Mukesh D. Manglani, Godhra V. The ACIT, Central Circle-1, Baroda

ITA 556/AHD/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1036 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-12-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 09-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMAN K SHAH; FOR
• Assessee Lawyers: APPEALS MUKESH D MANGLANI VS
• Keywords: Business income; Search and seizure; Set aside
• Section: 271(1)(c); 143(3); 153A; 274; 139(1); 48; 73; 13; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER SL. NO(S) ITA NO(S). ASSESSMENT YEAR(S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 556/AHD/2018 2011-12 MUKESH D.MANGLANI 1, SANT KAWAR RAM FALIYA BAHARPURA NR.CIVIL HOSPITAL GODHRA 389 001 PAN:ADFPM 4846 A THE ACIT/DCIT CENTRAL CIRCLE-1 BARODA 2. 557/AHD/2018 2012-13 -DO- ASSESSEE -DO-REVENUE 3. 558/AHD/2018 2013-14 -DO- ASSESSEE -DO-REVENUE 4. 560/AHD/2018 2010-11 SHRI DHANRAJ G.MANGLANI 1215/1, OPP.SWAMINARAYAN COMPLEX BAMROLI ROAD GODHRA 389 001 PAN: AHRPM9553C THE DCIT CENTRAL CIRCLE-1 BARODA 5. 561/AHD/2018 2011-12 -DO- ASSESSEE -DO-REVENUE 6. 562/AHD/2018 2012-13 -DO- ASSESSEE -DO-REVENUE 7. 563/AHD/2018 2013-14 -DO- ASSESSEE -DO-REVENUE 8. 564/AHD/2018 2010-11 KAMLESH D.MANGLANI 1, SANT KAVAR RAM FALIA BAHARPURA ROAD GODHRA 389 001 PAN: ADFPM 4848 Q -DO-REVENUE 9. 565/AHD/2018 2011-12 -DO- ASSESSEE -DO-REVENUE 10. 566/AHD/2018 2012-13 -DO- ASSESSEE -DO-REVENUE 11. 567/AHD/2018 2013-14 -DO- ASSESSEE -DO-REVENUE 12. 568/AHD/2018 2011-12 VINODKUMAR A. CHUGH 3, JYOTI SOCIETY NR. CHANDNI GODHRA 389 001 PAN: ACAPC 7440E -DO-REVENUE 13. 569/AHD/2018 2012-13 -DO- ASSESSEE -DO-REVENUE 14. 587/AHD/2018 2008-09 DHANWANTIBEN C.DARSHIYANI 1, PARTH, THE DCIT CENTRAL CIRCLE-1 ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 2 - VRUNDAVANNAGAR SOCIETY BAMROLI ROAD GODHRA 389 001 PAN:ADPPD 9128 C BARODA 15. 588/AHD/2018 2009-10 -DO- ASSESSEE -DO-REVENUE 16. 589/AHD/2018 2010-11 -DO- ASSESSEE -DO-REVENUE 17. 590/AHD/2018 2011-12 -DO- ASSESSEE -DO-REVENUE 18. 591/AHD/2018 2012-13 -DO- ASSESSEE -DO-REVENUE 19. 592/AHD/2018 2013-14 -DO- ASSESSEE -DO-REVENUE 20. 593/AHD/2018 2007-08 CHUNNILAL P. DARSHIYANI (HUF) 69, VRUNDAVAN NAGAR SOCIETY BAMROLI ROAD, GODHRA 389 001 PAN: AADCG 6787 C -DO-REVENUE 21. 594/AHD/2018 2008-09 -DO- ASSESSEE -DO-REVENUE 22. 595/AHD/2018 2009-10 -DO- ASSESSEE -DO-REVENUE 23. 596/AHD/2018 2010-11 -DO- ASSESSEE -DO-REVENUE 24. 597/AHD/2018 2011-12 -DO- ASSESSEE -DO-REVENUE 25. 598/AHD/2018 2012-13 -DO- ASSESSEE -DO-REVENUE 26. 599/AHD/2018 2013-14 -DO- ASSESSEE -DO-REVENUE ASSESSEES BY : SHRI AMAN K. SHAH, AR AND FOR ITA NOS. 564 TO 567/AHD/2018 SHRI MK PATEL ON BEHALF OF SHRI M.J.SHAH REVENUE BY : SHRI DEELIP KUMAR, CIT-DR / DATE OF HEARING 11/12/2019 / DATE OF PRONOUNCEMENT 18/12/2019 O R D E R PER BENCH: OUT OF THIS BUNCH OF APPEALS, FIRST THREE APPEALS BY THE ASSESSEE (IN THE CASE OF MUKESH D.MANGLANI IN ITA NO.556 TO 558/AHD /2018) ARE DIRECTED AGAINST ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 3 - SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX(A PPEALS)-12 AHMEDABAD (CIT(A) IN SHORT) ALL DATED 22/01/2018 FOR AYS 2011-12, 2012-13 & 2013-14 TOWARDS CONFIRMATION OF PENALTY U/S.271(1)(C) OF TH E INCOME TAX ACT (HEREINAFTER REFERRED TO AS THE ACT). ANOTHER SET OF ASSESSEES FOUR APPEALS (IN THE CASE OF DHANRAJ G. MANGLANI IN ITA NOS.560 TO 563/AHD/2018) ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE CIT(APPEALS)-12, AHMEDABAD ALL DATED 22/01/2018 FO R AYS 2010-11 TO 2013-14 TOWARDS CONFIRMATION OF PENALTY U/S.271 AAB OF THE ACT. ANOTHER SET OF ASSESSEES FOUR APPEALS ( IN THE CAS E OF KAMLESH D.MANGLANI IN ITA NOS.564 TO 567/AHD/2018) ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE CIT(A)- 12, AHMEDABAD ALL DATED 22/01/2018 FOR AYS 2010-11 TO 2013-14 TOWARDS CONFIRMATION OF PENALTY U/S.271(1)(C) OF THE ACT. ANOTHER SET OF ASSESSEES TWO APPEALS (IN THE CASE OF VINODKUMAR A. CHUGH IN ITA NOS.568 & 569/AHD/2018) ARE DIRECTED AGAINST T HE SEPARATE ORDERS OF THE CIT(A)-12, AHMEDABAD BOTH DATED 23/01/2018 FOR A YS 2011-12 AND 2012-13 TOWARDS CONFIRMATION OF PENALTY U/S.271(1)(C) OF TH E ACT. ANOTHER SET OF ASSESSEES SIX APPEALS ( IN THE CASE OF SMT.DHANWANTIBEN C.DARSHIYANI IN ITA NOS.587 TO 592/AHD/2018) ARE DIRECTED AGAINST THE COMMON ORDER OF THE CIT(A)-12, AHMEDABAD DATED 22/01/20 18 FOR AYS 2008-09 TO 2013- 14 TOWARDS CONFIRMATION OF PENALTY U/S.271(1)(C) O F THE ACT. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 4 - ANOTHER SET OF ASSESSEES SEVEN APPEALS ( IN THE CA SE OF CHUNNILAL P.DARSHIYANI (HUF) IN ITA NOS.593 TO 599/AHD/2018) ARE DIRECT ED AGAINST THE SEPARATE ORDERS OF THE CIT(A)-12, AHMEDABAD ALL DATED 23/01/2018 FOR AYS 2007-08 TO 2011-12 TOWARDS CONFIRMATION OF PENALTY U/S.271(1)(C) OF TH E ACT AND 271AAB OF THE ACT FOR AYS 2012-13 & 2013-14. FIRST WE TAKE THE APPEALS IN THE CASE(S) OF DHANWAN TIBEN C. DARSHIYANI : ITA NOS. 587 TO 592/AHD/2018 FOR AYS 2008-09 TO 592 /AHD/2018 THESE ARE SIX APPEALS FILED BY THE ASSESSEE AGAINST THE COMBINED ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-12, AHMEDA BAD, DATED 22/01/2018 THE ASSESSMENT YEARS (AYS) 2008-09 TO 2013-14. SINCE ALL THE APPEALS RELATE TO THE SAME ASSESSEE, HENCE THE SAME ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY WAY OF THI S COMMON ORDER. 2. FIRST WE TAKE UP ASSESSEES APPEAL IN ITA NO. 58 7/AHD/2018 FOR ASST. YEAR 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROU NDS OF APPEAL:- 1.00 IMPOSITION OF PENLATY TO THE TUNE OF RS. 2,89 ,300/- ON ADDITION MADE ON ACCOUNT OF UNDISCLOSED INCOME. 1.01 ON THE FACTS AND CIRCUMSTANCES OF APPELLANT'S CASE AND IN LAW, THE LD. CIT (APPEALS) HAS ERRED IN CONFIRMING THE LEVY OF PENALTY TO THE TUNE OF RS. 2,89,300/- UNDER SECTION 271(1)(C) OF THE ACT BY THE ID. AO ON ADDITION MADE ON ACCOUNT OF DISCLOSURE OF ADDITIONAL INCOME WHILE FILING RETURN AS PART OF SE ARCH PROCEEDINGS. WHILE DOING SO, THE HON'BLE CIT (APPEAL) FAILED TO APPRECIATE THAT THERE WAS NO ADDITION MADE BY THE LD. AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S 153A OF THE ACT TO THE RETURNED INCOME UNDER SECTION 153A O F THE ACT, AND THEREFORE APPELLANT CANNOT BE TREATED TO BE ASSESSEE CONCEALING INCOME. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 5 - 1.02 YOUR APPELLANT PRAYS TO HOLD SO NOW AND DEL ETE THE IMPUGNED PENALTY. 2.00 YOUR APPELLANY CRAVES LEAVE TO ADD, AMEND A ND /OR DELETE ALL OR ANY GROUND(S) TAKE HEREINABOVE. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE LEARNED CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO BY SUSTAINING THE PENALTY OF 2,89,300/- AS PER THE EXPLANATION 5A OF SECTION 271(1)(C) THE OF THE ACT. 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF DEALING IN LAND. THE ASSESSEE IS ALSO A PARTNER IN TWO PARTNERSHIP FIRMS. SHE IS DERIVING INCOME FROM HOUS E PROPERTY, BUSINESS/PROFESSION AND OTHER SOURCES. THERE WAS A SEARCH AND SEIZURE O PERATION UNDER SECTION 132 OF THE ACT IN THE DHANJIMAMA GROUP OF CASES DATED 3 RD JULY 2012. THE ASSESSEE BEING THE PART OF THE GROUP WAS ALSO COVERED UNDER SUCH SEARCH AND SEIZURE OPERATION CARRIED OUT DATED 3 RD JULY 2012. THE ASSESSEE ACCORDINGLY FILED HER RETU RN OF INCOME IN RESPONSE TO THE NOTICE UNDER SECTION 1 53A OF THE ACT DECLARING TOTAL INCOME OF RS. 13,07,960.00 INCLUSIVE OF THE INCOME FROM AGRICULTURAL OPERATION OF RS. 16,136/- ONLY. THE INCOME DECLARED IN THE RETUR N OF INCOME WAS ALSO INCLUSIVE OF THE ADDITIONAL INCOME OF RS. 4,05,795.00 DISCLOSED DURING THE SEARCH. 3.1 THE ASSESSMENT WAS FRAMED BY THE AO UNDER SECTI ON 153A/143(3) OF THE ACT DATED 20 TH MARCH 2015, AFTER MAKING THE ADDITION OF RS. 3,77, 790.00 ON ACCOUNT OF INCOME RELATING TO THE LAND TRANSACTIONS DEALS WHIC H WERE NOT DISCLOSED IN THE BOOKS OF ACCOUNTS, AT THE TOTAL INCOME RS. 16,85,750.00 O NLY. ACCORDINGLY, THE AO INITIATED THE PENALTY PROCEEDINGS UNDER SECTION 271 (1) READ WITH SECTION 274 OF THE ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 6 - ACT ON ACCOUNT OF THE ADDITIONAL INCOME OFFERED IN THE RETURN FILED AND THE ADDITION MADE FOR THE LAND TRANSACTION DEAL AS DISCUSSED ABO VE IN THE ASSESSMENT FRAMED UNDER SECTION 153A/143(3) OF THE ACT. 3.2 THE ASSESSEE IN RESPONSE TO SUCH NOTICE VIDE LE TTER DATED 7 TH AUGUST 2015 SUBMITTED THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH PROCEEDINGS. AS SUCH THE ADDITIONAL INCOME OF RS. 4 ,05,795/- WAS VOLUNTARILY OFFERED. 3.3 SIMILARLY, THE ADDITION OF RS. 3,77,790.00 WAS ACCEPTED AS SHE (THE ASSESSEE) FAILED TO RECORD SUCH TRANSACTION DUE TO OVERSIGHT BUT THE SAME DOES NOT AMOUNT EITHER CONCEALMENT OF INCOME OR FURNISHING INACCURA TE PARTICULARS OF INCOME. MOREOVER ALL THE RELEVANT RECORDS WERE AVAILABLE WI TH THE REVENUE AND THE INFORMATION WAS PROVIDED BY THE REVENUE REGARDING T HE INCOME FROM LAND TRANSACTIONS DEALS. 3.4 THE ASSESSEE ALSO CLAIMED THAT THERE IS NO SPEC IFIC CHARGED MENTIONED IN THE ASSESSMENT/ NOTICE WHETHER IT WAS CONCEALMENT OR FU RNISHING INACCURATE PARTICULARS OF INCOME. 3.5 THE ASSESSEE FURTHER CLAIMED THAT THERE WAS NO DELIBERATE ACT ON HER PART EITHER TO CONCEAL THE INCOME OR FURNISHING THE INAC CURATE PARTICULARS OF INCOME. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 7 - 3.6 IN VIEW OF THE ABOVE, THE ASSESSEE CLAIMED THAT THE ADDITIONAL INCOME OFFERED TO TAX AND THE ADDITION MADE IN THE ASSESSMENT PROC EEDINGS CANNOT BE SAID AS UNDISCLOSED INCOME. 4. HOWEVER, THE AO DISAGREED WITH THE SUBMISSION OF THE ASSESSEE BY OBSERVING THAT THE ADDITIONAL INCOME WAS NOT DISCLO SED BY THE ASSESSEE IN THE RETURN OF INCOME FILED BEFORE THE DATE OF SEARCH UNDER SEC TION 139(1) OF THE ACT. AS SUCH THE ADDITIONAL INCOME WAS DISCLOSED IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 153A OF THE ACT. THUS IT IS CLEAR THAT THE ADDITION AL INCOME WAS OFFERED TO TAX BY THE ASSESSEE ONLY BECAUSE OF THE SEARCH PROCEEDINGS CAR RIED OUT UNDER SECTION 132 OF THE ACT. 4.1 SIMILARLY, THE AO ALSO OBSERVED THAT THE INCOME AMOUNTING TO RS. 3,77,790.00 WAS NOT DISCLOSED IN THE BOOKS OF ACCOU NTS. HAD THERE NOT BEEN A SEARCH, THE IMPUGNED INCOME WOULD HAVE GONE TAX-FREE. THERE FORE THE SAME WAS ADDED AS BUSINESS INCOME TO THE TOTAL INCOME OF THE ASSESSEE . 4.2 IN VIEW OF THE ABOVE, THE AO LEVIED PENALTY OF RS. 2,89,300/- BEING 100% OF THE AMOUNT OF TAX SOUGHT TO BE EVADED UNDER THE PRO VISIONS OF SECTION 271(1) READ WITH EXPLANATION 5A OF THE ACT. 5. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LE ARNED CIT(A) WHO CONFIRMED THE ORDER OF THE AO BY OBSERVING THAT THE ADDITIONAL INCOME DECLARED IN THE RETURN FILED IN RESPONSE TO THE NOTICE ISSUED U NDER SECTION 153A OF THE ACT AND ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 8 - OTHER INCOME WAS DETECTED ONLY BECAUSE OF THE SEAR CH INITIATED UNDER SECTION 132 OF THE ACT. ACCORDINGLY THE LEARNED CIT (A) CONFIRMED THE ORDER OF THE AO. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 6. THE LD. AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1 TO 173 AND SUBMITTED THAT THAT THE ADDITIONAL INCOME WAS OFFER ED TO TAX VOLUNTARILY BY THE ASSESSEE WHICH IS NOT BASED ON ANY SEIZED MATERIALS FOUND DURING THE SEARCH HAVING SOME INCRIMINATING VALUES. SIMILARLY, IN CASE OF TH E ADDITION OF RS. 3,77,790.00 THERE WAS ALSO NOT ANY REFERENCE TO THE INCRIMINATI NG DOCUMENT FOUND DURING THE COURSE OF SEARCH. 6.1 THE LEARNED AR ALSO SUBMITTED THAT SIMILAR KIND S OF PENALTY WERE ALSO LEVIED IN THE GROUP MATTERS, WHICH WERE ALSO THE SUBJECT M ATTER OF THE SAME SEARCH, BY THE REVENUE. BUT THE ITAT HAS DELETED SUCH PENALTY. THE LEARNED AR ALSO FURNISHED THE LIST OF SUCH ORDERS OF THE TRIBUNAL AS DETAILED UND ER: PRAMOD J. DASWANI IT(SS) NO.264/AHD/2017, ITAT ORDER DATED 14/10/2019, AS PER PAGE 73 TO 75 OF PAPER BOOK FILE D ON 13/11/2019. GURUPRASAD INFRASTRUCTURE ITA NO.1658/AHD/2017, I TAT ORDER DATED 19/07/2019, AS PER PAGE 1 TO 11 OF PAPER BOOK FILED ON 13/11/2019. PARAG V.CHUGH ITA NO.581 TO 586/AHD/2018, ITAT OR DER DATED 16/10/2019, AS PER PAGE 102 TO 112 OF PAPER BOOK FI LED ON 13/11/2019. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 9 - 7. ON THE CONTRARY, THE LD. DR SUBMITTED THAT THE A DDITIONAL INCOME WAS OFFERED TO TAX BY THE ASSESSEE AS A RESULT OF SEARCH PROCEE DING CARRIED OUT UNDER SECTION 132 OF THE ACT. THE LD. DR VEHEMENTLY SUPPORTED THE ORD ER OF THE AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE PENALTY IN THE C ASE ON HAND WAS LEVIED UNDER EXPLANATION 5A OF SECTION 271(1)(C) OF THE ACT WHIC H READS AS UNDER: [EXPLANATION 5A.WHERE, IN THE CO URSE OF A SEARCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE ASSESSEE IS FOUND TO BE THE OWNER OF (I) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSETS) AND THE ASSESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILISING (WHOLLY OR IN PART) HIS INCOME FOR ANY PR EVIOUS YEAR; OR (II) ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF ACCOU NT OR OTHER DOCUMENTS OR TRANSACTIONS REPRESENTS HIS INCOME (WHOLLY OR IN PART) FOR ANY P REVIOUS YEAR, WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND, (A) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YE AR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN; OR (B) THE DUE DATE FOR FILING THE RETURN OF INCOME FO R SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN, THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL, FOR THE PURP OSES OF IMPOSITION OF A PENALTY UNDER CLAUSE (C) OF SUB-SECTION (1) OF THIS SECTION, BE DEEMED TO HA VE CO NCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME.] 8.1 A PLAIN READING OF THE PROVISIONS REVEALS THAT THE PENALTY SHALL BE LEVIED IF THE ASSESSEE IN THE COURSE OF SUCH INITIATED UNDER SECTION 132 OF THE ACT WAS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OT HER VALUABLE ARTICLE OR THERE IS SOME INCOME BASED ON THE ENTRY IN THE BOOKS OF ACCO UNTS/DOCUMENTS. THEN, IT SHALL ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 10 - BE PRESUMED THAT THE ASSESSEE HAS EITHER CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. HOWEVER IN THE CASE ON HAND, WE NOTE THAT THERE IS NO SUCH ALLEGATION MADE BY THE AUTHOR ITIES BELOW AS DISCUSSED ABOVE. 8.2 THUS, IT IS TRANSPIRED THAT THE ASSESSEE HAS DI SCLOSED ADDITIONAL INCOME IN THE RETURN ISSUED UNDER SECTION 153A OF THE ACT VOLUNTA RILY AND WITHOUT HAVING FOUND ANY INCOME BY THE REVENUE IN THE MANNER PROVIDED UN DER EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT. AS SUCH, THERE WAS NOT FOUND ANY UNDISCLOSED INCOME BY THE REVENUE IN THE COURSE OF SUCH CONDUCTED UNDER SECTI ON 132 OF THE ACT. 8.3 SIMILARLY, THERE WAS ALSO NO MENTIONED OF ANY I NCRIMINATING DOCUMENT IN RELATION TO THE ADDITION OF RS. 3,77,790.00 ON THE BASIS OF WHICH THE ADDITION WAS MADE BY THE REVENUE. THUS, IT IS INFERRED THAT SUCH ADDITION WAS NOT BASED ON THE DOCUMENT FOUND DURING THE COURSE OF SEARCH. 8.4 NOW THE QUESTION ARISES, WHETHER THE ASSESSEE C AN BE VISITED WITH THE PENALTY WITH RESPECT TO THE INCOME DISCLOSED BY HIM IN SUCH PROCEEDINGS VOLUNTARILY AND WITHOUT FINDING ANY INCRIMINATING DOCUMENT DURING T HE COURSE OF SEARCH. TO OUR MIND THE ANSWER STANDS IN FAVOUR OF THE ASSESSEE. I N HOLDING SO WE DRAW SUPPORT AND GUIDANCE FROM THE ORDER OF ITAT IN THE CASE OF AJAY TRADERS VS. DCIT REPORTED IN 81 TAXMANN.COM 463, WHEREIN IT WAS HELD AS UNDER: THE ASSESSEE DISCLOSED AN ADDITIONAL INCOME ON ACC OUNT OF UNACCOUNTED SALES. BASED ON SAID DISCLOSURES, THE ASSESSING OFFICER IMPOSED PENALTY UNDER SECTION 271(1)(C) BY INVOKING EXPLANATION 5A TO SAID SECTION. HELD THAT IT WAS UNDISPUTED FACT THAT DURING THE CO URSE OF SEARCH, NO INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED. THE ASSESSEE SURRENDERED THE ADDITIONAL INCOME UNDER SECTION 132(4) AT RS.15 LACS AND REQUESTED NOT TO IMPOSE PENALTY UNDE R SECTION 271(1)(C). THE ASSESSING OFFICER IMPOSED THE PENALTY BY INVOKING THE EXPLANATION 5A TO SECTION 271(1)(C). FOR IMPOSING THE ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 11 - PENALTY UNDER EXPLANATION 5A ON THE BASIS OF STATEM ENT RECORDED DURING THE COURSE OF SEARCH, IT IS NECESSARY TO BE FOUND INCRIMINATING DOCUMENTS AND I S TO BE CONSIDERED AT THE TIME OF ASSESSMENT FRAMED UNDER SECTION 153A. AS NO INCRIMINATING DOCU MENTS WERE FOUND DURING THE COURSE OF SEARCH, THEREFORE, EXPLANATION 5A TO SECTION 271(1) (C) IS NOT APPLICABLE. ACCORDINGLY, THE PENALTY WAS TO BE DELETED. 8.5 FROM THE ABOVE ORDER, IT IS CLEAR THAT THERE CA NNOT BE ANY PENALTY UNDER EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT UNTI L AND UNLESS IT SUPPORTED ON THE BASIS OF INCRIMINATING DOCUMENT. 8.6 AT THE TIME OF THE HEARING, A QUERY WAS RAISED TO THE LD. DR WHETHER THE INCOME DISCLOSED BY THE ASSESSEE IN PURSUANCE TO TH E SEARCH WAS BASED ON THE INCRIMINATING DOCUMENT, BUT HE FAILED TO BRING ANY MATERIAL ON RECORD. THEREFORE, IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE, WE INFER T HAT THE ADDITIONAL INCOME OFFERED TO TAX AND ADDITION OF OTHER BUSINESS INCOM E CANNOT BE SUBJECT TO THE PENALTY UNDER EXPLANATION 5A TO SECTION 271(1)(C) OF THE AC T. 8.7 WE ARE ALSO CONSCIOUS TO THE FACT THAT THE IMP UGNED PENALTY WAS DELETED IN THE CASE OF OTHER ASSESSEES WHO WERE PART OF THE GR OUP AND SUBJECT TO THE SAME SEARCH VIS- A-VIS INVOLVING IDENTICAL FACTS AND CIR CUMSTANCES. THE DETAILS OF SUCH CASES HAVE ALREADY BEEN INCORPORATED IN THE SUBMISS ION FILED BY THE ASSESSEE AS DISCUSSED ABOVE. ACCORDINGLY, WE HOLD THAT THERE CA NNOT BE ANY PENALTY UNDER EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT IN T HE GIVEN FACTS AND CIRCUMSTANCES. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOW ED. 9. IN THE RESULT, ASSESSEES APPEAL IN ITA NO.587/A HD/2018 FOR AY 2008-09 IS ALLOWED. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 12 - COMING TO THE OTHER APPEALS FILED BY THE ASSESSEE B EARING ITA NOS. 588 TO 590/AHD/2018 FOR THE A.YS. 2009-10 TO 2011-12 10. AT THE OUTSET WE NOTE THAT IN THE IDENTICAL FAC TS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT VIDE PARAGRAPH NO. 8 OF THIS ORDER. RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE PENALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 11. IN THE RESULT, THESE APPEALS OF THE ASSESSEE AR E ALSO ALLOWED. COMING TO THE ASSESSEES APPEAL BEARING ITA NO. 591 /AHD/2018 FOR THE AY 2012- 13. THE ONLY ISSUE RAISED BY THE ASSESSEE IS THAT THE L D. CIT(A) ERRED IN CONFIRMING THE PENALTY IMPOSED BY THE AO FOR RS. 11,28,165.00 UNDE R SECTION 271AAB OF THE ACT. 12. THE ASSESSEE HAS DISCLOSED ADDITIONAL INCOME OF RS. 1,06,36,545.00 IN PURSUANCE TO THE RETURN FILED UNDER SECTION 153A OF THE ACT. HOWEVER, THE AO FURTHER MADE THE ADDITION OF RS. 2,15,039.00 ON ACC OUNT OF THE INCOME OF LAND TRANSACTIONS DEAL. THUS THE ASSESSMENT WAS FRAMED A FTER MAKING THE IMPUGNED ADDITION TO THE TOTAL INCOME AT RS.1,20,29,399.00 O NLY UNDER SECTION 153A R.W.S. 143(3) OF THE ACT VIDE ORDER DATED 20-03-2015. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 13 - 12.1 SUBSEQUENTLY, THE AO FURTHER ON SUCH ADDITIONA L INCOME DISCLOSED BY THE ASSESSEE AND THE INCOME ADDED IN THE ASSESSMENT LEV IED THE PENALTY OF RS. 11,28,165.00 UNDER THE PROVISIONS OF SECTION 271AAB OF THE ACT. THE LEARNED CIT (A) ALSO CONFIRMED THE ORDER OF THE AO. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) , THE ASSESSEE IS IN APPEAL BEFORE US. 13. THE LEARNED AR BEFORE US SUBMITTED THAT THERE W AS NO UNDISCLOSED INCOME AVAILABLE TO THE ASSESSEE WITHIN THE MEANING OF EXP LANATION (C) TO SECTION 271AAB OF THE ACT. THEREFORE, THERE CANNOT BE ANY PENALTY. 14. ON THE OTHER HAND, THE LEARNED DR VEHEMENTLY SU PPORTED THE ORDER OF THE AUTHORITIES BELOW. 15. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET WE NOT E THAT THE EXPLANATION(C) TO SECTION 271AAB OF THE ACT HAS A DIRECT BEARING ON T HE ISSUE ON HAND WHICH READS AS UNDER: 48 [ PENALTY WHERE SEARCH HAS BEEN INITIATED. 271AAB. (1) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANYT HING 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 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 PR ESIDENT 50 ], THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM , XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX ( C ) 'UNDISCLOSED INCOME' MEANS ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 14 - ( I ) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRESENT ED, 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 I N THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE REL ATING TO SUCH PREVIOUS YEAR; OR ( B ) OTHERWISE NOT BEEN DISCLOSED TO THE 54 [PRINCIPAL CHIEF COMMISSIONER OR] CHIEF COMMISSIONER OR 54 [PRINCIPAL COMMISSIONER OR] COMMISSIONER BEFORE THE DATE OF SEARCH; OR ( II ) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRESENT ED, EITHER WHOLLY OR PARTLY, BY ANY ENTRY IN RESPECT OF AN EXPENSE RECORDED IN THE BOOK S OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO THE SPE CIFIED PREVIOUS YEAR WHICH IS FOUND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED.] 15.1 FROM THE ABOVE PROVISION, IT IS CLEAR THAT THE PENALTY SHALL BE IMPOSED UNDER SECTION 271AAB OF THE ACT WHERE THERE IS UNDISCLOSE D INCOME WITHIN THE MEANING OF THE EXPLANATION TO 271AAB OF THE ACT. HOWEVER, WE NOTE THAT THERE WAS NO DOCUMENTARY EVIDENCE FOUND BY THE SEARCH TEAM SUGGE STING THAT THERE WAS ANY UNDISCLOSED INCOME OF THE ASSESSEE. AS SUCH THE VOL UNTARY INCOME DISCLOSED BY THE ASSESSEE AND THE ADDITION MADE BY THE AO WAS WITHOU T HAVING FOUND ANY INCRIMINATING DOCUMENT IN THE COURSE OF SEARCH. WE ALSO NOTE THAT THERE NO REFERENCE MADE BY THE AUTHORITIES BELOW TO THE DOCUMENTS OF I NCRIMINATING NATURE HAVING BEARING ON THE INCOME OF THE ASSESSEE IN THEIR RESP ECTIVE ORDERS. THE LD. DR HAS NOT ADVANCED ANY ARGUMENTS AGAINST THE CONTENTIONS RAIS ED BY THE LD. AR FOR THE ASSESSEE. IN HOLDING SO WE DRAW SUPPORT AND GUIDANC E FROM THE ORDER OF THE TRIBUNAL IN THE CASE OF ACIT VS. MARVEL ASSOCIATES REPORTED IN 170 ITD 353 WHEREIN IT WAS HELD AS UNDER: 9. PENALTY U/S 271AAB ATTRACTS ON UNDISCLOSED INCOME BUT NOT ON ADMISSION MADE BY THE ASSESSEE U/S 132(4). THE AO MUST ESTABLISH THAT THE RE IS UNDISCLOSED INCOME ON THE BASIS OF INCRIMINATING MATERIAL. IN THE INSTANT CASE A LOOSE SHEET WAS FOUND ACCORDING TO THE A.O., IT WAS INCRIMINATING MATERIAL EVIDENCING THE UNDISCLOSED I NCOME. IN THE PENALTY ORDER THE AO OBSERVED THAT LOOSE SHEET SHOWS THE COST PER SQUARE FEET IS RS.3571/- PER SFT. AND ASSESSEE STATED TO HAVE ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 15 - SUBMITTED IN SWORN STATEMENT COST PER SQ. FEET AT R S.2200/- TO RS.2300/- PER SQ. FEET. HOWEVER NEITHER THE AO NOR THE LD.CIT(A) HAS VERIFIED THE C OST OF CONSTRUCTION WITH THE BOOKS AND PROJECTIONS FOUND AT THE TIME OF SEARCH. THE COUNSE L ARGUED THAT IT WAS MERE PROJECTION BUT NOT THE ACTUALS. THE WRITE UP HEADING ALSO MENTIONED TH AT SUMMARY OF THE PROJECTED PROFITABILITY STATEMENT. THERE IS NO EVIDENCE TO ESTABLISH THAT P ROJECTIONS REFLECTED IN THE LOOSE SHEET IS REAL. NO OTHER MATERIAL WAS FOUND DURING THE COURSE OF SE ARCH INDICATING THE UNDISCLOSED INCOME. THERE WAS NO MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE OR THING OR ENTRY IN THE BOOKS OF ACCOUNTS OR DOCUMENTS TRANSACTIONS WERE FOUND DURIN G THE COURSE OF SEARCH INDICATING THE ASSETS NOT RECORDED IN THE BOOKS OF ACCOUNTS OR OTHER DOCU MENTS MAINTAINED IN THE NORMAL COURSE, WHOLLY OR PARTLY. THE REVENUE DID NOT FIND ANY UNDI SCLOSED ASSET, ANY OTHER UNDISCLOSED INCOME OR THE INFLATION OF EXPENDITURE DURING THE SEARCH/ ASS ESSMENT PROCEEDINGS. THOUGH A LOOSE SHEET OF PAGE NO.107 OF ANNEXURE A/GS/MA/1 WAS FOUND THAT DO ES NOT INDICATE ANY SUPPRESSION OF INCOME BUT IT IS ONLY PROJECTION OF PROFIT STATEMENT. THE AMOUNT OF RS.3571/- MENTIONED IN THE PROJECTIONS REFERS TO COST AND PROFIT WHICH IS APPROXIMATE SALE PRICE BUT NOT THE COST AS STATED BY THE AO IN THE PENALTY ORDER. THE COST OF CONSTRUCTION IN THE PROJECTIONS PROJECTED AT RS.2177/- WHICH IS IN SYNCH WITH THE STATEMENT GIVEN BY THE ASSESSEE. THE AO WAS HAPPY WITH THE DISCLOSURE GIVEN BY THE ASSESSEE AND DID NOT VERIFY THE FACTUAL POSITIO N WITH THE BOOKS OF ACCOUNTS AND PROJECTIONS AND BRING THE EVIDENCE TO UNEARTH THE UNDISCLOSED I NCOME. NEITHER THE A.O. NOR THE INVESTIGATION WING LINKED THE COST OF PROFIT OR COST OF ASSET TO THE ENTRIES IN THE BOOKS OF ACCOUNTS OR TO THE SALE S CONDUCTED BY THE ASSESSEE TO THE SALE DEEDS. THEREF ORE, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE REVENUE THAT THE LOOSE SHEET FOUND DURING THE C OURSE OF SEARCH INDICATES ANY UNDISCLOSED INCOME OR ASSET OR INFLATION OF EXPENDITURE. THE HO N'BLE ITAT DELHI BENCH IN THE CASE OF AJAY SHARMA V. DY. CIT [2013] 30 TAXMANN.COM 109 HELD THAT WITH RESPECT TO THE ADDITION ON ACCOUNT OF ALLEGED RECEIVABLES AS PER SEIZED PAPER, THERE I S NO DIRECT MATERIAL WHICH LEADS AND ESTABLISHES THAT ANY INCOME RECEIVED BY THE ASSESSEE HAS NOT BE EN DECLARED BY THE ASSESSEE. AN ADDITION HAS BEEN MADE ON THE BASIS OF LOOSE DOCUMENT, WHICH DID NOT CLOSELY PROVE ANY CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS BY THE ASSESSE E. HENCE PENALTY U/S 158BFA (2) OF THE ACT IS NOT LEVIABLE. THE FACTS OF THE ASSESSEE'S CASE SHOWS THAT THERE W AS NO UNDISCLOSED INCOME FOUND DURING THE COURSE OF SEARCH AND NO INCRIMINATING MATERIAL WAS FOUND, HENCE WE HOLD THAT THERE IS NO CASE FOR IMPOSING PENALTY U/S 271AAB OF THE ACT, ACCORDINGLY , WE SET ASIDE THE ORDER OF THE LOWER AUTHORITIES AND CANCEL THE PENALTY U/S 271AAB OF TH E ACT. 15.2 WE ARE ALSO CONSCIOUS TO THE FACT THAT THE IMP UGNED PENALTY WAS DELETED IN THE CASE OF OTHER ASSESSEES WHO WERE PART OF THE GR OUP AND SUBJECT TO THE SAME SEARCH VIS-A-VIS INVOLVING IDENTICAL FACTS AND CIRC UMSTANCES. THE DETAILS OF SUCH CASES HAVE ALREADY BEEN INCORPORATED IN THE SUBMISS ION FILED BY THE ASSESSEE AS DISCUSSED ABOVE SOMEWHERE IN THE PRECEDING PARAGRAP H. IN VIEW OF THE ABOVE, WE ARE NOT CONVINCED WITH THE PENALTY LEVIED BY THE AU THORITIES BELOW. HENCE WE SET ASIDE THE ORDER OF THE LD. CIT-A AND DIRECT THE AO TO DELETE THE PENALTY LEVIED BY ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 16 - HIM UNDER SECTION 271 AAB OF THE ACT. HENCE THE GRO UND OF APPEAL OF THE ASSESSEE IS ALLOWED. 15.3. IN THE RESULT, THE APPEAL OF THE ASSESSE E IN ITA NO.591/AHD/2018 FOR AY 2012-13IS ALLOWED. COMING TO THE OTHER APPEAL FILED BY THE ASSESSEE BE ARING ITA NO. 592/AHD/2018 FOR THE AY 2013-14 16. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL FA CTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271AAB OF THE ACT VIDE PARAGRAPH NO. 15 OF THIS ORDER IN THE OWN CASE OF THE ASSESSEE IN ITA NO.591/AHD/2018. RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE PEN ALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENC E, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.592/AHD/2018 FOR AY 2013-14 IS ALLOWED. COMING TO THE APPEAL OF THE ASSESSEE IN THE CASE (S ) OF VINODKUMAR A. CHUNG: COMING TO ITA NO. 568/AHD/2018 FOR THE AY 2011-12 18. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL F ACTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT VIDE PARAGRAPH NO. 8 OF THIS ORDER IN THE CASE OF DHANWANTIBEN C. DARSHI YANI (SUPRA) IN ITA NO. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 17 - 587/AHD/2018 . RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE PENALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE L D. CIT (A). HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.568/AHD/2018 FOR AY 2011-12 IS ALSO ALLOWED. COMING TO ITA NOS. 569/AHD/2018 FOR THE AY 2012-13 20. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL F ACTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271AAB OF THE ACT VIDE PARAGRAPH NO. 15 OF THIS ORDER IN THE CASE OF DHANWANTIBEN C. DAR SHIYANI (SUPRA) IN ITA NO. 591/AHD/2018. RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE PENALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 21. IN THE RESULT THE APPEAL OF THE ASSESSEE IN ITA NO.569/AHD/2018 FOR AY 2012-13 IS ALLOWED. COMING TO THE ASSESSEE APPEALS IN THE CASE(S) OF MU KESH B. MANGLANI: COMING TO ITA NOS. 556/AHD/2018 FOR THE AY 2011-12 22. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL F ACTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT VIDE PARAGRAPH NO. 8 OF THIS ORDER IN THE CASE OF DHANWANTIBEN C. DARSHI YANI (SUPRA) IN ITA NO. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 18 - 587/AHD/2018 . RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE P ENALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 23. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.556/AHD/2018 FOR AY 2011-12 IS ALSO ALLOWED. COMING TO ITA NOS. 557 & 558/AHD/2018 FOR THE AYS 2 012-13 AND 2013-14 24. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL F ACTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271AAB OF THE ACT VIDE PARAGRAPH NO. 15 OF THIS ORDER IN THE CASE DHANWANTIBEN C. DARSHI YANI (SUPRA) IN ITA NO. 591/AHD/2018. RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE PENALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENCE, THE GROUND OF APPEAL(S) OF THE ASSESSEE IS ALLOWED. 25. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE IN ITA NOS.557 & 558/AHD/2018 FOR AYS 2012-13 & 2013-14 ARE ALLOWED. COMING TO ASSESSEE APPEALS IN THE CASE(S) OF DHANRA J G. MANGLANI COMING TO ITA NOS. 560 & 561/AHD/2018 FOR THE AYS 2 010-11 & 2011-12 26. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL F ACTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT VIDE PARAGRAPH NO. 8 OF THIS ORDER IN THE CASE OF DHANWANTIBEN C. DARSHI YANI (SUPRA) IN ITA NO. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 19 - 587/AHD/2018 . RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE P ENALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENCE, THE GROUND OF APPEAL(S) OF THE ASSESSEE IS ALLOWED. 27. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE IN ITA NOS.560 & 561/AHD/2018 FOR AYS 2010-11 & 2011-12 ARE ALSO ALL OWED. COMING TO ITA NOS. 562 & 563/AHD/2018 FOR THE AYS 2 012-13 & 2013-14 28. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL F ACTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271AAB OF THE ACT VIDE PARAGRAPH NO. 15 OF THIS ORDER IN THE CASE DHANWANTIBEN C. DARSHI YANI (SUPRA) IN ITA NO. 591/AHD/2018. RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE PENALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENCE, THE GROUND OF APPEAL(S) OF THE ASSESSEE IS ALLOWED. 29. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE IN ITA NOS.562 & 563/AHD/2018 FOR AYS 2012-13 & 2013-14 ARE ALLOWED. COMING TO ASSESSEE APPEALS IN THE CASE(S) OF CHUNNI LAL P. DARSHIYANI (HUF): COMING TO ITA NOS. 593 TO 597/AHD/2018 FOR THE AY 2 007-08 TO 2011-12 30. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL F ACTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT VIDE PARAGRAPH NO. 8 OF THIS ORDER IN THE CASE OF DHANWANTIBEN C. DARSHI YANI (SUPRA) IN ITA NO. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 20 - 587/AHD/2018 . RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE P ENALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENCE, THE GROUND OF APPEAL(S) OF THE ASSESSEE IS ALLOWED. 31. IN THE RESULT, ALL THE FIVE APPEALS OF THE ASSE SSEE IN ITA NO.593 TO 597/AHD/2018 FOR AYS 2007-08 TO 2011-12 ARE ALSO AL LOWED. COMING TO ITA NOS. 598 & 599/AHD/2018 FOR THE AYS 2 012-13 & 2013-14 32. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL F ACTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271AAB OF THE ACT VIDE PARAGRAPH NO. 15 OF THIS ORDER IN THE CASE DHANWANTIBEN C. DARSHI YANI (SUPRA) IN ITA NO. 591/AHD/2018. RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE PENALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENCE, THE GROUND OF APPEAL(S) OF THE ASSESSEE IS ALLOWED. 33. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE IN ITA NOS.588 & 599/AHD/2018 FOR AYS 2012-13 & 2013-14 ARE ALLOWED. COMING TO ASSESSEE APPEALS IN THE CASE(S) OF KAMLES H D. MANGALANI 34. THE LEARNED COUNSEL FOR THE ASSESSEE, AT THE TI ME OF HEARING, SOUGHT AN ADJOURNMENT BUT WE DECLINE THE SAME ON THE REASONIN G THAT THE IMPUGNED APPEALS WERE PART OF THE GROUP LISTED TODAY FOR HEARING. TH EREFORE, WE DEEMED APPROPRIATE TO HEAR THESE APPEALS TOO ALONG WITH THE OTHER APPEALS WHO ARE PART OF THE GROUP. ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 21 - HOWEVER, SHRI M.K. PATEL, THE LEARNED COUNSEL FOR T HE ASSESSEE HAS BEEN TAKEN ON RECORD AS PROXY COUNSEL ON BEHALF OF SHRI M.J. SHAH (THE COUNSEL FOR THE ASSESSEE) AS HE (SHRI M.K. PATEL ) CLAIMED TO HAVE OBTAINED THE CONSENT FROM SHRI M.J. SHAH. ACCORDINGLY, WE PROCEED TO ADJUDICATE THE ISSUE ON HAND AFTER HEARING THE PROXY COUNSEL AS DISCUSSED ABOVE. COMING TO ITA NOS. 564 & 565/AHD/2018 FOR THE AYS 2 010-11 & 2011-12 34. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL F ACTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT VIDE PARAGRAPH NO. 8 OF THIS ORDER IN THE CASE OF DHANWANTIBEN C. DARSHI YANI (SUPRA) IN ITA NO. 587/AHD/2018 . RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE P ENALTY IMPOSED BY THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENCE, THE GROUND OF APPEAL(S) OF THE ASSESSEE IS ALLOWED. 35. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE IN ITA NOS.564 & 565/AHD/2018 FOR AYS 2010-11 & 2011-12 ARE ALSO ALL OWED. COMING TO ITA NOS. 566 & 567/AHD/2018 FOR THE AYS 2 012-13 & 2013-14 36. AT THE OUTSET, WE NOTE THAT IN THE IDENTICAL F ACTS AND CIRCUMSTANCES, WE HAVE DELETED THE PENALTY IMPOSED UNDER SECTION 271AAB OF THE ACT VIDE PARAGRAPH NO. 15 OF THIS ORDER IN THE CASE DHANWANTIBEN C. DARSHI YANI (SUPRA) IN ITA NO. 591/AHD/2018. RESPECTFULLY, FOLLOWING THE SAME, WE DELETE THE PENALTY IMPOSED BY ITA NOS.556/AHD/2018 AND 25 APPEALS MUKESH D.MANGLANI VS. DCIT AND 5 OTHERS AYS 2007-08 TO 2013-14 - 22 - THE AO WHICH WAS SUBSEQUENTLY CONFIRMED BY THE LD. CIT (A). HENCE, THE GROUND OF APPEAL(S) OF THE ASSESSEE IS ALLOWED. 37. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE IN ITA NOS.566 & 567/AHD/2018 FOR AYS 2012-13 & 2013-14 ARE ALLOWED. 38. IN THE COMBINED RESULT, ALL THE TWENTY-SIX APPEALS FILED BY THE ASSESSEES ARE ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 18 / 12 /2019 SD/- SD/- ( RAJPAL YADAV ) ( WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 18/ 12 /2019 .. ,.../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! '#$ $ % / CONCERNED CIT 4. $ $ % ( ) / THE CIT(A)-12, AHMEDABAD 5. ()*'# , $ '# , ! / DR, ITAT, AHMEDABAD 6. *./0 / GUARD FILE. / BY ORDER, ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD