M/s. SVP Builders (India) Ltd., Noida V. DCIT, New Delhi

ITA 4674/DEL/2014

• Counselvise Citation: 467420114 RSA 2014
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 09-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 25-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDRA
• Keywords: Loose papers; Document seized; Initiation of penalty proceedings; Right to appeal; Sham transactions; Documents seized
• Section: 143(3); 27; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SH. H.S.SIDHU, JUDICIAL MEMBER AND SH.J.S.REDDY, ACCOUNTANT MEMBER I.T.A .NO. 4674/DEL/2014 (ASSESSMENT YEAR - 2009 - 10) SVP BUILDERS (INDIA) LTD., C/O - SH. RUPINDER KUMAR AGGARWAL, ADVOCATE, B - 1A/22, SECTOR - 51, NOIDA - 201301. PAN - AAECS8870M ( APPELLANT) VS DCIT, CIRCLE - 7(1), NEW DELHI (RESPONDENT) APPELLANT BY SH. SALIL AGGARWAL & SH. SHAILESH GUPTA, ADV. RESPONDENT BY SH.RAMESH CHANDRA, CIT DR ORDER PERJ.S.REDDY, AM THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE CIT(A) - X, DELHI DATED 18.07.2014 FOR THE ASSESSMENT YEAR 2009 - 10. 2. THE FACTS AR E BROUGHT OUT AT PARA 2 OF THE L D. CIT(A) S ORDER. THESE ARE EXTRACTED FOR READY - REFERENCE: - THE FACTS OF THE CASE ARE THAT A SEARCH U/S 132(1) OF THE I.T. ACT, 1961 WAS CONDUCTED ON 14 - 10 - 2008 IN S.V.P. GROUP DURING WHICH THE OFFICE PREMISES OF SVP BUILDERS INDIA LTD. & ASSOCIATES COMPANY & RESIDENTIAL PREMISES OF THE DIRECTORS & THEIR RELATIVES WERE COVERED. THE SVP GROUP OF COMPANIES WAS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF RESIDENTIAL, COMMERCIAL AND BUSINESS COMPLEXES ALONG WITH SALE / PURCHASE OF LANDS. IT WAS ALLEGED THAT THE GRO UP HAD BEEN CHARGING ON MONEY ON THE SALE OF FLATS, SHOPS ETC. WHICH WAS NOT ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNTS. USUALLY THIS ON - MONEY WAS TAKEN IN CASH WHICH IN TURN WAS ROUTED BACK INTO THE GROUP OF COMPANIES IN THE FORM OF SHARE APPLICATION/ UNSECURED LOANS, SHARE CAPITAL ETC. THE UNACCOUNTED MONEY ROUTED THROUGH THIS CHANNEL WAS REINVESTED IN THE PURCHASE OF FURTHER LANDS AND FOR NEW PROJECTS. THE SHARE APPLICATION MONEY RECEIVED IN CASH WAS ALSO UTILIZED FOR BOOKING BOGUS EXPENSES AS SITE DE VELOPMENT CHARGES FOR INFLATING THE COST OF CONSTRUCTION TO BRING DOWN ITS PROFITS. ACCORDINGLY, NOTICE U/S 271AAA WAS ISSUED TO THE ASSESSEE ON 03 - 03 - 2014. THE ASSESSMENT ORDER U/S 143(3) OF THE IT ACT WAS PASSED ON 30 - 2 I.T.A .NO. 4674 /DEL/201 4 12 - 2010 AFTER MAKING CERTAIN ADDITIO NS / DISALLOWANCE AND PENALTY PROCEEDINGS U/S 271AAA WERE INITIATED. SINCE THE ASSESSEE COULD NOT PROVE THAT IT HAS NOT CONCEALED THE TRUE PARTICULARS OF ITS INCOME TO THE EXTENT OF RS.15,30,00,000/ - , PENALTY ORDER U/S 271AAA OF THE ACT WAS PASSED LEVYING A PENALTY OF RS.L,53,00,000/ - . 3. ON APPEAL THE FIRST APPELLATE AUTHORITY REJECTED THE VARIOUS CONTENTIONS OF THE ASSESSEE AND PARTLY CONFIRMED THE PENALTY. AGGRIEVED THE ASSESSEE IS IN APPEAL ON THE FOLLOWING GROUNDS: - 1. THAT THE LEARNED CIT (A) HA S ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER IMPOSING PENALTY U/S 271AAA OF THE INCOME TAX ACT. 2. THAT, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT RS. 15,00,00,000/ - AS WAS INCLUDED IN THE RETURN OF INCOME AND HAD BEEN OFFERED IN THE S TATEMENT TO BE ASSESSED AS INCOME WAS NOT AN UNDISCLOSED INCOME AS DEFINED IN EXPLANATION 1 TO SECTION 271AAA OF THE INCOME TAX ACT. 3. THAT, BEFORE INITIATING THE PROCEEDINGS U/S 271 AAA OF THE ACT, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. HAD SPECIFICALLY STATED THAT THE PROCEEDINGS U/S 271AAA OF THE ACT IS BEING INITIATED ONLY IN RESPECT OF A SUM OF RS. 1,86,01,810/ - AS SPECIFIED IN PARA 2 OF HIS ORDER AND THUS IN THE ABSENCE OF ANY SATISFACTION IN RESPECT OF THE AMOUNT OFFERED BY THE ASSE SSEE AS INCOME, THE PROVISION OF SECTION 271AAA OF THE ACT COULD NOT HAVE BEEN INVOKED AND NO PENALTY COULD HAVE BEEN SUSTAINED IN RESPECT OF THE SAID SUM OF RS. 15,00,00,000/ - . 4. THAT WITHOUT PREJUDICE THERETO, IN THE FACE OF THE FINDING THE LEARNED A .O. IN THE ORDER OF ASSESSMENT THAT RS. 15,00,00,000 / - REPRESENTED THE SUM OFFERED, 'AGAINST THE DISCREPANCY IN THE BOOKS OF ACCOUNTS AND LOOSE PAPERS' THE PROVISIONS OF SECTION 271AAA OF THE ACT COULD NOT BE INVOKED AND NO PENALTY COULD HAVE BEEN IMPOSED MUCH LESS U/ S 271AAA OF THE ACT. 5. THAT IN ANY CASE, NO SATISFACTION HAVING BEEN RECORDED BY THE A.O. IN THE ORDER OF ASSESSMENT THAT RS.15,00,00,000/ - WAS AN UNDISCLOSED INCOME AND NO PROCEEDINGS HAVING BEEN INITIATED, NO PENALTY U/S 271AA OF THE ACT COU LD HAVE BEEN SUSTAINED BY THE LEARNED CIT(A). 4. THE LD. COUNSEL FOR THE ASSESSEE SH. SALIL AGGARWAL SUBMITTED THAT THE ACIT HAS INITIATED THE PENALTY WITH RESPECT TO ONLY TWO SPECIFIC ADITIONS I.E. ( I) ADDITION MADE OF RS.1,86,01,810/ - (ON THE BASIS OF DOCUMENT A - 163) AND (II) ADDITION MADE OF RS.30,00,000/ - ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED DURING THE YEAR WHICH WAS TREATED AS CONCEALED INCOME OF THE 3 I.T.A .NO. 4674 /DEL/201 4 ASSESSEE. HE SUBMITTED THAT THE PENALTY QUA THE ADDITION OF RS.30,00,000/ - HAS BEEN DELET ED BY THE LD. CIT(A), FOR THE REASON THAT THE TRIBUNAL HAS DELETED THE ADDITION IN QUANTUM PROCEEDINGS. HENCE ONLY PENALTY INITIATED ON AN ADDITION MADE OF RS.1,86,01,810/ - REMAINS TO BE ADJUDICATED . HE SUBMITTED THAT THE AO INITIAT ED PENALTY, ONLY WITH RESPECT TO TWO ADDITIONS BUT HAS WRONGLY LEVIED PENALTY U/S 271AAA ON UNDISCLOSED INCOME OF RS. 15,30,00,000/ - . HE SUBMITTED THAT THE PENALTY LEVIED BEYOND AN AMOUNT OF RS.1,86,01,810/ - IS NOT SUSTAINABLE , FOR THE REASON THAT THE PENALTY HAD NOT BEEN INI TIATED ON THOSE ITEMS OF INCOME BY THE AO. 5. FOR THIS PROPOSITION HE RELIED ON THE FOLLOWING CASE LAWS: - ( I ) CIT VS TRIVENI ENGINEERING AND INDUSTRIES LTD. 369 ITR 660 HC [ ALL ] ( II ) CIT VS LOTUS CONSTRUCTION 370 ITR 475 HC (T & AP) ( III ) CIT VS MWP LIMITED 264 CTR 502 (KAR.) (COPY ENCLOSED) 6 . ON LEVY OF PENALTY ON A SUM OF RS.1,86,01,810/ - THE LD. COUNSEL SUBMITTED THAT THE ENGLISH TRANSLATION OF THE STATEMENT MADE BY THE DIRECTOR OF THE ASSESSEE COMPANY U/S 132(4) ON 15.10.2008, HAS BEEN REPRODUCED BY THE LD. CIT(A) IN HIS ORDER AT PAGE 12 & 13. HE SUBMITTED THAT THE ASSESSEE COMPLIED WITH THE PROVISION OF SUB - SECTION 2 OF THE SECTION 271AAA BY PAYING TAXES ON ADMITTED UNDISCLOSED INCOME. HE SUBMITTED THAT A PERUSAL OF THE STATEMENT RECORDED DEMONSTR ATES THAT , NO SPECIFIC QUESTION WAS PUT TO THE ASSESSEE TO DESCRIBE OR GIVE THE DETAILS ABOUT THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS EARNED NO R TO SUBSTANTIATE THE SAME. HE SUBMITTED THAT WHEN NO SPECIFIC QUESTION HAS BEEN PUT TO THE ASSESSEE BY T HE REVENUE OFFICIALS , IT CANNOT BE HELD THAT THE ASSESSEE HAS NOT SUBSTANTIATED THE MANNER IN WHICH HE DERIVED THE SAID UNDISCLOSED INCOME. 7 . FOR THIS PROPOSITION HE RELIED ON THE FOLLOWING CASE LAWS: - I). CIT VS RADHA KISHAN GOEL REPORTED IN 278 ITR 454 HC (ALL) II) CIT VS MAHENDRA C.SHAH REPORTED IN 299 ITR 305 HC (GUJ) III) ACIT VS MUNISH KUMAR GOYAL [2014] 45 TAXMANN.COM 563 (CHANDIGARH - TRIB) IV) NEERAT SINGAL VS ACIT [2014] 146 ITD 152 (DELHI - TRIB) (IN THE CONTEXT OF SECTION 271AAA OF THE ACT CONS IDERING THE JUDGEMENT OF 278 ITR 454 HC (ALL) AND 299 ITR 305 HC (GUJ) 4 I.T.A .NO. 4674 /DEL/201 4 V) ACIT VS A.N.ANNAMALAISAMY (HUF) 155 TTJ 98 (CHENNAI) (IN THE CONTEXT OF SECTION 271AAA OF THE ACT). 8 . HE ALSO RELIED ON CERTAIN CASE - LAWS IN THE CONTEXT OF THE EXPLANATION FILED TO SECTION 271(1)(C) OF THE ACT . HE FURTHER CONTENDED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS VIDE REPLY DATED 12.12.2010, EXPLANATION WAS OFFERED BY THE ASSESSEE AND THIS EXPLANATION WAS NEITHER FOUND TO BE FALSE OR NOT BONAFIDE. HENCE HE SUBMITTED THAT LEVY OF PENALTY UNDER SUCH CIRCUMSTANCES IS BAD IN LAW. HE RELIED THE DECISION OF AHMEDABAD BENCH OF ITAT IN THE CASE OF SH. KIRTI BHAI K.SHROFF VS ITO (ITA NO. - 342/AHD/2011 DATED 17.10.2014 , F OR THE PROPOSITION THAT NO PENALTY CAN BE LEVIED UNDER SUC H CIRCUMSTANCES. 9 . HE FURTHER SUBMITTED THAT THE ASSESSEE HAD VOLUNTARILY DISCLOSED AN AMOUNT OF RS.10,90,60,000/ - AND WHEREAS THE DISCREPANCIES IN THE BOOKS OF ACCOUNTS AND THE AMOUNT RELATABLE TO SEIZED DOCUMENTS AT BEST , AGGREGATED TO UNDISCLOSED INCO ME O F RS.7,29,66,351/ - ONLY. THUS HE SUBMITTED THAT THE SURRENDER OF INCOME MADE BY THE ASSESSEE WAS MUCH HIGHER THAN THE EVIDENCE FOUND DURING THE COURSE OF SEARCH AND THIS SHOWS THE BONAFIDE OF THE ASSESSEE AS IT HAD PAID MORE TAX THAN THAT WAS REQUIRED UNDER THE LAW . HE RELIED ON THE ARGUMENTS RAISED BY THE FIRST APPELLATE AUTHORITY AND SUBMITTED THAT THE PENALTY SUSTAINED SHOULD BE CANCELLED . 10 . THE LD. DR, MR. RAMESH CHANDRA AND ON THE OTHER HAND OPPOSE D THE CONTENTION OF THE ASSESSEE. HE FILED WR ITTEN SUBMISSION ALSO. AT THE OUTSET HE CONTENDED THAT PENALTY PROCEEDINGS SHOULD BE STRICTLY CONSTRUED. HE S UBMITTED THAT THE ORDER OF THE CIT(A) IS DEVOID OF MERIT AND THAT IT IS BA D IN LAW , FOR THE REASON THAT THE ASSESSEE WHILE FILING THE APPEAL BEFO RE THE CIT(A) IN THE STATUTORY FORM NO - 35, HAS NOT GIVEN THE STATEMENT OF FACTS . HE CONTENDED THAT FORM NO. - 35 IS A STATUTORY FORM AND NOT GIVING STATEMENT OF FACTS BEFORE THE CIT(A) IN THE PRESCRIBED FORM MAKES THE ORDER OF THE CIT(A) DEFECTIVE AND CONSEQUENTLY THE ORDER PASSED BY THE CIT(A) IS BAD IN LAW . 11. T HE LD. DR SUBMITTED THAT SECTION 271AAA HAS BEEN INTRODUCED INTO THE STATUTE TO REDUCE THE RIGOROUS OF PENALTY WHEREVER THE ASSESSEE HAS 5 I.T.A .NO. 4674 /DEL/201 4 DECLARED UNDISCLOSED INCOM E AND WHERE THE ASSESSEE FULFILLED THE CON DITIONS STIPULATED IN 271AAA SUB - SECTION (2) OF THE ACT. HE POINTED OUT THAT THE PENALTY IS ONLY AT FLAT RATE OF 10% OF THE TAXES ON AN UNDISCLOSED INCOME AS AGAINST PENALTY RANGE FROM 100% TO 300% U/S 271(1)(C) O F THE ACT. THUS HE SUBMITTED THAT LIBERAL INTERPRETATION SHOULD NOT BE GIVEN. 12. ON THE ISSUE OF INITIATION OF PENALTY , QUA THE ADDITIONAL INCOME , THE LD. DR SUBMITTED THAT IN THE LAST PARAGRAPH OF THE ASSESSMENT ORDER, THE AO HAS STATED THAT PENALTY P ROCEEDINGS U/S 271AAA OF THE ACT HAS BEEN INITIATED SEPARATELY . HE SUBMITTED THAT THE A.O. HAS RECORDED SATISFACTION IN THE ASSESSMENT ORDER AND HENCE PROCEEDINGS TO LEVY PENALTY HAVE BEEN VALIDLY INITIATED ON THE ENTIRE UNDISCLOSED INCOME. HE POINTED OUT TO THE REPLY OF THE ASSESSEE , TO THE NOTICE OF PENALTY AND SUBMITTED THAT THE ASSESSEE HAS ALSO UNDERSTOOD THAT THE INITIATION OF PENALTY WAS QUA ADDITION INCOME OF RS.15.30 CRORES. HE CONTENDED THAT THE ENGLISH TRANSLATION GIVEN BY THE LD.CIT(A) AT PARA 12 & 13 OF HIS ORDER OF THE STATEMENT RECORDED IN HINDI FROM THE ASSESSEE U/S 132(4) I S NOT CORRECT. HE CONTENDED THAT NOTHING MUCH TURNS ON THE TERM CONCEALED INCOME AS IT MEANS AN ACT OF REFRAINING FROM DISCLOSURE AND THUS ALL THE UNDISCLOSED INCOME I S CONCEALED INCOME . HE RELIED ON THE CASE OF MAK DATA PVT. L T D. 358 ITR 593 (SC). THE LD. DR CONTENDED THAT THE ASSESSEE FAIL TO SUBSTANTIATE THE MANNER IN WHICH THE INCOME WAS DERIVED AND TO SPECIFY THE MANNER IN WHICH SUCH INCOME WAS EARNED . HE ARGUED THAT THERE IS NO REQUIREMENT THAT THE SEARCH PARTY SHOULD PUT A QUESTION TO THE AS SESSEE ON THIS ISSUE . HE REFERRED TO PAGE 24 PARA 6 OF THE CIT(A) S ORDER AND RELIED ON THE SAME. HE FURTHER REFERRED PAGE 34 OF CIT(A) S ORDER AND POINTED OUT THAT BOOKS OF ACCOUNTS OF THE ASSESSEE WERE NOT CLOSED TH OUGH THE TIME FOR COMPLETION OF AUDIT HAS ELAPSED. HE CONTENDED THAT THE ASSESSEE HAD AN OPPORTUNITY DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO SPECIFY THE MANNER OF EARNING UNDISCLOSED INCOME AND TO SUBSTANTIATE THE SAME , AND AS THIS OPPORTUNITY WAS NOT AVAILED BY THE ASSESSEE , CANNOT BE GIVEN THE BENEFIT OF SEC.271AAA(2) OF THE ACT. 13 . REFERRING TO THE LETTER FILED BY THE ASSESSEE ON 05.03.2013 BEFORE THE AO THE LD.CIT, D.R. SUBMITTED THAT THE ONLY PRAYER WAS TO KEEP THE PROCEEDINGS 6 I.T.A .NO. 4674 /DEL/201 4 IN ABEYANCE AND THERE WAS NO CONTENTION ARISE ON THE ISSUE OF INITIATION. HE SUBMITTED THAT THE STATEMENT RECORDED WAS FROM ONE SH. VIJAY JINDAL WHO HAS GIVEN A DECLARATION U/S 132(4) OF THE ACT CANNOT BE CONSIDERED AS A DECLARATION OF THE ASSESSEE COMPAN Y. HIS CONTENTION THAT THIS IS A PERSONAL DECLARATION OF SHRI VIJAY JINDAL AND THAT THIS CLEAR FROM THE FACT THAT CERTAIN JEWELLERY HAS BEEN REFERRED TO AND THIS COULD HAVE NOT BEEN A SURRENDER ON BEHALF OF THE COMPANY. HE DISTINGUISH ED THE CASE LAWS RE LIED ON BY THE ASSESSEE AND ARGUED THE ORDER OF THE CIT(A) CONFIRM ING THE PENALTY LEVIED BY THE AO U/S 271AAA BE UPHELD. THE LD. DR REFERRED TO SUB - SECTION (2) OF 271 AAA AND REITERATED THAT THE CONDITION LAID DOWN THEREIN HAVE NOT BEEN SATISFIED ON TH E ASSESSEE. HE REFERRED IN DETAIL TO THE STATEMENT OF MR. VIJAY KUMAR JINDAL AND AFTER ANALYSING THE SAME IN DETAIL , SUBMITTED THAT IT IS CLEAR THAT THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED WAS NOT STATED NO R WAS IT SPECIFIED AS TO WHOSE UNDISCLOSED INCOME THIS WAS. 14. IN REPLY THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT SUBSTANTIAL RIGHTS GUARANTEED UNDER THE STATUTES WOULD PREVAIL OVER FORMS AND PROCEDURES. HE POINTED OUT THAT THE ASSESSEE HAD SUBMITTED THE STATEMENT OF FACTS DURING THE COURSE OF HEARING AS MENTIONED IN FORM NO - 35 . HE STRONGLY OBJECTED TO THESE ARGUMENTS OF THE LD. DR AS DEVOID OF MERIT . ON THE STATEMENT OF VOLUNTARILY SURRENDER GIVEN BY SH. VIJAY JINDAL , H E SUBMITTED THAT SH. VIJAY J I NDAL IS A DIRECTOR OF TH E COMPANY AND THE AO HAD ACCEPTED THIS DISCLOSURE AS DISCLOSURE OF THE COMPANY . HE SUBMITTED THAT AT THIS POINT OF TIME , THE LD. DR CANNOT R A ISE SUCH ISSUES AS OTHERWISE THE ENTIRE ADDITIONS SHOULD BE TAKEN AS WRONGLY MADE BY THE AO IN THE HANDS OF THE A SSESSEE . HE SUBMITTED THAT THE LD. DR COULD NOT POINT OUR ANY CONTRARY JUDGEMENTS OF THE HIGH COURT/TRIBUNAL ON TH E ISSUE OF INITIATION OR ON THE ISSUE OF THE ASSESSEE NOT BEING ASKED A SPECIFIC QUESTION ON THE MANNER OF DERIVING UNDISCLOSED INCOME AND S UBMITTED THAT THE TRIBUNAL SHOULD FOLLOW THE PROPOSITION AS THESE ISSUES LAID DOWN BY THE HON BLE HIGH COURTS AND BY THE CO - ORDINATE BENCHES OF THE TRIBUNAL. 7 I.T.A .NO. 4674 /DEL/201 4 1 5 . RIVAL CONTENTIONS HEARD. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CA SE , A PERUSAL OF THE PAPERS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW , AS WE L L AS CASE LAWS CITED, WE HOLD AS FOLLOWS: - * THE FIRST OBJECTION OF THE LD. DR IS THAT THE STATEMENTS OF FACTS HAVE NOT BEEN FILED BY THE ASSESSEE , IN FORM NO - 35, FILED BEFORE THE CIT(A). THE CIT(A) HAS NOT TREATED THE FORMS FILED BEFORE HIM AS DEFECTIVE. HE ADMITTED THE APPEAL AND ADJUDICATED THE MATTER ON MERITS. THE ORDER OF THE LD. CIT(A), IS THE IMPUGNED ORDER APPEA L ED AGAINST BEFORE US. THE LD. DR WANTS US TO HOLD THAT THE ORDER OF THE LD. CIT(A) IS ILLEGAL AND AGAINST THE LAW AS THERE IS A DEFECT IN FORM NO.35. * IN OUR VIEW THE ARGUMENTS RAISED BY THE LD. DR ARE DEVOID ON MERIT. DEFECTS IN THE RETURN OF INCOME FILED, DEFECTS ON FORM NO - 3 5 WHICH IS THE FORM OF APPEAL ETC. ARE TO BE CONSIDERED BY THE RESPECTIVE AUTHORITIES BEFORE WHOM THESE ARE FILED AND THE MAINTAINABILITY OF THE APPEAL BEFORE US CAN NOT BE CHALLENGED. THE RIGHT OF APPEAL IS A SUBSTANTIVE RIGHT. PROCEDURAL ISSUES CAN N OT TAKE AWAY SU BSTANTIAL RIGHTS OF A PERSON. TH IS CANNOT BE A GROUND FOR THE REVENUE TO CHALLENGE THE ORDER OF THE LD. CIT(A), WHICH IS IN THIS CASE IN FAVOUR OF THE REVENUE. THE ARGUMENTS, TO SAY THE L E A ST ARE FARFETCHED . HENCE W E DISMISS TH E SAME . 1 6 . WE NOW CONSIDERED THE CONTENTION O F THE ASSESSEE THAT PENALTY HAS BEEN INITIATED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS , ONLY WITH RESPECT TO , TWO ITEMS OF ADDITIONAL INCOME. 16.1. WE HAVE PERUSED THE ASSESSMENT ORDER . A T PAGE 17 P ARA 1 THE AO HELD AS FOLLOWS: - THE ABOVE FACT CLEARLY ESTABLISHES THE COLLUSIVE ARRANGEMENT BETWEEN THE ASSESSEE COMPANY (SHARE HOLDERS) AND THE BENEFICIARY (I.E. SVP GROUP) FOR WHICH THE COMPANIES WHO HAVE ADVANCED SUCH CONTRIBUTION MERELY ACTED AS AN C ONDUIT CHANNEL TO BRING BACK THE ASSESSEE S UNACCOUNTED/UNDISCLOSED INCOME UNDER THE QUISE OF SHARE APPLICATION MONEY AND LATER ON RETURNING THESE SHARES TO THE INDIVIDUALS/CONCERNS OF SVP GROUP AT A THROWAWAY PRICE 8 I.T.A .NO. 4674 /DEL/201 4 THIS IS A CALCULATIVE MOVE TO GIVE THESE SHAM TRANSACTIONS THE COLOUR OF GENUINENESS. THEREFORE, IN VIEW OF ABOVE OBSERVATION, CIRCUMSTANCES AND FACTS OF THE CASE, THE AMOUNT OF RS.30,00,000/ - SHOWN AS SHARE APPLICATION MONEY IS TREATED AS ASSESSEE S OWN UNEXPLAINED CASH RECEIPTS INTRODUCED INTO THE ACCOUNT IN THE GARB OF SHARE APPLICATION CONTRIBUTIONS. THE AMOUNT OF RS.30,00,000/ - IS ACCORDINGLY REPRESENTS THE CONCEALED INCOME OF THE ASSESSEE. (EMPHASIS OWN) 17 . AT PAGE 21 PARA 2 IN NO OTHER PART OF THE ORDER, THE TERM CONCEALED INCOME HAS BEEN USED BY THE AO EXCEPT FOR RS.30,00,000/ - THE AO HELD AS FOLLOWS: - WITH THESE REMARKS THE INCOME OF THE ASSESSEE IS ASSESSED ACCORDINGLY KEEPING IN VIEW OF THE FACT THAT THE ASSESSEE HAS ALREADY SURRENDERED RS.15, 00,00,000/ - AGAINST DISCREPANCY IN THE BOOKS OF ACCOUNT AND LOOSE PAPERS AS ADMITTED DURING THE STATEMENT RECORDED U/S 132(4) OF THE I.T.ACT. THE AFORESAID ADDITION ARE COVERED BY THE SURRENDER AMOUNT EXCEPT FOR RS.30,00,000/ - ADDED AS CONCEALED INCOME OF THE ASSESSEE AS DISCUSSED ABOVE. (EMPHASIS OWN) 1 8 . AT PAGE 17 OF THE ASSESSMENT ORDER UNDER THE HEAD OTHER ISSUES , THE AO DISCUSSED THE DISCLOSURE OF R S.10,90,60,000/ - . ON PARA NO - 3 AT PAGE 18 HE HELD AS FOLLOWS: - OTHER ISSUES: 1 . ....................... 2 . ....................... 3 . DOCUMENT A - 163: THIS DOCUMENT CONSISTING OF BUNCH OF LOOSE PAPERS WAS FOUND AT THE PREMISES OF THE ASSESSEE. VIDE ORDER SHEET ENTRY DATED 24.12.2010 THE ASSESSEE WAS ASKED TO EXPLAIN THE DOCUMENT. THE ASSESSEE REPLIED THAT THE SAME HAS BEEN EXPLAINED IN ITS LETTER DATED 12.12.2010. PAGE 1 TO 45 PERTAINS TO AY 2009 - 10 AND CONTAINS CERTAIN TEMPORARILY RECEIPTS ISSUED TOWAR DS AMOUNT RECEIVED IN CASH BY THE CASHIER. IN FACT SOMETIMES CASH IS RECEIVED BY THE CASHIER FROM THE PARTIES WHO VISIT FOR THE BOOKING OF THE FLAT/PAYMENT OF OVERDUE INSTALMENTS AND THE PARTIES BRING CASH FOR THE PAYMENT. AS A MATTER OF 9 I.T.A .NO. 4674 /DEL/201 4 COMPANY S POLICY GENERALLY WE DO NOT ACCEPT PAYMENT IN CASH BUT AT THE SAME TIME AS A MARKETING POLICY AND FOR NOT LOOSING THE CUSTOMER, WE DO NOT SEND BACK THE CUSTOMER. UNDER SUCH CIRCUMSTANCES, CASH IS ACCEPTED BY THE CASHIER IN UCHANTI ACCOUNT AND SAME IS KEPT WITH HIM AGAINST WHICH TEMPORARILY RECEIPT IS ISSUED BY THE CASHIER. YOU WOULD KINDLY APPRECIATE THAT THESE RECEIPTS HAVE NOT BEEN ISSUED ON THE OFFICIAL/PRINTED LETTER HEAD OF THE COMPANY. THE ABOVE CASH IS NOT RECORDED IN THE BOOKS OF THE COMPANY AND IT IS KEPT AS UCHANTI ACCOUNT WITH THE CASHIER. WHEN CHEQUE PAYMENT IS RECEIVED FROM THE CUSTOMER, SUCH CASH IS RETURNED BACK TO THE CUSTOMER. FURTHER WITHOUT PREJUDICE TO THE ABOVE IT IS SUBMITTED THAT DURING AY 2009 - 10, THE ASSESSEE HAVE ALREADY DECLARED AD DITIONAL INCOME OF 10.19 CRORES FOR ANY POSSIBLE LEAKAGE. THIS DOCUMENT PERTAINS TO VARIOUS RECEIPTS BY THE ASSESSEE WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT. THE EXPLANATION OF THE ASSESSEE GIVEN IN THIS LETTER IS NOT ACCEPTABLE BECAUSE THESE DOC UMENTS ARE NOT ENTERED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THEREFORE TOTAL OF TRANSACTIONS, I.E. RS.1,86,01,810/ - IS ADDED TO THE INCOME OF THE ASSESSEE. 19. THEREAFTER AT PAGE 20 PARA 8 SECOND PART, HE STATED AS FOLLOWS: - PENALTY PROCEEDINGS U/S 2 71AAA HAVE BEEN INITIATED RELATING TO DISALLOWANCES/ADDITIONS MADE AS PER PARA 3 RESULTING IN UNDISCLOSED INCOME. 20 . FROM THE ABOVE IT IS CLEAR THAT INITIATION OF PENALTY WAS QUA PARA 3 OF THE INCOME UNDER THE HEAD OTHER INCOME ONLY . THERE IS NO INITIATION OF PENALTY PROCEEDINGS QUA THE OTHER ITEMS OF INCOME IN PARAS 1 AND 2 ETC. EXCEPT AT THE LAST PAGE WHERE THE INITIATION WAS WITH RESPECT TO ONLY CONCEALED INCOME , T HERE IS NO OTHER PLACE WHERE THERE IS INITIATION OF PENALTY P ROCEEDINGS. THUS THE CONTENTIONS OF THE ASSESSEE IN THIS REGARD IS FACTUALLY CORRECT. 10 I.T.A .NO. 4674 /DEL/201 4 2 1. THE SHOW CAUSE NOTICE IS AT PAGE 232 OF THE PAPER BOOK . A PERUSAL OF THE SAME SHOWS THAT IT IS GIVEN ONLY WITH REFERENCE TO PENALTY PROCEEDINGS INITIATED IN THE ORD ER PASSED U/S 143(3) OF THE ACT. HENCE THIS NOTICE IS ALSO REGARDING 2 ITEMS OF INCOME. 22 . THUS A PERUSAL OF ALL THE ABOVE CLEARLY INDICATES THAT INITIATION OF PENALTY PROCEEDINGS ONLY WITH RESPECT TO TWO ITEMS I.E. ( I ) ADDITION MADE OF RS.1 ,86,01,810/ - IN P ARA 3 AT PAGE 18 OF THE ORDER OF THE ASSESSMENT WAS ON THE BASIS OF DOCUMENT A - 163. ( II ) ADDITION MADE OF RS.30,00,000/ - ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED DURING HE YEAR WHICH WAS TREATED AS CONCEALED INCOME OF THE ASSESSEE (SEE PAGE 17 & PAGE 21 OF THE ORDER OF ASSESSMENT). 23 . THUS THE PENALTY LEVIED IN RESPECT OF O THER ITEMS OF INCOME I.E. ON THOSE ITEMS OF INCOME ON WHICH NO PENALTY PROCEEDINGS HAVE BEEN INITIATED IN THE ASSESSMENT ORDER , HAVE TO BE DELETED ON THE GROUND THAT THERE IS NO INIT IATION OF PENALTY BY FOLLOWING THE PROPORTION LAID DOWN BY VARIOUS COURTS AND TRIBUNALS. 24 . THE HON BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS TRIVENI ENGINEERING AND INDUSTRIES LTD. 369 ITR 660 HC (ALL.) ON THE ISSUE OF INITIATION HELD AS FOLLOWS: - HELD FROM THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2000 - 01 IT WAS ABUNDANTLY CLEAR THAT IN RESPECT OF THOSE HEADS WHERE THE ASSESSING OFFICER CONSIDERED IT APPROPRIATE TO INITIATE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C), HE HAD MADE A SPECIFIC DI RECTION TO THAT EFFECT. IN RESPECT OF THE CLAIM OF INTEREST ON THE SUGAR DEVELOPMENT FUND LOAN, THERE WAS NO DIRECTION BY THE ASSESSING OFFICER. THE ABSENCE OF A REFERENCE TO THE INITIATION OF PROCEEDINGS UNDER SECTION 271(1)(C) WAS NOT AN INADVERTENT OM ISSION SINCE IT WAS CLEAR THAT IN RESPECT OF SEVERAL OTHER HEADS, WHEN THE ASSESSING OFFICER DID CONSIDER IT APPROPRIATE TO INITIATE 11 I.T.A .NO. 4674 /DEL/201 4 PENALTY PROCEEDINGS, HE HAD MADE AN OBSERVATION TO THAT EFFECT. INF ACT, EVEN IN THE CONCLUDING PART OF HIS ORDER, THE ASS ESSING OFFICER ISSUED A DIRECTION FOR INITIATING PENALTY NOTICE UNDER SECTION 271(1)(C) AS DISCUSSED ABOVE . THE EXPRESSION AS DISCUSSED ABOVE IS MATERIAL BECAUSE IT REFERS TO THOSE HEADS IN RESPECT OF WHICH A SPECIFIC DIRECTION WAS ISSUED BY HIM FOR I NITIATING STEPS UNDER SECTION 271(1)(C). THE TRIBUNAL WAS JUSTIFIED IN DELETING THE PENALTY UNDER SECTION 271(1)(C) IN RESPECT OF THE SUGAR DEVELOPMENT FUND LOAN. 25. IN THE CASE OF CIT VS LOTUS CONSTRUCTION, THE HON BLE TELANGANA AND ANDHRA PRADESH HIG H COURT IN 370 ITR 475 HELD AS FOLLOWS: - BASICALLY SECTION 271(1) ITSELF INDICATE THAT THE SATISFACTION OR DECISION TO INITIATE PROCEEDINGS MUST ARISE IN THE COURSE OF THE PROCEEDINGS. ADDED TO THAT, SUB - SECTION (1) (B) OF SECTION 271 OF THE ACT MANDATES THAT THE INTENTION OR SATISFACTION TO INITIATE PROCEEDINGS MUST BE EVIDENT FROM THE ORDER OF ASSESSMENT ITSELF, MEANING THEREBY THAT SUCH SATISFACTION NEED NOT BE SUPPORTED WITH OTHER REASONS. IN CHENNAKESAVAS CASE (SUPRA 2) THIS COURT HELD THAT ABSENCE OF ANY MENTION IN THE ORDER OF ASSESSMENT THAT PROCEEDINGS UNDER SECTION 271(C) WOULD BE INITIATED MAKES THE INITIATION OF SUCH PROCEEDINGS, UNTENABLE. 26. THE HON BLE KARNATAKA HIGH COURT IN THE CASE OF 41 TAXMANN.COM 4 9 6 IN THE CASE OF CIT VS M WP LTD. (KAR.) HELD AS FOLLOWS: - IN THE INSTANT CASE IN THE ASSESSMENT ORDER INITIALLY SOMETHING HAD BEEN SAID REGARDING DIMINUTION IN THE VALUE OF INVESTMENT. THEREAFTER, IN THE END, IT WAS STATED THAT PENALTY UNDER SECTION 271(1)(C) INITIATED SEPARATELY. {PARA 12} A READING OF THE ASSESSMENT ORDER MADE IT CLEAR THAT ASSESSING AUTHORITY WAS NOT SATISFIED THAT THERE WAS ANY CONCEALMENT OF THE INTENT. FURTHER NO DIRECTION FOR INITIATION OF PENALTY PROCEEDINGS COULD BE GATHERED FROM THE SAID ORD ER ALSO. IT WAS HELD IN THE CASE OF CIT V MANJUNATHA COTTON & GINNING FACTORY [2013] 218 TAXMAN 423/35 TAXMANN.COM 250 (KAR.) THAT (A) PHRASES LIKE PENALTY PROCEEDINGS ARE BEING INITIATED SEPARATELY (B) PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) ARE INIT IATED SEPARATELY DO NOT COMPLY WITH THE MEANING OF THE WORD DIRECTION AS CONTEMPLATED EVEN IN THE AMENDED PROVISIONS OF LAW. THE DIRECTION SHOULD BE CLEAR AND WITHOUT ANY AMBIGUITY. THE WORD DIRECTION HAS BEEN INTERPRETED BY THE DECISION OF THE APEX CO URT IN THE CASE OF RAJINDER NATH V. 12 I.T.A .NO. 4674 /DEL/201 4 CIT [1979] 120 ITR 14/2 TAXMAN 204, WHERE IT HAS BEEN HELD THAT IN ANY EVENT WHATEVER ELSE IT MAY AMOUNT TO, ON ITS VERY TERMS THE OBSERVATION THAT THE ITO IS FREE TO TAKE ACTION, TO ASSESS THE EXCESS IN THE HAND OF THE CO - OWNERS CANNOT BE DESCRIBED AS A DIRECTION. A DIRECTION BY A STATUTORY AUTHORITY IS IN THE NATURE OF AN ORDER REQUIRING POSITIVE COMPLIANCE. WHEN IT IS LEFT TO THE OPTION AND DISCRETION OF THE ITO WHETHER OR NOT TO TAKE ACTION, IT CANNOT BE DESCRIBED A S A DIRECTION. [PARA 12]. THUS, IN THE ABSENCE OF SUCH A DIRECTION, THE DEEMING PROVISION WAS NOT ATTRACTED. THEREFORE, THE CONDITIONS PRESCRIBED UNDER SECTION 271(1)(C) WERE NOT ATTRACTED. CONSEQUENTLY, THE TRIBUNAL WAS JUSTIFIED IN SETTING ASIDE THE OR DER PASSED BY THE ASSESSING AUTHORITY AS WELL AS THE APPELLATE AUTHORITY, IMPOSING PENALTY. [PARA 13] 27. THE LD. DR HAS NOT CITED ANY CONTRARY DECISION. HIS ARGUMENT THAT ALL THE DISCLOSED INCOME IS CONCEALED INCOME IS DEVOID OF MERIT. A READING OF TH E ASSESSMENT ORDER DOES NOT LEAD US TO SUCH A CONCLUSION. THE ASSESSMENT ORDER IS VERY CLEAR AS TO WHICH ITEMS OF INCOME IS TO BE TREATED AS CONCEALED INCOME AND ON WHICH INCOME PENALTY PROCEEDINGS ARE INITIATED. UNDER THESE CIRCUMSTANCES WE HAVE TO UPHO LD THE CONTENTION OF THE ASSESSEE AND DELETE THE PENALTY LEVIED ON ALL THE OT HER ITEMS OF UNDISCLOSED INCOME ON WHICH THERE IS NO INITIATION OF PENALTY PROCEEDINGS, NOR RECORDING OF SATISFACTION BY THE AO IN THE ASSESSMENT ORDER. 28. ON THE ISSUE OF LEVY OF PENALTY OF UNDISCLOSED INCOME OF R S.30,00,000/ - , THE LD. CIT(A) HAS RIGHTLY DELETED THE SAME AS , IN THE QUANTUM PROCEEDINGS , THE TRIBUNAL HAS DELETED THIS A D DITION. 29. THIS LEAVES WITH US WITH THE ISSUE OF LEVY OF PENALTY ON THE INCOME OF RS.1,86,0 1,810/ - WHICH IS ITEM NO. - 3 OF THE HEAD OF OTHER INCOME . 13 I.T.A .NO. 4674 /DEL/201 4 30. ADMITTEDLY NO QUESTION HAS BEEN ASKED TO THE ASSESSEE, EITHER DURING THE COURSE OF SEARCH OR THEREAFTER , TO SPECIFY THE MANNER IN WHICH THE ASSESSEE HAD DERIVED THIS INCOME NOR TO SUBSTANTIATE THE SAME. THE LD. DR DID NOT CONTR OVERT THIS FACTUAL CONTENTION OF THE ASSESSEE THAT NO QUESTION WAS PUT TO THE ASSESSEE BY THE REVENUE OFFICIALS IN THIS REGARD . A PERUSAL OF THE PAPERS ON RECORD DOES NOT DEMONSTRATE THAT THE REVENUE OFFICIALS HAVE ASKED SUCH A QUESTION TO THE ANSWER EITHER DURING THE COURSE OF SEARCH OR THEREAFTER. 31. UNDER SIMILAR CIRCUMSTANCES TH E DELHI F BENCH OF THE TRIBUNAL IN THE CASE OF ITA NO. - 1835/DEL/2013 IN THE CASE OF MR. S I TA RAM GUPTA VS ACIT ORDER SIGNED BY ONE OF US (AM), AT PARA 12 TO PARA 23 HELD AS FOLLOWS: - 12. IN CIT VS. RADHA KISHAN GOEL (SUPRA) (CLPB 41 - 47), IT HAS BEEN, INTER ALIA, HELD AS FOLLOWS: - 8. SECTION 132 (4) OF THE ACT READS AS FOLLOWS: (4) THE AUTHORIZED OFFICER MAY, DURING THE COURSE OF THE SEARCH OF SEIZURE, EXAMINE ON OATH ANY PERSON WHO IS FOUND TO BE IN POSSESSION OR CONTROL OF ANY BOOKS OF ACCOUNT, DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING AND ANY STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMINATION MAY TH EREAFTER BE USED IN EVIDENCE IN ANY PROCEEDINGS UNDER THE INDIAN INCOME TAX ACT, 1922 (11 OF 1922), OR UNDER THIS ACT. EXPLANATION. FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT THE EXAMINATION OF ANY PERSON, UNDER THIS SUB - SECTION MAY BE NOT MER ELY IN RESPECT OF ANY BOOK OF ACCOUNT, OTHER DOCUMENTS OR ASSETS FOUND AS A RESULT OF THE SEARCH, BUT ALSO IN RESPECT OF ALL MATTERS RELEVANT FOR THE PURPOSES OF ANY INVESTIGATION CONNECTED WITH ANY PROCEEDINGS UNDER THE INDIAN INCOME - TAX ACT, 1922 (11 OF 1922), OR UNDER THIS ACT. 9. FROM A PERUSAL OF EXPLANATION 5 IT IS EVIDENT THAT IN CIRCUMSTANCES WHICH OTHERWISE DID NOT ATTRACT THE PENALTY PROVISIONS OF SECTION 271 (1)(C) OF THE ACT, NOW A DEEMING PROVISION WAS INTRODUCED AS TO ATTRACT THE PENALTY PROV ISIONS TO THOSE CASES AS WELL. BUT AN EXCEPTION IS PROVIDED IN 14 I.T.A .NO. 4674 /DEL/201 4 CLAUSE (2) OF EXPLANATION 5 WHERE THE DEEMING PROVISION WILL NOT APPLY IF DURING THE COURSE OF SEARCH THE ASSESSEE MAKES THE STATEMENT UNDER SUB - SECTION (4) OF SECTION 132 OF THE ACT THAT THE M ONEY, BULLION, JEWELLERY, ETC., FOUND IN HIS POSSESSION HAS BEEN ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCLOSED SO FAR IN HIS RETURN OF INCOME TO BE FURNISHED BEFORE THE EXPIRY OF TIME SPECIFIED IN SECTION 139 OF THE ACT AND ALSO SPECIFIES IN THE STATEMENT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF SUCH INCOME. THE EXCEPTION APPEARS TO BE TO PROVIDE AN OPPORTUNITY TO THE ASSESSEE TO MAKE A CLEAN AND FAIR CONFESSION AND TO SURRENDE R HIS INCOME AND ALSO TO DEPOSIT THE TAX AND INTEREST THEREON WHICH MAY RESULT IN AN AGREED ASSESSMENT. THE PARAMOUNT INTENTION APPEARS TO BE THAT IN THE CASE OF FAIR AND CLEAN CONFESSION AND SURRENDER OF HIS INCOME, DURING THE COURSE OF SEARCH FURTHER LIT IGATION MAY BE AVOIDED AND THE REVENUE MAY GET THE TAX AND INTEREST, ETC., AT AN EARLIEST AND THE ASSESSEE MAY BE SAVED FROM FURTHER LITIGATION. 10. UNDER SECTION 132 (4) OF THE ACT, IT IS THE AUTHORIZED OFFICER, WHO EXAMINES ON OATH ANY PERSON, WHO IS FOU ND TO BE IN POSSESSION OR CONTROL OF ANY BOOKS OF ACCOUNT, DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, THEREFORE, IT IS FOR THE AUTHORIZED OFFICER TO RECORD THE STATEMENT IN HIS OWN WAY. THEREFORE, IT IS NOT EXPECTED FROM THE P ERSON TO STATE THOSE THINGS, WHICH ARE NOT ASKED BY THE AUTHORIZED OFFICER. 11. IT IS A MATTER OF COMMON KNOWLEDGE, WHICH CANNOT BE IGNORED THAT THE SEARCH IS BEING CONDUCTED WITH THE COMPLETED TEAM OF THE OFFICERS CONSISTING OF SEVERAL OFFICERS WITH THE P OLICE FORCE. USUALLY TELEPHONE AND ALL OTHER CONNECTIONS ARE DISCONNECTED AND ALL INGRESS AND EGRESS ARE BLOCKED. DURING THE COURSE OF SEARCH PERSON IS SO TORTURED, HARASSED AND PUT TO A MENTAL AGONY THAT HE LOSES HIS NORMAL MENTAL STATE OF MIND AND AT THA T STAGE IT CANNOT BE EXPECTED FROM A PERSON TO PREEMPT THE STATEMENT REQUIRED TO BE GIVEN IN LAW AS A PART OF HIS DEFENCE. 12.1 IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT UNDER SECTION 132 (4) OF THE ACT UNLESS THE AUTHORIZED OFFICER PUTS A SPECIFIC Q UESTION WITH REGARD TO THE MANNER IN WHICH INCOME HAS BEEN DERIVED, IT IS NOT EXPECTED FROM THE PERSON TO MAKE A STATEMENT IN THIS REGARD AND IN CASE IN THE STATEMENT THE MANNER IN WHICH INCOME HAS BEEN DERIVED HAS NOT BEEN STATED BUT HAS BEEN STATED SUBSE QUENTLY, THAT AMOUNTS TO E COMPLIANCE WITH EXPLANATION 5 (2) OF THE ACT. WE ARE ALSO OF THE OPINION THAT IN CASE THERE IS NOTHING TO THE CONTRARY IN THE STATEMENT RECORDED UNDER SECTION 132 (4) OF THE ACT, IN THE ABSENCE OF ANY SPECIFIC STATEMENT ABOUT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED, IT CAN BE INFERRED THAT SUCH UNDISCLOSED INCOME WAS DERIVED FROM THE BUSINESS WHICH HE WAS CARRYING ON OR FROM OTHER SOURCES. 15 I.T.A .NO. 4674 /DEL/201 4 THE OBJECT OF THE PROVISION IS ACHIEVED BY MAKING THE STATEMENT ADMITTING THE NON - D ISCLOSURE OF MONEY, BULLION, JEWELLERY, ETC. THUS, WE ARE OF THE OPINION THAT MUCH IMPORTANCE SHOULD NOT BE ATTACHED TO THE STATEMENT ABOUT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED. IT CAN BE INFERRED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE ABSENCE OF ANYTHING TO THE CONTRARY. THEREFORE, MERE NON - STATEMENT OF THE MANNER IN WHICH SUCH INCOME WAS DERIVED WOULD NOT MAKE EXPLANATION 5 (2) INAPPLICABLE. 13. THE ABOVE OBSERVATIONS OF THEIR LORDSHIPS WERE MADE WITH REFERENCE TO PENALTY U/S 27 1(1)(C) OF THE IT ACT. 14. IN CIT VS. MAHENDRA C. SHAH , (2008) 299 ITR 305 (GUJ) (CLPB 30 - 40), AGAIN, CONSIDERING THE PENALTY U/S 271 (1)(C) OF THE ACT, FOLLOWING RADHA KISHAN GOEL (SUPRA), IT WAS HELD: - 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 MANNER 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 REASO N IS NOT FAR TO SEEK. IN THE FIRST INSTANCE, THE STATEMENT IS BEING RECORDED IN THE QUESTION AND ANSWER FORM AND THERE WOULD BE NO OCCASION FOR AN ASSESSEE TO STATE AND MAKE AVERMENTS IN THE EXACT FORMAT STIPULATED BY THE PROVISIONS CONSIDERING THE SETTING IN WHICH SUCH STATEMENT IS BEING 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 AN D TO THE POINT REGARDING THE CONDITIONS STIPULATED BY EXCEPTION NO.2 WHILE MAKING STATEMENT UNDER SECTION 132 (4) OF THE ACT. THE VIEW TAKEN BY THE TRIBUNAL AS WELL AS ALLAHABAD HIGH COURT TO THE EFFECT THAT EVEN IF THE STATEMENT DOES NOT SPECIFY THE MANNE R 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. 15. IN NEERAT SINGAL (SUPRA) ( CLPB 60 - 77), FOLLOWING RADHA KISHAN GOEL (SUPRA) AND MAHENDRA C. SHAH (SUPRA), PENALTY LEVIED U/S 271AAA OF THE ACT WAS DELETED. WHILE DOING SO, IT WAS HELD, INTER ALIA, THAT 16. IN VIEW OF ABOVE FACTS OF THE PRESENT CASE WHEREFROM IT IS EVIDENT THAT DURING THE COURSE OF SEARCH PROCEEDINGS THE AUTHORIZED OFFICER OF THE DEPARTMENT HAD NOT RAISED ANY SPECIFIC QUERY REGARDING THE MANNER IN WHICH THE UNDISCLOSED INCOME HAS BEEN DERIVED AND ON THE CONTRARY THE ASSESSEE HAS TRIED TO EXPLAIN THE EARNING OF T HE UNDISCLOSED INCOME IN 16 I.T.A .NO. 4674 /DEL/201 4 QUESTION IN ITS REPLY DURING THE COURSE OF RECORDING OF HIS STATEMENT U/S 132(4) OF THE ACT AND THEREAFTER. WE THUS RESPECTFULLY FOLLOWING THE RATIO OF ABOVE CITED DECISIONS OF HON BLE ALLAHABAD HIGH COURT AND HON BLE GUJARAT HIGH COURT HOLD THAT IN ABSENCE OF QUERY RAISED BY THE AUTHORIZED OFFICER DURING THE COURSE OF RECORDING OF STATEMENT U/S 132 (4) ABOUT THE MANNER IN WHICH THE UNDISCLOSED INCOME HAS BEEN DERIVED AND ABOUT ITS SUBSTANTIATION, THE AO WAS NOT JUSTIFIED IN IMPOSIN G PENALTY U/S 271AAA OF THE ACT SPECIALLY WHEN THE OFFERED UNDISCLOSED INCOME HAS BEEN ACCEPTED AND DUE TAX THEREON HAS BEEN PAID BY THE ASSESSEE. WE THUS WHILE SETTING ASIDE ORDERS OF THE AUTHORITIES BELOW IN THIS REGARD DIRECT THE AO TO DELETE THE PENALT Y OF RS. 12,50,00,000/ - LEVIED U/S 271AAA OF THE ACT. THE GROUND IS ACCORDINGLY ALLOWED. 16. IN NEERAT SINGAL , (SUPRA) (CLPB 60 - 77), IN THE SEARCH AT THE RESIDENTIAL PREMISES OF THE ASSESSEE, CERTAIN DOCUMENTS RELATING TO TRANSACTIONS IN PROPERTIES UNDE RTAKEN BY THE ASSESSEE WERE FOUND AND SEIZED. AS PER THESE DOCUMENTS, THE ASSESSEE HAD AN OUTSTANDING SUM OF RS.3 CRORE AND RS. 6 CRORES FROM VARIOUS PERSONS, WHICH WAS DULY DISCLOSED AS ADDITIONAL INCOME FOR AY 2010 - 11, WHILE MAKING STATEMENT U/S 132 (4) OF THE ACT. ADDITIONALLY, THE ASSESSEE HAD PAID IN CASH A SUM OF ` 17,86,57,781/ - , FOR PURCHASE OF LAND, WHICH WAS ALSO DECLARED AS ADDITIONAL INCOME FOR AY 2010 - 11, WHILE MAKING STATEMENT U/S 132 (4) OF THE ACT. IN THE SAID STATEMENT THE ASSESSEE HAD ADMI TTED THAT HE HAD ENTERED INTO VARIOUS FORWARD/SPECULATIVE AND PROPERTY TRANSACTIONS DURING THE CONCERNED PERIOD. IN VIEW OF THIS, AN INCOME OF RS. 125 CRORES ARISING OUT OF THE SAID TRANSACTIONS WAS DECLARED IN THE STATEMENT RECORDED AT THE TIME OF THE SEAR CH. THIS INCLUDED THE SAID AMOUNT AS UNDISCLOSED. SUBSEQUENTLY, THE TAXES DUE THEREON WERE ALSO PAID AND THE SAME INCOME AS THAT DECLARED IN THE RETURN OF INCOME FILED WAS ALSO ACCEPTED BY THE DEPARTMENT. 17. THE FACTS IN NEERAT SINGAL (SUPRA) ARE, MUTATIS MUTANDIS, UNDISPUTEDLY, EXACTLY SIMILAR TO THOSE PRESENT IN THE APPEALS BEFORE US NOW. THEREIN ALSO, THE MANNER OF DERIVING THE UNDISCLOSED INCOME WAS SUBSTANTIATED WITHOUT GIVING THE DETAILS OF THE TRANSACTIONS AND THE NAMES AND ADDRESSES OF THE PARTIES TO THE TRANSACTIONS. IN BOTH THE MATTERS, THE DECLARED INCOME WAS ACCEPTED AS SUCH BY THE DEPARTMENT ITSELF. IN BOTH THE MATTERS, DUE TAXES WERE PAID. IN BOTH THE MATTERS, SURRENDERS WERE MADE. IN BOTH THE MATTERS, WHAT WAS INQUIRED OF THE ASSESSEE S WAS DULY REPLIED TO BY THEM. THE ANSWER TO THE QUESTION OF SPECIFYING THE MANNER IN WHICH THE UNDISCLOSED INCOME HAD BEEN DERIVED AND SUBSTANTIATED, WAS NOT REJECTED BY THE AO. IN BOTH THE MATTERS THE AUTHORIZED OFFICER DID NOT ASK ANY OTHER SPECIFIC QUE STION OF THE ASSESSEES. NO DECISION CONTRARY TO THE ABOVE DECISIONS HAS BEEN CITED BEFORE US. 17 I.T.A .NO. 4674 /DEL/201 4 18. SECTIONS 271AAA (1) AND (2) OF THE ACT READS AS FOLLOWS: - (1) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISIONS OF THIS AC T, DIRECT THAT, IN A CASE WHERE SEARCH HAS BEEN INITIATED U/S 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007 BUT BEFORE THE 1ST DAY OF JULY, 2012, THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM COMPUTED AT THE RATE O F TEN PERCENT OF THE UNDISCLOSED INCOME OF THE SPECIFIED PREVIOUS YEAR. (2) NOTHING CONTAINED IN SUB - SEC. (1) SHALL APPLY IF THE ASSESSEE, - (I) IN THE COURSE OF THE SEARCH, IN A STATEMENT UNDER SUBSECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPECIFIED THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED; AND (III) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. 19. THUS, EVIDENTLY, P ENALTY U/S 271AAA IS NOT LEVIABLE IF AN ASSESSEE, IN HIS STATEMENT RECORDED DURING THE SEARCH U/S 132 OF THE ACT, ADMITS THE UNDISCLOSED INCOME, SPECIFIES AND SUBSTANTIATES THE MANNER IN WHICH IT HAS BEEN DERIVED AND PAYS THE TAXES DUE THEREON, TOGETHER WI TH INTEREST. HERE, UNDISPUTEDLY, THE ASSESSEE HAS PAID DUE TAX ON THE ADMITTED UNDISCLOSED INCOME. THE QUESTION OF SPECIFYING THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED, STOOD DULY ANSWERED BY THE ASSESSEE BEFORE THE AUTHORITIES. THE SAME WAS ACCEPTED BY THE AO, WITHOUT VARIATION, THIS FACT ITSELF EVIDENCING THE ASSESSEE HAVING PASSED THE TEST OF SECTION 271AAA OF THE ACT. THEN, THERE IS NO SPECIFIC FORMAT/PROCEDURE PRESCRIBED IN THE ACT FOR SPECIFYING AND SUBSTANTIATING AN UNDISCLOSED INCOME. THE STATEMENT OF THE ASSESSEE, SPECIFYING THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED AND SUBSTANTIATED, DID NOT FACE ANY REBUTTAL OR REJECTION AT THE HANDS OF THE AO. AS PER THE STATEMENT RECORDED (WHICH STATEMENT, THOUGH NOT OF THE ASSESSEE I N ITA NO.1835/DEL/2013, WAS OF HIS SON, I.E., THE ASSESSEE IN ITA NO.1836/DEL/2013 AND WAS RATIFIED BY HIM, AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEES BEFORE US), IT HAD BEEN ADMITTED THAT THE ASSESSEE HAD ENTERED INTO VARIOUS TRANSACTIONS OF SALE /PURCHASE OF LAND DURING THE CONCERNED PERIOD. THE INCOME ARISING OUT OF THE SAID TRANSACTIONS WAS DECLARED. THIS INCLUDED THE UNDISCLOSED AMOUNT. LATER, DUE TAXES THEREON WERE ALSO PAID. 20. BESIDES, IN MOTHERS PRIDE EDUCATION PERSONNA PVT. LTD. (SUPRA) (AUTHORED BY ONE OF US THE LD. AM) (CLPB 16 - 21), AGAIN, RADHA KISHAN GOEL (SUPRA) AND MAHENDRA C. SHAH (SUPRA) HAVE BEEN FOLLOWED TO DELETE THE PENALTY LEVIED U/S 271AAA OF THE ACT. 21. RADHA KISHAN GOEL (SUPRA) AND MAHENDRA C. SHAH (SUPRA) HAVE ALSO BEEN FOLLOWED IN SMT. RAJ RANI GUPTA (CLPB 48 - 53), CONCRETE 18 I.T.A .NO. 4674 /DEL/201 4 DEVELOPERS (SUPRA) (CLPB 54 - 59) AND SMT. SULOCHANADEVI A. AGARWAL (SUPRA) (CLPB 23 - 29). 22. FOR THE ABOVE DISCUSSION, WE HOLD THAT THE ASSESSEE HAS SUBSTANTIATED THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED AND THAT BEING SO, THE CONDITION LAID DOWN BY SECTION 271AAA (2) (II) HAS BEEN DULY MET. WE HOLD THAT THEREFORE, THE LD. CIT (A) ERRED IN DECIDING THIS ISSUE AGAINST THE ASSESSEE. 23. CONSEQUENTLY , THE GRIEVANCE OF THE ASSESSEE IS FOUND TO BE JUSTIFIED AND IS ACCEPTED AS SUCH. 32. THE CHENNAI BENCH OF THE ITAT IN THE CASE OF ACIT VS A .N. A NNAMALAI SAMY (HUF) 155 TTJ 98 (CHENNAI) HELD AS FOLLOWS: - YES, - WHETHER FURTHER AMOUNT ADMITTED BY ASSESSEE AT TIME OF SEARCH WAS OFFERED FOR TAXATION AND ASSESSEE HAD PAID TAX WITH INTEREST AND ALSO EXPLAINED ABOUT BUSINESS AND STATED THAT JEWELLERY WAS ACQUIRED OVER A PERIOD OF TIME, THERE WAS NO GROUND TO LEVY PENALTY UNDER SECTION 271AAA. 33. T HE HON BLE D ELHI BENCH OF THE TRIBUNAL IN THE CASE OF NEERAT SINGAL VS ACIT 146 ITD 152 (DEL), HELD AS FOLLOWS: - IN THE INSTANT CASE, THERE IS NO DISPUTE THAT THE ASSESSEE HAS PAID DUE TAX TOGETHER WITH INTEREST ON THE ADMITTED UNDISCLOSED INCOME. THE ONLY DISPUTE IS AS TO WHETHER WHILE DOING SO THE ASSESSEE HAS SPECIFIED AND SUBSTANTIATED THE MANNER IN WHICH IT WAS DERIVED. [PARA 10] ON COMPARING EXPLANATION 5 TO SECTION 271(1)(C) WITH THE PROVISIONS LAID DOWN UNDER SECTION 271 AAA, A LOT OF SIMILARITY IS FOUND THEREIN UNDER WHICH PENALTY IS NOT ATTRACTED IN A CASE OF SEARCH ON THE UNDISCLOSED INCOME. AS PER EXPL ANATION 5 TO SECTION 271 (1)(C), IF THE ASSESSEE IN THE COURSE OF SEARCH MAKES A STATEMENT UNDER SUB - SECTION (4) OF SECTION 132 THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND IN HIS POSSESSION OR UNDER HIS CONTROL HAS BEEN ACQU IRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCLOSED SO FUR IN HIS RETURN OF INCOME TO BE FURNISHED BEFORE THE EXPIRY OF TIME SPECIFIED IN SUB - SECTION (1) OF SECTION 139 AND ALSO SPECIFIES IN THE STATEMENT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AN D PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF SUCH INCOME, THEN THE ASSESSEE FOR SUCH INCOME WILL NOT BE DEEMED TO HAVE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME TO ATTRACT THE PENALTY THEREI N. SIMILARLY, UNDER THE PROVISIONS OF SECTION 271AAA, PENALTY IS NOT LEVIABLE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER 1 - 19 I.T.A .NO. 4674 /DEL/201 4 6 - 2007 BUT BEFORE 1 - 7 - 2012, AND THE ASSESSEE IN THE COURSE OF SEARCH, IN A STATEMENT UNDER THE SUB - SECTION (4) OF SECTION 132,(I), ADMITS THE UNDISCLOSED INCOME (II) SPECIFIES AND SUBSTANTIATES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED, AND (III) PAYS THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. FROM THE READING OF BOTH THESE PENAL PROVISIONS IT IS FOUND THAT ONE REQUIREMENT IS COMMON FOR NON - ATTRACTION OF THE PENAL PROVISIONS UNDER BOTH THE SECTIONS, I. E., IF THE ASSESSEE IN HIS STATEMENTS RECORDED UNDER SECTION 132(4) ADMITS THE UNDISCLOSED INCOME AND SPECIFIES IN THE STATE MENT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF SUCH INCOME. THE ONLY ADDITIONAL REQUIREMENT IN THE CASE OF SECTION 271 AAA IN THIS REGARD IS THAT THE ASSESSEE WILL ALSO HAVE TO SUBSTA NTIATE THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED BESIDES SPECIFICATION OF THE MANNER IN WHICH SUCH INCOME WAS DERIVED. THE OTHER DIFFERENCE IS IN THE APPLICATION OF THE PROVISIONS UNDER BOTH THE SECTIONS. THE PENAL PROVISION UNDER SECTION 271 (1)(C) UNDER EXPLANATION 5 THERETO IS APPLICABLE IN SUCH CASES WHERE SEARCH UNDER SECTION 132 WAS INITIATED BEFORE 1 - 6 - 2007 WHEREAS UNDER SECTION 271AAA, THE PROVISIONS THEREIN ARE APPLICABLE IN A CASE WHERE SEARCH UNDER SECTION 132 HAS BEEN INITIATED ON O R AFTER 1 - 6 - 2007 BUT BEFORE 1 - 7 - 2012. THUS, THE INTENTION OF THE LEGISLATURE IS CLEAR TO THIS EXTENT THAT IN A CASE WHEREIN SEARCH WAS INITIATED BEFORE 1 - 6 - 2007, PROVISIONS UNDER SECTION 271(1 )(C) WILL BE APPLICABLE AND IN CASE OF SEARCH INITIATED AFTER 1 - 6 - 2007 (BUT BEFORE 1 - 7 - 2012) PROVISIONS UNDER SECTION 271AAA WILL BE APPLICABLE. THESE PROVISIONS ARE, THUS, NOT APPLICABLE SIMULTANEOUSLY BUT THESE ARE PERIOD SPECIFIC. [PARA 11] FROM THE FACTS OF THE INSTANT CASE IT IS EVIDENT THAT DURING THE COURSE OF SEARCH PROCEEDINGS THE AUTHORIZED OFFICER OF THE DEPARTMENT HAD NOT RAISED ANY SPECIFIC QUERY REGARDING THE MANNER IN WHICH THE UNDISCLOSED INCOME HAS BEEN DERIVED AND ON THE CONTRARY THE ASSESSEE HAS TRIED TO EXPLAIN THE EARNING OF THE UNDISCLOSED INCO ME IN QUESTION IN ITS REPLY DURING THE COURSE OF RECORDING OF HIS STATEMENT UNDER SECTION 132(4) AND THEREAFTER. IN ABSENCE OF QUERY RAISED BY THE AUTHORIZED OFFICER DURING THE COURSE OF RECORDING OF STATEMENT UNDER SECTION 132(4) ABOUT THE MANNER IN WHICH THE UNDISCLOSED INCOME HAS BEEN DERIVED AND ABOUT ITS SUBSTANTIATION, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN IMPOSING PENALTY UNDER SECTION 271 AAA SPECIALLY WHEN THE OFFERED UNDISCLOSED INCOME HAS BEEN ACCEPTED AND TAX DUE THEREON HAS BEEN PAID BY TH E ASSESSEE. THUS, THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE IN THIS REGARD AND THE ASSESSING OFFICER IS DIRECTED TO DELETE THE PENALTY LEVIED UNDER SECTION 271 AAA. [PARA 16] 20 I.T.A .NO. 4674 /DEL/201 4 34. THE LD. DR COULD NOT RELY AS ANY JUDGEMENT WHICH LAY DOWN CONTRARY P ROPO SITION OF LAW . THE CASE LAWS RELIED UPON BY THE LD. CIT DR ARE NOT DIRECTLY AS THE ISSUE AND HENCE DISTINGUISHABLE. IN VIEW OF THE ABOVE DISCUSSION, C ONSISTENT VIEW IS TAKEN BY THE CO - ORDINATE BENCH OF THE TRIBUNAL ON THE ISSUE, AS THERE IS NO FACTU AL DISPUTE, WE UPH O LD THE CONTENTION O F THE ASSESSEE AND DELETED THE PENALTY IMPOSED U/S 271AAA ON THE ITEM OF INCOME OF RS.1,86,01,810/ - . THUS THE ENTIRE PENALTY LEVIED U/S 271AAA, AS CONFIRMED BY THE LD.CIT(A) IS HEREBY DELETED. 35. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 9 T H OF FEBRUARY 2015. S D / - S D / - (H.S. SIDHU) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 9 / 02/2015 *AMIT KUMAR* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI