADMISSION ON THE PART OF THE ASSESSEE IS A RELEVANT EVIDENCE, HOWEVER, WHEN THE ENTRIES/NOTINGS IN THE LOOSE PAPERS ARE APPARENTLY NOT REPRESENTING THE REAL TRANSACTIONS T HEN IT WAS INCUMBENT UPON THE DEPARTMENT TO FIND OUT AND ESTAB LISH THE EXISTENCE OF THESE ASSETS IN THE POSSESSION OF THE ASSESSEE. IN THE ABSENCE OF SUCH EFFORTS AND EVEN ANY QUESTION PUT TO THE ASSES SEE REGARDING THE EXISTENCE OF THESE ASSETS, THESE ENTRIES ALONE WOUL D NOT IPSO FACTO CONSTITUTE UNDISCLOSED INCOME OF THE ASSESSEE. EVE N OTHERWISE, THESE ENTRIES IN ITSELF ARE NOT HAVING ANY INCOME ELEMENT BUT THESE ARE ALL EXPENDITURE ENTRIES AND, THEREFORE, UNTIL AND UNLES S A CORRESPONDING ASSET IS FOUND IN THE POSSESSION OF THE ASSESSEE, T HE ENTRIES ALONE CANNOT BE REGARDED AS REPRESENTING THE UNDISCLOSED INCOME OF THE ASSESSEE. THEREFORE, WHEN THE DURATION OF THE CONST RUCTION PERIOD OF THE HOUSE HAS NOT BEEN ASCERTAINED BY THE DEPARTMEN T, THEN SHOWING THE ENTIRE COST OF CONSTRUCTION WITH IMAGINARY FIGU RES FOR A PERIOD OF 2 MONTH IS NOT JUSTIFIED. EVEN WE FIND THAT THE CONS TRUCTION MATERIAL ENTRIES ARE ON SUBSEQUENT DATES AND FURNITURE AND T V ENTRIES ON THE EARLIER DATES WHICH DO NOT SUPPORT OF THE CASE OF T HE DEPARTMENT THAT THESE ENTRIES/NOTINGS IN THE SEIZED DOCUMENTS REPRE SENTS THE REAL TRANSACTIONS/ASSETS PURCHASED BY THE ASSESSEE OR IN THE POSSESSION OF 39 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. THE ASSESSEE. THE POSSESSION OF THE ASSET WAS A MA TTER OF FACT AT THE TIME OF SEARCH AND IN THE ABSENCE OF SUCH ASSET EIT HER FOUND OR OTHERWISE DISCOVERED DURING THE COURSE OF SEARCH AN D SEIZURE, THESE ENTRIES IN THE SEIZED DOCUMENTS WOULD NOT CONSTITUT E UNDISCLOSED INCOME ON ACCOUNT OF EXPENDITURE IN CONSTRUCTION OF THE HOUSE. SIMILARLY, THE ENTRIES IN RESPECT OF ADVANCES OF RS . 5,62,000/- ALSO VERY VAGUE AND AMBIGUOUS NOT GIVING ANY DETAILS ABOUT TH E PURPOSE OR DATE ON WHICH THESE ADVANCES WERE GIVEN. ONLY A DATE IS MENTIONED AT THE BOTTOM OF THE PAGE BUT NOT AGAINST EACH AND EVERY E NTRY OF THE PAGE. FURTHER, WE NOTE THAT THE DEPARTMENT HAS NOT TRIED TO ASCERTAIN THE FULL PARTICULARS OF THE ALLEGED PERSONS WHOSE NAMES ARE NOTED IN THE SEIZED DOCUMENTS AGAINST CERTAIN AMOUNTS WHICH ARE CONSIDE RED AS ADVANCES GIVEN BY THE ASSESSEE. IT IS PERTINENT TO NOTE THA T WITHOUT ASCERTAINING THE FULL PARTICULARS OF THE PERSONS IN WHOSE NAMES THE ENTRIES ARE MADE, IT IS POSSIBLE THAT ALL THESE NAMES ARE ONLY IMAGINARY AND NOT THE NAMES OF ANY EXISTING PERSONS. THEREFORE, THES E VAGUE ENTRIES ITSELF DO NOT REPRESENT THE REAL TRANSACTION AND CO NSEQUENTLY THE UNDISCLOSED INCOME OF THE ASSESSEE. THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RAJENDRA KUMAR GUPTA VS. DC IT (SUPRA) HAS CONSIDERED THE ISSUE OF OUT FLOW OF FUNDS FROM THE ASSESSEE CAN BE AN UNDISCLOSED INCOME FOR THE PURPOSE OF SECTION 271AA B OF THE ACT IN PARA 21 AS UNDER :- 21. DURING THE COURSE OF SEARCH, A NOTE BOOK (DIA RY) HAS BEEN FOUND REFERRED TO AS ANN. AS WHEREIN THERE ARE CERTAIN NOTINGS RELATING TO CASH ADVANCES GIVEN TO VARIOUS PERSONS TOTALING TO RS 82,80,000. REFERRING TO THE STATEMENT OF THE ASSESSEE IN RESPECT OF THESE NOTIN GS RECORDED U/S 132(4), LD CIT(A) HAS GIVEN A FINDING THAT THE ASSESSEE HAS GIVEN A GENERALIZED STATEMENT WITH OUT SPECIFYING THE COMPLETE PARTICULARS OF PERSONS TO W HOM 40 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. LOANS WERE GIVEN AND ALSO FAILED TO SUBSTANTIATE TH E SAME. THE SAID FINDINGS HAVE NOT BEEN DISPUTED BY THE REV ENUE AND THEREFORE, MERELY BASED ON SURRENDER AND GENERA LIZED STATEMENT OF THE ASSESSEE, IN ABSENCE OF ANYTHING S PECIFIC TO CORROBORATE SUCH ENTRIES, CAN IT BE SAID THAT SU CH ENTRIES/NOTINGS REPRESENT UNDISCLOSED INCOME OF THE ASSESSEE. AS PER THE DEFINITION OF UNDISCLOSED INC OME U/S 271AAB, THE SAID CASH ADVANCES CANNOT BE STATED TO BE INCOME WHICH IS REPRESENTED BY ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING. WHETHER IT CAN THEN BE SAID THAT SUCH UNDISCLOSED CASH ADVANCES REPRESENTS INCO ME BY WAY OF ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUM ENTS OR TRANSACTIONS FOUND IN THE COURSE OF A SEARCH UNDER SECTION 132. A CASH ADVANCE PER SE REPRESENTS AN OUTFLOW OF FUND S FROM THE ASSESSEES HAND AND AN INCOME PER SE REPRESENTS AN INFLOW OF FUNDS IN THE HANDS OF THE ASSESSEE. THEREFORE, ONC E THERE IS AN INFLOW OF FUNDS BY WAY OF INCOME, THERE CAN BE SUBS EQUENT OUTFLOW BY WAY OF AN ADVANCE TO ANY THIRD PARTY. G IVING AN ADVANCE AND INCOME THUS CONNOTES DIFFERENT MEANING AND CONNOTATION AND THUS CANNOT BE USED INTER-CHANGEABL Y. IN THE DEFINITION OF UNDISCLOSED INCOME, WHERE IT TALKS AB OUT INCOME BY WAY OF ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHE R DOCUMENTS OR TRANSACTIONS FOUND IN THE COURSE OF A SEARCH UND ER SECTION 132, WHAT PERHAPS HAS BEEN ENVISAGED BY THE LEGISL ATURE IS AN INFLOW OF FUNDS IN THE HANDS OF THE ASSESSEE WHICH HAS BEEN FOUND BY WAY OF ANY ENTRY IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS, AND WHICH HAS NOT BEEN RECORDED BEFORE T HE DATE OF SEARCH IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS MAINTAINED BY THE ASSESSEE IN THE NORMAL COURSE AND NOT VICE-V ERSA. WE ARE ALSO CONSCIOUS OF THE FACT THAT THERE ARE DEEMING P ROVISIONS IN TERMS OF SECTION 69 AND 69B WHEREIN SUCH AMOUNTS MA Y BE 41 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. DEEMED AS INCOME IN ABSENCE OF SATISFACTORY EXPLANA TION. IN OUR VIEW, THE DEEMING FICTION SO ENVISAGED UNDER SE CTION 69 AND SECTION 69B CANNOT BE EXTENDED AND APPLIED AUTO MATICALLY IN CONTEXT OF SECTION 271AAB. IT IS A WELL-SETTLED LEGAL PROPOSITION THAT THE DEEMING PROVISIONS ARE LIMITED FOR THE PURPOSES THAT HAVE BEEN BROUGHT ON THE STATUTE BOOK AND HAVE THEREFORE TO BE APPLIED IN THE CONTEXT OF PROVISION S WHEREIN THEY HAVE BEEN BROUGHT ON THE STATUE BOOK AND NOT OTHERW ISE. IN THE INSTANT CASE, THE DEEMING PROVISIONS CONTAINED IN SECTION 69 AND SECTION 69B COULD HAVE BEEN APPLIED IN THE CONT EXT OF BRINGING TO TAX SUCH INVESTMENTS TO TAX IN THE QUAN TUM PROCEEDINGS, THOUGH THE FACT OF THE MATTER IS THAT THE AO HAS NOT EVEN INVOKED THE SAID DEEMING PROVISIONS IN THE QUANTUM PROCEEDINGS. THEREFORE, EVEN ON THIS ACCOUNT, THE D EEMING FICTION CANNOT BE EXTENDED TO THE PENALTY PROCEEDIN GS WHICH ARE SEPARATE AND DISTINCT FROM THE ASSESSMENT PROCEEDIN GS AND MORE SO, WHERE THE PROVISIONS OF SECTION 271AAB PRO VIDE FOR A SPECIFIC DEFINITION OF UNDISCLOSED INCOME. WHERE A SPECIFIC DEFINITION OF UNDISCLOSED INCOME HAS BEEN PROVIDED IN SECTION 271AAB, BEING A PENAL PROVISION, THE SAME MUST BE S TRICTLY CONSTRUED AND IN LIGHT OF SATISFACTION OF CONDITION S SPECIFIED THEREIN AND IT IS NOT EXPECTED TO EXAMINE OTHER PRO VISIONS WHERE THE SAME HAS BEEN DEFINED OR DEEMED FOR THE PURPOSE S OF BRINGING THE AMOUNT TO TAX. IN LIGHT OF THE SAME, THE UNDISCLOSED INVESTMENT BY WAY OF ADVANCES CAN BE SU BJECT MATTER OF ADDITION IN THE QUANTUM PROCEEDINGS, AS T HE SAME HAS BEEN SURRENDERED DURING THE COURSE OF SEARCH IN THE STATEMENT RECORDED U/S 132(4) AND OFFERED IN THE RETURN OF IN COME, HOWEVER THE SAME CANNOT BE SAID TO QUALIFY AS AN UN DISCLOSED INCOME IN THE CONTEXT OF SECTION 271AAB READ WITH T HE 42 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. EXPLANATION THERETO AND PENALTY SO LEVIED THEREON D ESERVED TO BE SET-ASIDE. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE DECISION OF THE COORDINATE BENCH OF THIS TRI BUNAL IN THE CASE OF RAJENDRA KUMAR GUPTA VS. DCIT (SUPRA), WE HOLD THAT THE ENTRIES IN THE SEIZED DOCUMENTS REPRESENTING THE EXPENDITURE O N ACCOUNT OF CONSTRUCTION OF THE HOUSE AND PURCHASE OF OTHER ASS ETS AS WELL AS ADVANCES IN THE ABSENCE OF THE REAL TRANSACTIONS DO NOT CONSTITUTE THE UNDISCLOSED INCOME OF THE ASSESSEE AS DEFINED IN TH E EXPLANATION TO SECTION 271AAB OF THE ACT. ACCORDINGLY, THE PENALT Y LEVIED UNDER SECTION 271AAB IN RESPECT OF THE SAID AMOUNT IS NO T SUSTAINABLE AND LIABLE TO BE SET ASIDE. ACCORDINGLY IN VIEW OF THE CONSISTENT VIEW TAKEN BY THE TRIBUNAL, THE PENALTY LEVIED IN RESPECT OF THE INCOME DISCLOSED ON ACCOUNT OF LA ND ADVANCE IS NOT SUSTAINABLE AND THE SAME IS DELETED. 9. AS REGARDS THE PENALTY LEVIED ON ACCOUNT OF INCO ME DISCLOSED FOR EXCESS JEWELLERY FOUND DURING THE SEARCH, THERE IS NO DISP UTE THAT THE JEWELLERY WAS FOUND AT THE RESIDENCE OF THE ASSESSEE AND THE DEPARTMENT HAS NOT DISPUTED THAT THE JEWELLERY IN QUESTION BELONGS TO THE ASSESSEE AND O THER FAMILY MEMBERS OF THE ASSESSEE. THE LD. A/R OF THE ASSESSEE HAS SUBMITTE D THAT WHILE CONSIDERING THE UNDISCLOSED INCOME ON ACCOUNT OF EXCESS JEWELLERY, THE DEPARTMENT HAS NOT GIVEN THE BENEFIT OF CBDT INSTRUCTION NO. 1916 FOR ALL TH E FAMILY MEMBERS OF THE ASSESSEE. HE HAS RELIED UPON THE DECISION OF COORDINATE BENCH OF THIS TRIBUNAL DATED 30.05.2019 IN CASE OF SHRI VIMAL CHAND SURANA VS. D CIT IN ITA NO. 304/JP/2018. 43 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. 10. THE LD. D/R HAS OBJECTED TO THE SAID CLAIM OF T HE ASSESSEE AND SUBMITTED THAT THE JEWELLERY ALREADY DECLARED IN THE WEALTH-TAX RE TURN WAS EXCLUDED WHILE COMPUTING THE EXCESS JEWELLERY FOUND DURING THE SEA RCH. THEREFORE, FURTHER BENEFIT OF CBDT INSTRUCTION CANNOT BE GIVEN. 11. AT THE OUTSET, WE NOTE THAT WHEN THE JEWELLERY WAS FOUND AT THE RESIDENCE OF THE ASSESSEE AND ALSO ACCEPTED AS BELONGING TO THE FAMILY MEMBERS AS THE DEPARTMENT HAS ALREADY ALLOWED THE CREDIT OF THE JE WELLERY DECLARED IN THE WEALTH-TAX RETURN BY THE FAMILY MEMBERS THEN THE BENEFIT OF TH E CBDT INSTRUCTION NO. 1916 DATED 11.05.1994 SHALL ALSO BE GIVEN IN RESPECT OF ALL FAMILY MEMBERS. AN IDENTICAL ISSUE HAS BEEN CONSIDERED BY THIS TRIBUNAL IN CASE OF SHRI VIMAL CHAND SURANA VS. DCIT IN ITA NO. 304/JP/2018 VIDE ORDER DATED 30.05. 2019 IN PARA 17 AS UNDER :- 17. WE FURTHER NOTE THAT THERE WAS A DISCLOSURE ON ACCOUNT OF EXCESS JEWELLERY FOUND AT THE RESIDENCE. THE DEPAR TMENT HAS GIVEN THE BENEFIT OF CBDT INSTRUCTION NO. 1916 DATED 11.0 5.1994 IN RESPECT OF THE ASSESSEE AND HIS WIFE BUT THE OTHER FAMILY M EMBERS OF THE ASSESSEE WERE OVER LOOKED SO FAR AS THE BENEFIT OF THE SAID INSTRUCTION OF CBDT WAS CONCERNED. THERE IS NO DISPUTE THAT THE FAMILY OF THE ASSESSEE CONSISTING OF ASSESSEE, HIS WIFE, HIS SON, DAUGHTER-IN-LAW, MARRIED DAUGHTER, 2 GRANDCHILDREN, GRANDDAUGHTER-IN -LAW AND TWO GREAT GRANDSONS. CONSIDERING THE MARRIED WOMEN IN THE FAMILY AND ONE MARRIED GIRL AS WELL AS THE MALE MEMBERS, WE FI ND THAT THE BENEFIT OF THE CIRCULAR/INSTRUCTION NO. 1916 DATED 11.05.19 94 SHALL BE GIVEN IN RESPECT OF ALL THE FAMILY MEMBERS. THE LD. A/R OF THE ASSESSEE HAS RELIED UPON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CASE OF CIT VS. SATYA NARAIN PATNI, 366 ITR 325 (RAJ.) WHER EIN THE HONBLE HIGH COURT HAS HELD IN PARA 12 & 13 AS UNDER :- 44 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. 12. IT IS TRUE THAT THE CIRCULAR OF THE CBDT, REFERRED TO SUPRA DT. 11/05/1994 ONLY REFERS TO THE JEWELLERY TO THE EXTE NT OF 500 GMS PER MARRIED LADY, 250 GMS PER UNMARRIED LADY AND 100 GM S PER MALE MEMBER OF THE FAMILY, NEED NOT BE SEIZED AND IT DOE S NOT SPEAK ABOUT THE QUESTIONING OF THE SAID JEWELLERY FROM THE PERS ON WHO HAS BEEN FOUND WITH POSSESSION OF THE SAID JEWELLERY. HOWEVE R, THE BOARD, LOOKING TO THE INDIAN CUSTOMS AND TRADITIONS, HAS F AIRLY EXPRESSED THAT JEWELLERY TO THE SAID EXTENT WILL NOT BE SEIZED AND ONCE THE BOARD IS ALSO OF THE EXPRESS OPINION THAT THE SAID JEWELLERY CANNOT BE SEIZED, IT SHOULD NORMALLY MEAN THAT ANY JEWELLERY, FOUND IN P OSSESION OF A MARRIED LADY TO THE EXTENT OF 500 GMS, 250 GMS PER UNMARRIED LADY AND 100 GMS PER MALE MEMBER OF THE FAMILY WILL ALSO NOT BE QUESTIONED ABOUT ITS SOURCE AND ACQUISATION. WE CAN TAKE NOTIC E OF THE FACT THAT AT THE TIME OF WEDDING, THE DAUGHTER/DAUGHTER-IN-LAW R ECEIVES GOLD ORNAMENTS JEWELLERY AND OTHER GOODS NOT ONLY FROM P ARENTAL SIDE BUT IN-LAWS SIDE AS WELL AT THE TIME OF 'VIDAI' (FAREWE LL) OR/AND AT THE TIME WHEN THE DAUGHTER-IN-LAW ENTERS THE HOUSE OF HER HU SBAND. WE CAN ALSO TAKE NOTICE OF THE FACT THAT THEREAFTER ALSO, SHE C ONTINUES TO RECEIVE SOME SMALL ITEMS BY VARIOUS OTHER CLOSE FRIENDS AND RELATIVES OF BOTH THE SIDES AS WELL AS ON THE AUSPICIOUS OCCASION OF BIRTH OF A CHILD WHETHER MALE OR FEMALE AND THE CBDT, LOOKING TO SUC H CUSTOMS PREVAILING THROUGHOUT INDIA, IN ONE WAY OR THE ANOT HER, CAME OUT WITH THIS CIRCULAR AND WE ACCORDINGLY ARE OF THE FIRM OP INION THAT IT SHOULD ALSO MEAN THAT TO THE EXTENT OF THE AFORESAID JEWEL LERY, FOUND IN POSSESSION OF THE VAROIUS PERSONS, EVEN SOURCE CANN OT BE QUESTIONED. IT IS CERTAINLY 'STRIDHAN' OF THE WOMAN AND NORMALLY N O QUESTION AT LEAST TO THE SAID EXTENT CAN BE MADE. HOWEVER, IF THE AUT HORIZED OFFICERS OR/AND THE ASSESSING OFFICERS, FIND JEWELLERY BEYON D THE SAID WEIGHT, THEN CERTAINLY THEY CAN QUESTION THE SOURCE OF ACQU ISATION OF THE JEWELLERY AND ALSO IN APPROPRIATE CASES, IF NO PROP ER EXPLANATION HAS BEEN OFFERED, CAN TREAT THE JEWELLERY BEYOND THE SA ID LIMIT AS UNEXPLAINED INVESTMENT OF THE PERSON WITH WHOM THE SAID JEWELLERY HAS BEEN FOUND. 13. ADMITTEDLY, LOOKING TO THE STATUS OF THE FAMILY AN D THE JEWELLERY FOUND IN POSSESSSION OF FOUR LADIES, WAS HELD TO BE REASONABLE AND THEREFORE, THE AUTHORIZED OFFICERS, IN THE FIRST IN STANCE, DID NOT SEIZE THE SAID JEWELLERY AS THE SAME BEING WITHIN THE TOLERAB LE LIMIT OR THE LIMITS PRESCRIBED BY THE BOARD AND THUS, IN OUR VIEW, SUBS EQUENT ADDITION IS ALSO NOT JUSTIFICABLE ON THE PART OF THE ASSESSING OFFICER AND RIGHTLY DELETED BY BOTH THE TWO APPELLATE AUTHORITIES NAMEL Y' CIT(A) AS WELL AS THE TRIBUNAL. ACCORDINGLY AFTER GIVING THE BENEFIT OF THE CBDT IN STRUCTION NO. 1916 AND THE STATUS OF THE ASSESSEES FAMILY, THE JEWELL ERY FOUND FROM THE RESIDENCE AND LOCKER OF THE ASSESSEE CANNOT BE CONS IDERED AS EXCESS OF 45 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. THE NORMAL POSSESSION OF THIS JEWELLERY. THEREFORE , EVEN IF THE ASSESSEE HAS DISCLOSED THE UNDISCLOSED INCOME IN TH E STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT BUT FOR TH E PURPOSE OF LEVY OF PENALTY UNDER SECTION 271AAB, ALL THESE FACTS ARE R EQUIRED TO BE TAKEN INTO ACCOUNT. ONCE ALL THESE FACTS ARE CONSIDERED, THEN THE SAID JEWELLERY FOUND AT THE TIME OF SEARCH AND SEIZURE A CTION CANNOT BE HELD AS UNDISCLOSED INCOME. THEREFORE, IRRESPECTIVE OF THE INCOME DISCLOSED BY THE ASSESSEE IN THE STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT, THE AO IS REQUIRED TO CONSIDER THE BENEFIT OF CBDT INSTRUCTION NO. 1916 DATED 11.05.1994 AT TH E TIME OF LEVYING THE PENALTY UNDER SECTION 271AAB. SUCH BENEFIT OF CBDT INSTRUC TION HAS TO BE ALLOWED IN RESPECT OF ALL THE FAMILY MEMBERS. ONCE THE BENEFI T IS GIVEN AS PER THE CBDT INSTRUCTION IN RESPECT OF THE QUANTITY OF THE GOLD BEING 500 GRAMS PER MARRIED LADY, 250 GRAMS PER UNMARRIED LADY AND 100 GRAMS PER MALE MEMBER OF THE FAMILY, THEN THE EXCESS JEWELLERY TREATED FOR UNDISCLOSED INCOME WILL NOT SURVIVE. ACCORDINGLY, THE PENALTY LEVIED BY THE AO IN RESPECT OF THE EXCESS J EWELLERY WITHOUT GIVING THE BENEFIT OF CBDT INSTRUCTION NO. 1916 IS NOT SUSTAINABLE. T HE SAME IS DELETED. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23/09/2 019. SD/- SD/- ( JES'K LH- 'KEKZ ) ( FOT; IKY JKWO (RAMESH C. SHARMA ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 23/09/2019. DAS/ 46 ITA NO. 293/JP/2018 SHRI MUKUND SHARAN GOYAL, JAIPUR. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI MUKUND SHARAN GOYAL, JAIPUR . 2. THE RESPONDENT THE DCIT CENTRAL CIRCLE-2, JAIP UR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 293/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR