Shri Hiteshbhai Mulchand Doshi, RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Central Circle-1, RAJKOT-GUJARAT

ITA 371/RJT/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0085 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 09-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGESH PANDEY
• Assessee Lawyers: MJ RANPURA
• Keywords: Income from undisclosed sources; Search and seizure
• Section: 153A; 132; 139; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: SHRI S. S. GODARA, JUDICIAL MEMBER AND S H RI AMARJIT SINGH , ACCOUNTANT MEMBER [CONDUCTED THROUGH E - COURT AT AHMEDABAD] HITESH MULCHAND DOSHI, C/O HAPPINESS GENERAL STORES, OPP. GUNDAWADI POLICE CHOWKI, RAJKOT PAN:ABQPD7425D (APPELLANT) VS THE ACIT, CC - 1, RAJKOT (RESPONDENT) REVENUE BY : S H RI YOGESH PANDEY, CIT - D . R. ASSESSEE BY: S H RI M.J. RANPURA , A.R. DATE OF HEARING : 05 - 10 - 2 016 DATE OF PRONOUNCEMENT : 09 - 11 - 2 016 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THI S ASSESSEE S APPEAL FOR A.Y. 2010 - 11 , AR ISES FROM ORDER OF THE CIT(A) - IV, AHMEDABAD DATED 14 - 08 - 2013 IN APPEAL NO. CIT(A) - IV / 36/RJT/CC - 1/12 - 13 , IN PROCEEDINGS UNDER SECTION 271AAA OF THE INCOME T AX ACT, 1961; IN SHORT THE ACT . I T A NO . 371 / RJT /20 13 A SSESSMENT YEAR 2010 - 11 I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 2 2. THE ASSSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. THE GROUNDS OF APPEAL MENTIONED HEREUNDER ARE WITHOUT PREJUDICE TO ONE ANOTHER. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - IV, AHMEDABAD ERRED ON FA CTS AS ALSO IN LAW IN HOLDING THAT APPELLANT IS NOT ELIGIBLE TO AVAIL IMMUNITY U/S. 271AAA(2) OF THE ACT AND THEREBY CONFIRMING THE LEVY OF PEN ALTY U/S. 271AAA OF THE ACT OF RS. 27,20,443/ - . THE PENALTY U/S. 271 AAA OF THE ACT MAY KINDLY BE DELETED. 3. IN THIS CASE, A SEARCH ACTION U/S. 132 OF THE ACT WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 15 TH SEPTEMBER, 2010. DURING THE COURSE OF SEARCH, VARIOUS MATERIALS WERE FOUND AND SEIZED, THEREFORE, PROCEEDINGS U/S. 153A OF THE ACT WAS INITIATED FOR ASSESSMENT YEAR 2004 - 05 TO 2009 - 10. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRAVEL AGENT AND BROKER. AFTER VERIFICATION, THE TOTAL INCOME WAS DETERMINED AT RS. 2 , 72 , 04 , 430/ - BY THE ASSESSING OFFICER. SINCE THE ASSESSE HAS MADE DISCLOSURE OF UNACCOUNTE D INCOME , THEREFORE, THE AO INITIATED PENALTY U/S. 271AAA OF THE ACT. THE ASSESSING OFFICER OBSERVED THAT IN THE RETURN OF INCOME ASSESSEE HAD OFFERED INCOME TO THE TUNE OF RS. 2 , 72 , 04 , 430/ - BUT NO TAX WAS PAID ON THE SAID INCOME. IN CONSEQUENT THE AO HAS ISSUED A SHOW CAUSE NOTICE FOR FURNISHING OF EXPLANATION TO WHY P ENALTY U/S. 271AAA SHOULD NOT TO BE LEVIED . T HE ASSESSEE HAS SUBMITTED HIS EXPLANATION TO THE SHOW CAUSE NOTICE OF THE ASSESSING OFFICER WHICH IS REPRODUCED UNDER: - A I HAVE BEEN SE RVED WITH YOUR ABOVE NOTICE REQUIRING ME TO SHOW CAUSE AS TO WHY THE PENALTY U/S. 271AAA OF THE INCOME TAX ACT, 1961 SHOULD NOT BE LEVIED FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. IN THIS REGARD, IT IS SUBMITTED THAT THE PENALTY U/S. I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 3 271AAA OF THE ACT C AN BE LEVIED ON THE UNDISCLOSED INCOME, WHEREAS IN MY CASE NOTHING IS UNDISCLOSED AND THEREFORE NO PENALTY CAN BE LEVIED U/S. 271AAA OF THE ACT. IT IS A FACT ON RECORD THAT THE SOURCE OF INCOME IN MY CASE WAS MAINLY FROM COMMISSION AND INTEREST FOR ARRANGI NG FINANCIAL FACILITIES TO THE PARTIES AND ACT AS A MEDIATOR BETWEEN THE TWO PARTIES. ALL THE RELEVANT MATERIALS AUTHENTICATING THIS FACT ARE ON RECORD. THUS, THE SOURCED OF INCOME HAS DULY BEEN RECORDED IN THE DIARIES, OTHER SUBSIDIARY RECORDS ETC AND THE REFORE IT CANNOT BE SAID THAT INCOME RETURNED IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION IS UNDISCLOSED INCOME. WITHOUT PREJUDICE TO THE ABOVE, SEARCH AND SEIZURE OPERATION U/S. 132 OF THE ACT WAS CARRIED OUT AT MY RESIDENTIAL PREMISES ON 15 .9.2009. DURING THE COURSE OF SEARCH, MY STATEMENT WAS RECORDED WHEREIN I HAD ADMITTED INCOME TO THE TUNE OF RS 60 LACS. HOWEVER, LATER ON VERIFICATION OF THE MATERIAL SEIZED AND AFTER MAKING PROPER WORKING I HAD ADMITTED INCOME OF RS 3.60 CRORES AS MY COM MISSION AND INTEREST INCOME EARNED FROM FINANCIAL ACTIVITIES ON AD HOC BASIS AND BIFURCATED THE SAME INTO DIFFERENT ASSESSMENT YEARS, AND CONSIDERED INCOME OF RS 2.74 CRORES FOR THE ASSESSMENT YEAR UNDER CONSIDERATION AND AS THE INCOME ADMITTED HAS DULY BE EN CONSIDERED IN THE RETURN OF INCOME FILED ON 31.8.2010. IN VIEW OF THE ABOVE, AS I HAVE ADMITTED THE INCOME ON AD HOC BASIS, EXPLAINED THE MANNER OF EARNING AND PAID THE TAXES TO THE EXTENT POSSIBLE AS SUBSTANTIAL ASSETS ARE UNDER SEIZURE, COULD NOT PAI D TAX DUE TO THE ACTION OF THE DEPARTMENT. YOU ARE THEREFORE REQUESTED TO DROP THE PENALTY PROCEE DING U/S. 271AAA OF THE ACT. 4. THE ASSESSING OFFICER HAS NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE AND STATED TH AT FOLLOWING PROVISION OF SECTION 271 AAA WERE ATTRACTED : - (A) WHERE THE UNDISCLOSED INCOME OFFERED IS OTHER THAN THE AMOUNT COVERED IN THE STATEMENT RECORDED U/S 132(4) AND I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 4 (B) THOUGH AMOUNT IS DECLARED IN THE STATEMENT RECORDED U/S 132(4) BUT THE ASSESSEE HAS NOT SPECIFIED THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; AND (C) WHERE THE ASSESSEE FAILS TO SUBSTANTIATE THE MANNER IN WHICH SUCH INCOME IS DERIVED; AND (D) WHERE THE ASSESSEE FAILED TO PAY THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME T HE AS SESSING OFFICER OBSERVED THAT ASSESSEE WAS NOT ELIGIBLE AND IMMUNITY IS AVAILABLE TO THE ASSESSEE IF ALL THE ABOVE CONDITIONS ARE CUMULATIVELY FULFILLED. HE ALSO STATED THAT I N THE PRESENT CASE IN THE STATEMENT RECORDED U/S. 132(4), ASSESSEE HAD ADMITTED A SUM OF RS. 60 LACS AS HIS UNACCOUNTED INCOME WHEREAS SUCH DISCLOSURE OF UNACCOUNTED INCOME WAS WORKED OUT TO RS. 272.4 LACS IN THE RETURN OF INCOME FILED BY THE ASSESSEE . FURTHER, THIS IMMUNITY IS AVAILABLE WHERE HE SPECIFIES THE MANNER IN WHICH SUCH IN COME HAS BEEN EARNED. IN THE STATEMENT RECORDED UNDER SECTION 132(4),T HE ASSESSEE HAD NEVER SPECIFIED IN THE MANNER IN WHICH SUCH INCOME HAS BEEN EARNED . THE AO F URTHER STATED THAT SUCH IMMUNITY IS ONLY AVAILABLE WHERE THE TAX ALONG WITH INTEREST ON UN DISCLOSED INCOME OFFERED IS PAID, HOWEVER, THE ASSESSEE HAD NOT PAID THE TAX ALONG WITH THE INTEREST EVEN TILL THE TH IS PENALTY ORDER WAS PASSED. T HEREFORE, THE ASSESSING OFFICER HAS LEVIED PENALTY OF RS. 27 , 20 , 443/ - @ 10% OF THE UNDISCLOSED INCOME OF T HE SPECIFIED PREVIOUS YEAR. I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 5 5. AGGRIEVED AGAINST THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX(A). THE LD. COMMISSIONER OF INCOME TAX(A) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. TH E N DECISION OF THE LD. COMMISSIONER OF INCOME TAX(A) IS REPRODUCED AS UNDER: - 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT AND HAVE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS PENALTY ORDER PASSED BY THE ASSESSING OFFICER. - 6.1 SECTION 271 AAA PROVIDES THAT, IN A CASE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER 1 ST JUNE, 2007, THE ASSESSEE SHALL BE LIABLE TO PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM COMPUTED AT THE RATE OF TEN PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. HOWEVER, PROVISIONS OF THIS SECTION SHALL NOT BE APPLICABLE IF THE ASSESSEE - (I) IN A STATEMENT UNDER SUB - SECTION (4) OF SECTION 132 IN THE COURSE OF THE SEARCH, ADMITS THE UNDISCLOSED IN COME AND SPECIFICS THE MANNER IN WHICH SUCH INCOME HAS DERIVED; (II) THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED; AND (III) THE FAX, TOGETHER WITH INTEREST, IF ANY, IN OF THE UNDISCLOSED INCOME. THEREFORE, IN ORDER TO BE ELIGIBLE FOR IMMUNITY FR OM THE PENALTY UNDER SECTION 271AAA, THE IS REQUIRED TO FULFILL ALL THE THREE CONDITIONS CUMULATIVELY AS MENTIONED ABOVE. IT IS FURTHER PROVIDED THAT NO PENALTY UNDER THE PROVISIONS OF CLAUSE (C) OF SUB - SECTION (1) OF SECTION 271 SHALL BE LEVIED OR IMPOSED UPON THE ASSESSEE IN RESPECT OF THE UNDISCLOSED INCOME REFERRED TO IN THIS SECTION. IT IS ALSO PROVIDED THAT THE PROVISIONS OF SECTION 274 AND SECTION 275 SHALL, SO FAR AS MAY BE, APPLY IN RELATION TO THE PENALTY LEVIABLE UNDER THE NEW SECTION. FOR THE P URPOSES OF THIS SECTION, SPECIFIED PREVIOUS YEAR HAS BEEN DEFINED, SO AS TO MEAN THE PREVIOUS YEAR - (I) WHICH HAS ENDED BEFORE THE DATE OF SEARCH, BUT THE DATE OF FILING THE RETURN OF INCOME UNDER SUB - SECTION (1) OF SECTION 139 FOR SUCH YEAR HAS NOT EXPIR ED BEFORE THE DATE OF SEARCH AND THE ASSESSEE HAS NOT FURNISHED THE RETURN OF INCOME FOR THE PREVIOUS YEAR BEFORE THE SAID DATE; OR (II) IN WHICH SEARCH WAS CONDUCTED. I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 6 'UNDISCLOSED INCOME' HAS ALSO BEEN DEFINED, SO AS TO MEAN ANY INCOME OF THE 'SPECIFIE D PREVIOUS YEAR' FOUND DURING THE COURSE OF SEARCH REPRESENTED BY (I) UNDISCLOSED ASSETS (II) UNDISCLOSED TRANSACTIONS REPRESENTING UNDISCLOSED INCOME : WHICH HAS NOT BEEN RECORDED BEFORE THE DATE OF SEARCH IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MA INTAINED IN THE NORMAL COURSE OR OTHERWISE NOT DISCLOSED TO THE CCIT / CIT BEFORE THE DATE OF SEARCH II) FALSE OR BOGUS EXPENSES CLAIMED, DETECTED AS A RESULT OF SEARCH : WHICH ARE RECORDED IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE. FROM THE BARE READING OF PROVISIONS OF S.271AAA, IT IS CLEAR THAT S.271 AAA IS APPLICABLE WITH RESPECT TO 'UNDISCLOSED INCOME' OF THE 'SPECIFIED PREVIOUS YEAR IN RESPECT OF AN WHERE SEARCH HAS BEEN INITIATED U/S. 132 ON OR AFTER 1 ST DAY OF JUNE, 2007. PENALTY PROVISIONS IN THE CASE OF SEARCH INITIATED UNDER SECTION 132 ON OR AFTER 1 ST JUNE, 2007, WITH RESPECT TO THE 'UNDISCLOSED INCOME' OF THE 'SPECIFIED PREVIOUS YEAR' I.E. YEAR OF SEARCH AND IMMEDIATELY IF DUE DATE OF FILING OF RETURN HA S NOT EXPIRED AND INCOME TAX RETURN FOR SUCH YEAR HAS NOT FILED, ARE CONTAINED AND GOVERNED BY 271 AAA. THUS, PROVISIONS OF SECTION 271AAA ARE APPLICABLE WITH RESPECT TO 'UNDISCLOSED INCOME' OF THE 'SPECIFIED PREVIOUS YEAR' ONLY. DEPENDING UPON THE ON WHIC H IS CONDUCTED, 'SPECIFIED PREVIOUS YEAR' SHALL BE THE YEAR OF SEARCH ONLY IN SOME WHEREAS IN OTHER CASES, ONE MORE YEAR MAY BE AVAILABLE TO THE ASSESSEE AS 'SPECIFIED PREVIOUS YEAR' WITHIN THE PROVISIONS OF SECTION 271AAA. THE IMPLICATIONS OF PROVISIONS OF SECTION 271AAA ARE BRIEFLY STATED AS UNDER: (I) THERE IS DEEMING FICTION OF 'UNDISCLOSED INCOME' RELATING TO 'SPECIFIED PREVIOUS YEAR' AS DEFINED UNDER SECTION 271AAA. I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 7 (II) WITH RESPECT TO 'UNDISCLOSED INCOME' RELATING TO 'SPECIFIED PREVIOUS YEAR', PENA LTY IS LEVIABLE AT THE RATE OFTEN PER CENT OF 'UNDISCLOSED INCOME' (III) THERE IS PROVISION FOR IMMUNITY FROM PENALTY IN CASE DECLARATION OF 'UNDISCLOSED INCOME' IS MADE IN THE STATEMENT RECORDED UNDER SECTION 132(4) DURING THE COURSE OF SEARCH PROVIDED OT HER CONDITIONS MENTIONED IN SECTION 271AAA E.G. SPECIFYING AND SUBSTANTIATING THE MANNER OF DERIVING SUCH INCOME AND PAYING OF TAXES AND INTEREST THEREON ARE FULFILLED. (IV) WITH RESPECT TO 'UNDISCLOSED INCOME' OF THE 'SPECIFIED PREVIOUS YEAR', PENALTY SHA LL BE LEVIED AS PER PROVISION OF SECTION 271 AM AND THE PROVISION OF SECTION 271(1)(C) WILL NOT BE APPLICABLE. 6.2 IT IS CORRECT THAT DURING THE COURSE OF SEARCH APPELLANT ADMITTED UNDISCLOSED INCOME ONLY TO THE EXTENT OF RS.60,00,0007 - IN THE STATEMENT RE CORDED U/S 132(4) OF THE ACT. SUBSEQUENTLY, BY A LETTER DTD 30 - 11 - 2009 THE APPELLANT ENHANCED THE DISCLOSURE FROM RS.60,00,000/ - TO RS.3,60,00,000/ - . THE VIEW OF THE AO IS THAT THE APPELLANT IS NOT ELIGIBLE FOR IMMUNITY FROM PROVISIONS OF SECTION 271AAA AS FIRST BASIC CONDITION IS NOT SATISFIED IN AS MUCH AS APPELLANT DID NOT DISCLOSE THE ENTIRE UNACCOUNTED INCOME OF RS. 3,60,00,0007 - IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT. I HAVE PERUSED THE COPY OF 132(4) STATEMENT AND IT IS SEEN THAT THE APPELLA NT WAS CONFRONTED BY ASKING SPECIFIC QUESTIONS RELATED TO ENTRIES RECORDED IN SEIZED MATERIALS AND HIS REPLIES WERE ALSO CONFINED TO THE NOTINGS MENTIONED IN THOSE DOCUMENTS. ON THE BASIS OF SUCH DOCUMENTS, APPELLANT DISCLOSED RS.60,00,000/ - IN THE STATEME NT RECORDED U/S 132(4) OF THE ACT. SUBSEQUENTLY, AFTER RECEIVING COPIES OF THE ENTIRE MATERIAL AND TAKE CARE OF ALL THE POSSIBLE ERRORS, DISCREPANCIES AND TRANSACTIONS THAT MAY BE FOUND, IN ANY MANNER, ON ANY STATEMENT, ENTRIES, DOCUMENTS ETC. FORMING PART OF THE MATERIAL, THE DISCLOSURE WAS BY THE APPELLANT FROM RS.60,00,000/ - TO RS.3,60,00,000/ - VOLUNTARILY BY FILING A DTD. 30 - 11 - 2009. THE WAS CONDUCTED ON 15 - 09 - 2009 AND THERE IS A GAP OF ONLY 40 - 45 DAYS AND THIS MUCH TIME IS DEFINITELY REQUIRED B Y ANY TO GO THROUGH THE MATERIAL THOROUGHLY AND TO CALCULATE THE QUANTUM OF UNDISCLOSED INCOME ON THE OF MATERIAL. FURTHER, THE DISCLOSURE HAS NOT BEEN ENHANCED BY THE APPELLANT BECAUSE OF ANY QUERIES AND FURTHER INVESTIGATION FROM THE SIDE OF THE DEPARTMENT, IT I S PURELY VOLUNTARY ENHANCEMENT OF DISCLOSURE BY THE APPELLANT AND THIS FACT HAS ALSO NOT BEEN CHALLENGED BY THE AO IN THE ASSESSMENT ORDER. IN THE LETTER DID. 30 - 11 - 2009 ALSO, THE APPELLANT HAS CLEARLY STATED IN POINT NO.6 THAT THIS LETT ER SHOULD BE TREATE D AS FORMING PART OF THE I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 8 STATEMENT RECORDED U/S 132(4) OF THE ACT. IN VIEW OF ALL THE ABOVE DISCUSSED FACTS, IT IS HELD THAT THE APPELLANT HAS SATISFIED THE FIRST CONDITION SPECIFIED IN SECTION 271 AAA OF THE ACT. 6.3 SO FAR AS THE MANNER OF EARNING OF TH E SAID UNDISCLOSED INCOME AND SUBSTANTIATING THE SAME IS CONCERNED,! AGREE WITH THE AO THAT THE APPELLANT IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT HAS NOT SPECIFIED THE MANNER OF EARNING SUCH INCOME AND HAS NOT SUBSTANTIATED THE SAME AS WELL. HOWEV ER, SO FAR AS SPECIFYING AND SUBSTANTIATING THE MANNER IN WHICH INCOME HAS BEEN EARNED IS CONCERNED, THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY SUCH QUESTION WAS ASKED TO THE APPELLANT EITHER IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT OR EVEN DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS. IT IS NOTED THAT THE APPELLANT HAS RESPONDED TO ALL THE QUE STIONS ASKED U/S 132(4) OF THE I T ACT RELATING TO HIS FINANCIAL AFFAIRS. UNLESS SPECIFIC QUESTION IS ASKED TO THE APPELLANT EITHER IN THE STATEMENT RECORDED U/S 132(4) OR EVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT MAY NOT BE PROPER TO ATTRIBUTE THE FAILURE, IF ANY, FOR NOT SPECIFYING AND SUBSTANTIATING THE MANNER IN WHICH INCOME WAS EARNED, TO THE APPELLANT. IN THIS REGARD THE DECISION OF THE HON'BL E HIGH COURT OF GUJARAT IN THE CASE OF MAHENDRA C. SHAH [2008] 299 ITR 305 (GUJ) WHICH IS IN THE CONTEXT OF IMMUNITY FROM PENALTY U/S 271(1)(C) READ WITH EXPLANATION 5 IS REPRODUCED AS UNDER: '15. INSOFAR AS THE ALLEGED FAILURE ON THE PART OF THE ASSESSEE TO SPECIFY IN THE STATEMENT UNDER SECTION 132(4) OF THE ACT REGARDING THE MANNE R IN WHICH SUCH INCOME HAS BEEN DERIVED, SUFFICE IT TO STATE THAT WHEN THE STATEMENT IS BEING RECORDED BY THE AUTHORIZED OFFICER IT IS INCUMBENT UPON THE AUTHORIZED OFFICER TO EXPLAIN THE PROVISIONS OF EXPLANATION 5 IN ENTIRETY TO THE ASSESSEE CONCERNED AND THE AUTHORIZED OFFICER CANNOT STOP SHORT AT A PARTICULAR STAGE SO AS TO PERMIT THE REVENUE TO TAKE ADVANTAGE OF SUCH A LAPSE IN THE STATEMENT THE REASON IS NOT FAR TO SEEK. I N THE FIRST INSTANCE, THE STATEMENT IS BEING RECORDED IN THE QUESTION AND ANSWER FORM AND THERE WOULD BE NO OCCASION FOR AN ASSESSEE TO AND MAKE AVERMENTS IN THE EXACT FORMAT STIPULATED BY THE PROVISIONS CONSIDERING THE SETTING IN WHICH SUCH STATEMENT IS B EING RECORDED, AS NOTED BY ALLAHABAD HIGH COURT IN CASE OF RADHA KISHAN GOEL (SUPRA) SECONDLY, CONSIDERING THE SOCIAL ENVIRONMENT IT IS NOT POSSIBLE TO EXPECT FROM AN ASSESSEE, WHETHER LITERATE OR ILLITERATE, TO BE SPECIFIC I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 9 AND TO THE POINT REGARDING THE C ONDITIONS STIPULATED BY EXCEPTION NO. 2 WHILE MAKING STATEMENT UNDER 132(4) OF THE ACT. THE VIEW BY THE TRIBUNAL AS WELL AS ALLAHABAD HIGH COURT TO THE EFFECT THAT EVEN IF THE NOT SPECIFY THE MANNER IN WHICH THE INCOME IS DERIVED, IF THE INCOME IS DECLARED AND TAX THEREON PAID, THERE WOULD BE SUBSTANTIAL COMPLIANCE NOT WARRANTING ANY FURTHER DENIAL OF THE BENEFIT UNDER EXCEPTION NO.2 IN EXPLANATION 5 IS COMMENDABLE. ' 6.4 NOW COMING TO THE THIRD CONDITION OF TAX PAYMENT, THE DETAILS OF TAX PAYABLE AND PAID ARE AS BELOW: PARTICULARS AMOUNT (RS .) TOTAL TAX & INTEREST PAYABLE 91,13,090/ - TAXES PAID 3 6 , 47,8 78/ - TAX PAYABLE TILL DATE 54,65,212 / - FROM THE ABOVE, IT CAN BE SEEN THAT EVEN TILL DATE THE APPELLANT HAS NOT PAID THE ENTIRE TAX PAYABLE ON THE UNACCOUNTED INCOME DISCLOSED IN THE RETURN. THE RELIANCE OF THE APPELLANT ON VARIOUS JUDICIAL PRONOUNCEMENTS MENTIONED ABOVE IS NOT RELEVANT AS IN ALL THOSE CASES THE ENTIRE TAX AND INTEREST WAS DULY PAID EITHER BEFORE THE COMPLETION OF ASSESSMENT OR BEFORE THE CONCLUSION OF THE IMPUGNED PENALTY ORDER. AS AGAINST THIS, IN THE CASE OF THE APPELLANT, EVEN TILL DATE I.E. AFTER 4 YEARS OF SEARCH, THE TAXES HAVE NOT BEEN FULLY PAID BY THE APPELLANT. CLEARLY, THE THIRD CONDITION SPECIFIED IN SECTION 271AA A HAS NOT BEEN FULFILLED BY THE APPELLANT. THEREFORE, THE APPELLANT IS NOT ELIGIBLE FOR IMMUNITY U/S 271AAA OF THE ACT. THE REQUEST OF THE APPELLANT TO GIVE PROPORTIONATE RELIEF IS UNACCEPTABLE SINCE THERE IS NO SUCH PROVISION IN THE STATUTE FOR ALLOWING P ROPORTIONATE RELIEF FROM THE PENAL PROVISIONS U/S 271AAA OF THE ACT. 6 . BEFORE US, THE LEARNED COUNSEL SUBMITTED PAPER BOOK ALONG WITH SYNOPSIS AND CONTENDED THAT DURING THE COURSE OF SEARCH , THE ASSESSEE HAD ADMITTED INCOME OF RS. 60 LACS IN THE STATEME NT I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 10 RECORDED U/S. 132(4) OF THE ACT. HOWEVER,L ATER ON ANOTHER STATEMENT WAS RECORDED DURING POST SEARCH PROCEED ING, WHERE THE ASSESS AFTER VERIFICATION OF SEIZED MATERIAL ADMITTED INCOME OF RS. 272.04 LACS .HE FURTHER CONTENDED THAT STATEMENT RECORDED IN INVESTIGATION WING ALSO FORM PART OF STATEMENT RECORDED U/S. 132(4) OF THE ACT AND WHOLE OF THE DISCLOSURE WAS MADE U/S 132(4) OF THE ACT ONLY. HE ALSO PLACED RELIANCE ON THE JUDGEMENT OF HON BLE ITAT JODHPUR IN THE CASE OF HISSARIA B ROTHERS VS. DCIT (20 09) 31 DTR 223 IN WHICH IT WAS HELD THAT DISCLOSURE OF ADDITIONAL INCOME MADE BY THE ASSESSEE THR OUGH A LETTER ADDRESSED TO THE ASSISTANT DIRECTOR OF INCOME TAX (INV.) IMMEDIATELY AFTER THE CONCLUSION OF THE SEARCH A LSO INCLUDED IN ITS RETURN AND ACCEPT ED WITHOUT ANY VARIATION HAS TO BE CONSTRU ED AS A BONA FIDE VOLUNTARY DISCLOSURE AND PENALTY U/S. 271(1)(C) IS NOT TO BE LEVI ED IN VIEW OF EXPLANATION 5. THE LEARNED COUNSEL ALSO CONTENDED THAT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION THE RETURN DECL ARING TOTAL INCOME OF RS.2,72,04,430 WAS FILED ON 31.08.20 - 10.DURING THE COURSE OF SEARCH CASH OF RS. 1 3,50,000/ - WAS SEIZED AND VIDE LETTER DATED 11/ 10/2010 ASSESSEE HAD REQUESTED THE COMMISSIONER OF INCOME TAX CENTRAL, C IRCLE - 2 , AHMEDABAD TO APPROPRI ATE SAID SEIZED CASH TOWARDS TAX LIABILITY FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. ONCE, THE ASSESSEE HAD REQUESTED FOR APPROPRIATION OF SEIZED CASH TO DEPARTMENT, THE LIABILITY OF ASSESSEE TO THAT EXTENT GOT DISCHARGED . IN THIS CONNECTION, HE PLACE D RELIANCE ON THE CASE OF RAM S. SHARDA VS. DCIT 13 ITR 457. THE REL IANCE WAS ALSO PLACED ON THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF ACIT VS. GEVILAL KANHAILAL (HUF) 348 ITR 561 (SC). ITAT KOLKATA BENCH A IN I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 11 THE CASE OF DCIT VS. PIONEER ON LINE LIMITED (2012) 52 SOT 94 (KOLKATA ) WHER EIN IT WAS HELD THAT ONCE ENTIRE TAX AND INTEREST HAS BEEN DULY ADJUSTED OUT OF SEIZ ED CASH OR OTHERWISE PAID IN DEFERENCE TO NOTICES OF DEMAND, WELL BEFORE THE PENALTY PROCEEDINGS WERE CON CLUDED, T HE ASSESSEE CO ULD NOT BE DENIED THE IMMUNITY U/S. 271AAA. HE ALSO RELIED IN THE CASE OF DCIT VS. PIONEER MARBLES & INTERIOR PVT. LTD (2012) 14 ITR (TRIB) 608 (KOL) WHEREIN IT WAS HELD THAT ONCE THE ENTIRE TAX AND INTEREST HAS BEEN DULY PAID WITHIN WELL BEFORE THE CONCL USION OF THE IMPUGNED PENALTY PROCEEDI NGS, T HE ASSESSEE CANNOT BE DENIED IMMUNITY U/S. 271AAA. THE LEARNED COUNSEL HAS ALSO REQUESTED FOR PROPORTIONATE RELIEF FROM THE PENAL PROVISION. THE LEARNING CO UN SEL CONTENDED THAT TO PAY THE OUTSTANDING DEMAND THE COMMISSIONER OF INCOME TAX WAS REQUESTED VIDE LETTER DATED 11.10.2011 TO APPROPRIATE THE SEIZED CASH OF RS1350,000 TOWARDS OUTSTANDING TAX DEMAND. HE FURTHER STATED THAT THE COMMISSIONER OF INCOME TAX WAS ALSO REQUESTED VIDE LETTER DATED 24.03.2011 TO REL EASE THE ORIGINAL DOCUMENTS OF TWO PLOTS TO CONSIDER FOR SALE BY THE ASSESSEE TO PAY THE OUTSTANDING TAX DEMAND. HE FURTHER ADDED THAT HIS REQUEST WAS NOT ACCEPED FOR RELEASE OF PROPERTY DOCUMENTS .HE FURTHER STATED THATR THE ASSESSEE HAS MADE PAYMENTS O F OUTSTANDING DEM A ND OF RS.20 LACS VIDE CHEQUE DATED 24 MARCH 2011 AND PAID RS.25 LACS VIDE CHEQUE DATED 15 TH SEPTEMBER 2013, AND FURTHER MADE PAYMENT OF RS.5, 22, 353 ON 20TH MAY 2016. I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 12 7. HE CONTENDED THAT SINCE THE ASSESSEE HAD LIQUIDATED THE D EMAND HE WOULD BE ENTITLED FOR IMMUNITY FROM THE PLANARITY AS LAID DOWN IN THE DECISION OF ON THE SUPREME COURT IN THE CASE OF ACIT VS.GEBILAL KANHAILAL HUF 348 ITR 561(SC),(2012) 82 CCH 209 REPRODUCED AS UNDER .' THE THIRD CONDITION UNDER CLAUSE (2) WAS T HAT THE ASSESSEE HAD TO PAY THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF SUCH UNDISCLOSED INCOME. HOWEVER, NO TIME LIMIT FOR PAYMENT OF SUCH TAX STOOD PRESCRIBED UNDER CLAUSE (2). THE ONLY REQUIREMENT STIPULATED IN THE THIRD CONDITION WAS FOR THE ASSESSEE TO 'PAY TAX TOGETHER WITH INTEREST'. IN THE PRESENT CASE, THE THIRD CONDITION ALSO STOOD FULFILLED. THE ASSESSEE HAS PAID TAX WITH INTEREST UPTO THE DATE OF PAYMENT. THE ONLY CONDITION WHICH WAS REQUIRED TO BE FULFILLED FOR GETTING THE IMMUNITY, A FTER THE SEARCH PROCEEDINGS GOT OVER, WAS THAT THE ASSESSEE HAD TO PAY THE TAX TOGETHER WITH INTEREST IN RESPECT OF SUCH UNDISCLOSED INCOME UPTO THE DATE OF PAYMENT. CLAUSE (2) DID NOT PRESCRIBE THE TIME LIMIT WITHIN WHICH THE ASSESSEE SHOULD PAY TAX ON IN COME DISCLOSED IN THE STATEMENT UNDER SECTION 132(4).' 8. LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF COMMISSIONER OF INCOME TAX(A) . 9. W E HAVE H E ARD BO TH THE SI DES AND PERUSED T HE MATERIAL ON RECORD CAREFULLY . IN THIS CONNECTION WE HAVE GONE THROUGH THE PROVISIONS OF SECTION 271AAA AS PER ACT WHICH ARE REPRODUCED AS UNDER: - [ PENALTY WHERE SEARCH HAS BEEN INITIATED. 271AAA. (1) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM COMPUTED AT THE RATE OF TEN PER CENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. (2) NO THING CONTAINED IN SUB - SECTION (1) SHALL APPLY IF THE ASSESSEE, ( I ) IN THE COURSE OF THE SEARCH, IN A STATEMENT UNDER SUB - SECTION (4) OF SECTION 132 , ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 13 ( II ) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED; AND ( III ) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. (3) NO PENALTY UNDER THE PROVISIONS OF CLAUSE ( C ) OF SUB - SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN RESPECT OF THE UNDISCLOSED INCOME REFERRED TO IN SUB - SECTION (1). (4) THE PROVISIONS OF SECTIONS 274 AND 275 SHALL, SO FAR AS MAY BE, APPLY IN RELATION TO THE PENALTY REFERRED TO IN THIS SECTION. EXPLANATION. FOR THE PURPOSES OF THIS SECTION, ( A ) UNDISCLOSED INCOME MEANS ( I ) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRESENTED, EITHER WHOLLY OR PARTLY, BY ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS FOUND IN THE COURSE OF A SEARCH UNDER SECTION 132 , WHICH HAS ( A ) NOT BEEN RECORDED ON OR BEFORE THE DATE OF SEARCH IN THE BOOKS OF ACCO UNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO THE ASSESSEE IN THE HARVEST THE DISCLOSURE OF RS.60 LAKH SUCH PREVIOUS YEAR; OR ( B ) OTHERWISE NOT BEEN DISCLOSED TO THE CHIEF COMMISSIONER OR COMMISSIONER BEFORE THE DATE OF SEARCH; OR ( II ) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRESENTED, EITHER WHOLLY OR PARTLY, BY ANY ENTRY IN RESPECT OF AN EXPENSE RECORDED IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO THE SPECIFIED PREVIOUS YEAR WHICH IS F OUND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED; ( B ) SPECIFIED PREVIOUS YEAR MEANS THE PREVIOUS YEAR ( I ) WHICH HAS ENDED BEFORE THE DATE OF SEARCH, BUT THE DATE OF FILING THE RETURN OF INCOME UNDER SUB - SECTI ON (1) OF SECTION 139 FOR SUCH Y EAR HAS NOT EXPIRED BEFORE THE DATE OF SEARCH AND THE ASSESSEE HAS NOT FURNISHED THE RETURN OF INCOME FOR THE PREVIOUS YEAR BEFORE THE SAID DATE; OR ( II ) IN WHICH SEARCH WAS CONDUCTED 10. WE HAVE NOTICED THAT DURING THE COURSE OF S EARCH THE ASSESSEE HAS ADMITTED UNDISCLOSED INCOME TO THE EXTENT OF RS.60 L AC IN THE STATEMENT RECORDED UNDER SECTION 132 (4) OF THE ACT. SUBSEQUENTLY B Y A LETTER DATED 30.11.2009 THE ASSESSEE HAD ENHANCED THE DISCLOSURE FROM RS.60 LACS TO RS.3.60 CR. WE ALSO NOTICED THAT THE SE ARCH WAS I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 14 CONDUCTED ON 15 SEPTEMBER 2009 AND THEREAFTER THE ASSESSEE HAS VOLUNTARILY FILED A LETTER DATED 30TH S EPT. 2009 AND ENHANCED THE DISCLOSURES AFTER VERIFICATION OF STATEMENTS , DOCUMENTS AND SE IZ ED MATERIAL. WE CONSID E RED THAT THERE IS A GAP OF ONLY 4 0 TO 4 5 DAYS AND DEFINITELY THIS TIME IS REQUIRED BY THE ASSESSEE TO GO THROUGH THE SE IZED MATERIAL AND TO CALCULATE THE QUANTUM OF UNDISCLOSED INCOME ON THE BASIS OF SEIZED MATERIAL. THE ASSESSEE HAS CLEARLY MENTIONED IN THE LETTER THAT DISCLOSUR E MADE SHOULD BE TREATED AS FORMING PART OF THE STATEMENT RECORDED UNDER SECTION 132 (4) OF THE ACT. IN VIEW OF THESE FACTS WE CONSIDERED THAT THE ASSESSEE HAS SATISFIED THE FIRST CONDITION SPECIFIED IN SECTION 27 1 AAA OF THE ACT. SO FAR AS THE SECOND CONDI TION IS CONCERNED WE OBSERVED THAT ASSESSEE WAS NOT ASKED SPECIFIC QUESTIONS TO SUBSTANTIATE THE MANNER IN WHICH THE INCOME WAS EARNED AND HE PLACED RELIANCE ON THE DECISION OF HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF MAHENDRA C.SHAH(2008)229 ITR 305 (GUJ) NOW WE ARE COMING TO THE THIRD CONDITION WHICH REQUIRED THAT THE ASSESSEE TO PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME . 11. IN THIS CONNECTION WE HAVE SEEN THAT TOTAL TAX & INTEREST PAYABLE WAS RS.91,1 3090/ AND THE ASSESSEE HAD PAID TAXES ONLY TO THE EXTENT OF RS.36,47,878/. WE HAVE ALSO CONSIDERED THE VARIOUS JUDICIAL PRONOUNCEMENT QUOTED BY THE ASSESSEE AND FOUND THAT IN ALL THOSE CASES THE ENTIRE TAX AND INTEREST WAS DULY PAID . THE CONDITIONS STATED AS (SUPRA) ARE MANDATORY AND THERE IS A NO RELAXATION AVAILABLE TO THE ASSESSEE IN PROPORTIONATE BASIS AS CLAIMED BY THE ASSESSEE. SECTION I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 15 271AAA PROVIDES FOR A MANDATORY LEVY OF PENALTY EXCEPT WHERE THE ASSESSEE SATISFIES THE CONDITIONS OF SECTION 271AA A (2). EVEN THE SAVING UPON PROVING A REASONABLE CLAUSE, AS PROVIDED UNDER SECTION 273B, IS NOT APPLICABLE FOR A PENALTY IMPOSABLE U/S.271AAA, WHICH IS ONLY IN RESPECT OF UNDISCLOSED INCOME, SO THAT WHAT ALONE IS RELEVANT IS THE APPLICABILITY OF THE PROVISI ON IN THE FACTS OF THE CASE . 12. WE HAVE SEEN THAT IN THIS CASE THE PENALTY WAS CONFIRMED BY THE LD CIT BECAUSE OF NON FULFILLMENT OF THE THIRD CONDITION OF PAYMENT OF TAXES ALONG WITH DUE INTEREST .AS DISCUSSED ABOVE THE ASSESSEE CLAIMED THAT HE HAS PAID FULL OUTSTANDING DEMAND AND PLACED RELIANCE ON THE DECISION OF H ON'BLE APEX COURT AS DISCUSSED(SUPRA). IN THE SUBMISSION MADE BEFORE US THE ASSESSEE HAS FURNISHED THE DETAILS OF PAYMENT OF REMAINING OUTSTANDING DEMAND AS STATED ABOVE IN THIS ORDE R. WE CONSIDERED THAT THE CLAIM MADE BY THE ASSESSEE REGARDING THE FULL PAYMENT OF OUTSTANDING DEMAND REQIRED TO BE VERIFI ED ACCORDING TO THE DIRECTION PROVIDED BY THE HON'BLE SUPREME COURT IN THE ABO V E REFERRED CASE . IN VIEW OF THE ABOVE STATED FACTS A ND LEGAL FINDINGS WE RESTORE THIS MATTER TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE REGARDING THE FULF ILLMENT OF THE THIRD CONDITION OF SEC.277AAA AS MENTIONED ABOVE IN THIS ORDER AND DECIDE THE MATTER AFRESH AFTER KEEPING IN VIEW THE DIRECTION OF THE HON'BLE APEX COURT COURT IN THE CASE OF ACIT VS.GEBILAL KANHAILAL HUF 348 ITR 561(SC),(2012) 82 CCH 209. I.T.A NO. 3 7 1 /RJT /20 13 A.Y. 2010 - 11 PAGE NO HITESH MULCHAND DOSHI VS. ACIT 16 13. IN THE END , THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PR ONOUNCED IN THE OPEN C OUR T ON 09 - 11 - 201 6 SD/ - SD/ - (S. S. GODARA ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 09 /11 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT