OPTIONS DEVELOPRS AND BUILDERS, MUMBAI V. DCIT CE CIR 22, MUMBAI

ITA 7129/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3671 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 05-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDHA RAMCHANDRAN DR
• Assessee Lawyers: VIJAY KOTHARI
• Keywords: Search and seizure; Loose papers; Document seized; Question of law; Revised return; Documents seized
• Section: 69C; 153A; 32; 27; 148; 132; 139

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.7129/MUM/2013 ASSESSMENT YEAR: 2010-11 OPTIONS DEVELOPERS & BUILDERS, 10, MITHILA SHOPPING CENTRE GROUND FLOOR, V. M. ROAD, JUHU SCHEME VILE PARLE (W) MUMBAI-400049 / VS. ACIT, CENTRAL CIRCLE-22, ROOM NO.465, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( /ASSESSEE) ( ! / REVENUE) PAN. NO . AAAFO6752F / ASSESSEE BY SHRI VIJAY KOTHARI ! / REVENUE BY MS. SUDHA RAMCHANDRAN-DR ' !# $ % / DATE OF HEARING : 05/05/2016 $ % / DATE OF ORDER: 16/05/2016 ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 11/09/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THE PRESENT APPEAL PERTAINS T O LEVYING PENALTY U/S 271AAA(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), AMOUNTING TO RS.84,58,000/-. 2. DURING HEARING, SHRI VIJAY KOTHARI, LD. COUNSEL FOR THE ASSESSEE, CONTENDED THAT SEARCH OPERATION U/S 1 32 OF THE ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 16/11/2009 AND ON THE SAME DATE, THE STATEMENT W AS RECORDED BY THE OFFICER. THE ASSESSEE DISCLOSED INC OME OF RS.8.45 CRORES AND PAID TAXES THEREON. THE INCOME W AS EXPLAINED TO BE EARNED FROM BUSINESS. THE AUTHORIZE OFFICER, WHILE RECORDING THE STATEMENT, DID NOT ASK THE MANN ER OF EARNING THE INCOME, THEREFORE, THERE IS NO QUESTION OF IMPOSITION OF PENALTY U/S 271AAA OF THE ACT. IT WA S EXPLAINED BY THE LD. COUNSEL THAT THE STARTING POINT IS THE F ILING OF RETURN AND IT WAS THE DUTY OF THE ASSESSING OFFICER/AUTHOR IZE OFFICER TO GUIDE THE ASSESSEE AS THE ASSESSEE IS MERELY A L AYMAN. THE ASSESSEE WAS NEVER MADE AWARE ABOUT THE REQUIREMENT OF THE LAW. THE LD. COUNSEL PLACED RELIANCE UPON THE FOLLO WING DECISIONS :- I. CIT VS MAHENDRA C. SHAH (2008) 299 ITR 305 (GUJ.); 215 CIT 493 (GUJ.). ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 3 II. CIT VS RADHA KISHAN GOYAL 278 ITR 454 (ALL.), III. DCIT VS MR. HAFEEZ S. CONTRACTOR (ITA NO.6415/MUM/201 3) ORDER DATED 02/09/2015, IV. ACIT(OSD) VS M/S KANAKIA SPACES PVT. LTD. (ITA NO.6763/MUM/2011) ORDER DATED 10/07/2013, V. SHRI UDAY C TAMHANKAR VS DCIT (ITA NO.711 TO 715 /MUM/2011, ETC), ORDER DATED 11/09/2015, VI. SUDHA GUPTA VS DCIT (ITA NO.5445/DEL./2012) ORDER D ATED 22/08/2014, VII. SPS STEEL AND POWER LTD. VS ACIT (ITA NO.1391- 1414/KOL/2011) ORDER DATED 30/06/2015, VIII. SMT. RAJ RANI GUPTA VS DCIT (ITA NO.3371/DEL/2011) OR DER DATED 30/03/2012, IX. DCIT VS SHRI RAJIV CHOPRA (ITA NO.990/CHD/2014) ORD ER DATED 27/11/2015, X. JANAK MADHUSUDAN VAKHARIA VS ACIT (ITA NO.2900/MUM/2012) ORDER DATED 26/07/2013, XI. DCIT VS NECTOR LIFE SCIENCE LTD. (ITA NO.107/CHD/2015 ) ORDER DATED 27/11/2015, XII. DCIT VS SHRI BANARSIDAS R. JINDAL (ITA NO.1436/PN/2 013, ETC) ORDER DATED 26/06/2015, XIII. JCIT VS M/S CASTAL EXTRUSION PVT. LTD. (ITA NO.1269/KOL/2012, ETC), ORDER DATED 24/09/2015. 2.1. OUR ATTENTION WAS FURTHER INVITED TO QUESTION NUMBER-8 (PAGE 36 OF THE PAPER BOOK), QUESTION NUMB ER 3, PAGES 46 AND 47 OF THE PAPER BOOK, PAGE-48, QUESTIO N NUMBER ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 4 6 (PAGE -57 OF THE PAPER BOOK) BY FURTHER EXPLAININ G THAT THE NAME OF THE PARTIES WAS ALSO DISCLOSED AND SURVEY W AS CONDUCTED ON THESE PARTIES. SO FAR AS, THE DOCUMENT S WERE CONCERNED, THESE WERE EXPLAINED TO BE DUMP DOCUMENT (PAGES 60 TO 62 OF THE PAPER BOOK) BUT DUE TO BUY PEACE DI SCLOSURE OF ADDITIONAL INCOME WERE MADE BY THE ASSESSEE. OUR AT TENTION WAS INVITED TO PAGE-2 OF THE PAPER BOOK ALONG WITH PAGE-12 OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL ) (PARA-1) EVIDENCING THAT DISCLOSURE WAS MADE TO BUY PEACE WI TH THE DEPARTMENT. THE LD. COUNSEL ALSO INVITED OUR ATTENT ION TO THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2009-10 (PAGE- 3 LAST PARA), WHEREIN, EVEN THE ASSESSING OFFICER HAS RECO RDED. IT WAS ASSERTED THAT PARTIES WERE IDENTIFIED AND VERIF ICATION OF THE NOTING WAS NEVER MADE INDEPENDENTLY BY THE DEPARTME NT, WHICH REVEALS THAT THERE WAS NO SUCH TRANSACTION. THE EXPLANATION OF THE ASSESSEE WAS CLAIMED TO CROSS VE RIFIED. 2.2. ON THE OTHER HAND, THE LD. DR, MS. SUDHA RAMACHANDRAN, DEFENDED THE IMPOSITION OF PENALTY BY PLACING RELIANCE UPON THE PENALTY ORDER/IMPUGNED ORDER AND RELIED UPON THE DECISION OF THE TRIBUNAL IN THE CASE OF AC IT VS PRAKASH STEELAGE LTD. (2015) 55 TAXMAN.COM 284 (MUM ). 2.3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S, IN BRIEF, ARE THAT THE ASSESSEE IS A BUILDER/DEVELOPER. A SE ARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CARRIED OUT A T THE BUSINESS PREMISES AND RESIDENCES OF THE PARTNERS ON ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 5 16/11/2009. SHRI GANGDAS PATEL, PARTNER, OFFERED R S.8.45 CRORES AS ADDITIONAL INCOME, DURING RECORDING OF ST ATEMENT U/S 132(4) OF THE ACT, BEING EARNINGS FROM CONSTRUC TION ACTIVITY (THE AMOUNT NOT RECORDED IN BOOKS OF ACCOU NTS). DURING SEARCH, CERTAIN LOOSE PAPERS WERE FOUND FROM THE POSSESSION OF ONE OF THE EMPLOYEE NAMELY SHRI RAJU PATEL. THE SAID LOOSE PAPERS NO.3, 14, 35 AND 39 ARE AVAILABLE AS ANNEXURE A-3 TO WRITTEN SUBMISSION FILED BEFORE COM MISSIONER OF INCOME TAX (APPEAL). THIS DISCLOSURE OF ADDITION AL INCOME WAS MADE BY THE ASSESSEE TO BUY PEACE AND TO AVOID LITIGATION AND PENALTIES (PAGE 2 OF THE WRITTEN SUBMISSIONS). THE ASSESSEE ALSO PAID TAXES ON THE DISCLOSED ADDITIONA L INCOME. THE LD. ASSESSING OFFICER INITIATED PENALTY PROCEED INGS U/S 271AAA OF THE ACT ON THE UNDISCLOSED INCOME (DISCLO SED DURING RECORDING OF STATEMENT) OF RS.8,45,00,000/- AND UNACCOUNTED CASH OF RS.80,000/- ON ACCOUNT OF UNEXP LAINED EXPENDITURE. THE BASIS FOR INITIATING PENALTY BY TH E ASSESSING OFFICER IS THAT THE ASSESSEE WAS UNABLE TO SUBSTANT IATE THE MANNER OF EARNING THE UNDISCLOSED INCOME, WHEREAS, THE STAND OF THE ASSESSEE IS THAT THE UNDISCLOSED INCOM E (ADMITTED DURING RECORDING OF STATEMENT) WAS STATED TO BE OUT OF BUSINESS ACTIVITY/CONSTRUCTION ACTIVITY AND PAID DU E TAXES THEREUPON. BEFORE PROCEEDING FURTHER, WE ARE REPROD UCING HEREUNDER THE RELEVANT PROVISION OF SECTION 271AAA OF THE ACT FOR READY REFERENCE AND ANALYSIS:- 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 UND ER SECTION ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 6 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE ASSE SSEE 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) NOTHING CONTAINED IN SUB-SECTION (1) SHALL APPL Y IF THE ASSESSEE, (I ) IN THE COURSE OF THE SEARCH, IN A S TATEMENT UNDER SUB- SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II ) SUBSTANTIATES THE MANNER IN WHICH T HE UNDISCLOSED INCOME WAS DERIVED; AND (III ) PAYS THE TAX, TOGETHER WITH INTERES T, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. (3) NO PENALTY UNDER THE PROVISIONS OF CLAUSE (C) O F SUB-SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESS EE IN RESPECT OF THE UNDISCLOSED INCOME REFERRED TO IN SU B-SECTION (1). (4) THE PROVISIONS OF SECTIONS 274 AND 275 SHALL, S O 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 YEA R 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 O F SEARCH IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN T HE NORMAL COURSE RELATING TO 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 YEA R REPRESENTED, EITHER WHOLLY OR PARTLY, BY ANY ENTRY IN RESPECT OF AN EXP ENSE RECORDED IN THE BOOKS 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 CONDUCT ED; (B ) 'SPECIFIED PREVIOUS YEAR' MEANS THE PREVIOUS YEAR (I) WHICH HAS ENDED BEFORE THE DATE OF SEARC H, BUT THE DATE OF FILING THE RETURN OF INCOME UNDER SUB-SECTION (1) O F SECTION 139 FOR SUCH YEAR HAS NOT EXPIRED BEFORE THE DATE O F SEARCH AND THE ASSESSEE HAS NOT FURNISHED THE RETURN OF IN COME FOR THE PREVIOUS YEAR BEFORE THE SAID DATE; OR (II) IN WHICH SEARCH WAS CONDUCTED.] ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 7 2.4. IF THE AFORESAID PROVISION OF THE ACT IS A NALYZED AS PER SUB-SECTION (1), THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION TO TAX, IF ANY, PAYABLE BY HIM, A SUM C OMPUTED AT THE RATE OF 10% OF THE UNDISCLOSED INCOME OF THE SP ECIFIED PREVIOUS YEAR. HOWEVER, SUB-SECTION 271AAA(2) SAYS THAT SUB- SECTION (1) SHALL APPLY, IF THE ASSESSEE (I) IN THE COURSE OF SEARCH, IN A STATEMENT UNDER S ECTION 132(4), ADMITS THE UNDISCLOSED INCOME AND SPECIFIED THE MANNER, IN WHICH SUCH INCOME WAS DERIVED, (II) SUBSTANTIATE THE MANNER IN WHICH THE UNDISCLOS ED INCOME WAS DERIVED, AND (III) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. 2.5. IT IS FURTHER NOTED THAT WITH THE INSERTION O F EXPLANATION UNDISCLOSED INCOME HAS BEEN DEFINED T O BE (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 ACCOUNTS OR OTHER DOCUMENTS OR TRANSACTION FOUND IN THE COUR SE OF ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 8 SEARCH U/S 132, WHICH HAS (A) HAS NOT BEEN RECORDED ON OR BEFORE THE DATE OF SEARCH IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PREVIOUS YEAR OR NOT DISCLOSED TO THE DEPARTMENT. T HE BROAD ANALYSIS OF THE SECTION SAYS THAT THE MANNER OF EAR NING SUCH UNDISCLOSED INCOME HAS TO BE EXPLAINED BY THE ASSES SEE AND FURTHER THE ASSESSEE HAS TO PAY THE TAX ALONG WITH INTEREST, IF ANY, IN RESPECT TO SUCH UNDISCLOSED INCOME. 2.6. IF THE AFORESAID PROVISION OF THE ACT IS KEPT IN JUXTAPOSITION WITH THE FACTS OF THE PRESENT APPEAL UNDISPUTEDLY TO BUY PEACE WITH THE DEPARTMENT AND TO AVOID LITIG ATION, THE ASSESSEE MADE DISCLOSURE OF ADDITIONAL INCOME OF RS .8.45 CRORES AND PAID DUE TAXES THEREUPON. SO FAR AS, MAN NER OF EARNING THE INCOME IS CONCERNED, WE FIND THAT STATE MENT OF SHRI RAJESH & PATEL @ RAJU PATEL WAS RECORDED (PAGE S 33 TO 43 OF THE PAPER BOOK). THROUGH QUESTION NUMBER 8 (PAGE -36 ONWARDS OF THE PAPER BOOK), THE ASSESSEE WAS ASKED WITH RESPECT TO LOOSE PAPERS, IT IS NOTICED THAT MR. PAT EL DULY EXPLAINED THE SAME, THEREFORE, IT IS ESTABLISHED TH AT THE ASSESSEE HAS CLEARLY EXPLAINED THE SOURCE OF THE MON EY, ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 9 THEREFORE, FROM THIS ANGLE, PENALTY CANNOT BE SUSTA INED. DURING HEARING BEFORE US, THE LD. COUNSEL FOR THE A SSESSEE, CLAIMED THAT THE DOCUMENTS, ALLEGED TO BE RECOVERED FROM THE PREMISES, ARE DUMB DOCUMENTS AND HAS NO EVIDENTIARY VALUE. IF THIS APPEAL IS ANALYZED WITH RESPECT TO DUMB DOC UMENT, STILL AT LEAST, PENALTY DOES NOT SURVIVE. 2.7. ANOTHER ARGUMENT TAKEN BEFORE US, BY THE AS SESSEE, IS THAT THE DISCLOSURE OF ADDITIONAL INCOME WAS MAD E BY THE ASSESSEE SIMPLY TO BUY PEACE WITH THE DEPARTMENT AN D ALSO TO AVOID LITIGATION. THE BENCH ASKED THE LD. COUNSEL F OR THE ASSESSEE WHETHER IDENTICAL PLEA WAS RAISED BEFORE T HE ASSESSING OFFICER OR THE COMMISSIONER OF INCOME TAX (APPEAL), THE LD. COUNSEL DULY EXPLAINED THAT SUCH ARGUMENT W AS TAKEN BEFORE THE AUTHORITIES, FOR WHICH OUR ATTENTION WAS INVITED TO THE WRITTEN SUBMISSIONS FILED BEFORE THE COMMISSION ER OF INCOME TAX (APPEAL). FROM THE WRITTEN SUBMISSIONS (PAGE 2), IT HAS BEEN CLAIMED AS UNDER:- DURING SEARCH CERTAIN LOOSE PAPERS WERE FOUND FROM THE POSSESSION OF ONE OF THE APPELLANT EMPLOYEE SHRI RA JU PATEL. THE SAID LOOSE PAPER NO. 3, 14, 35 & 39 ARE FILED A T UNDER ANNEXURE A/3. IN ORDER TO BUY PEACE & AVOID LITIGA TION & ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 10 PENALTIES THE APPELLANT HAS COME FORWARD TO DISCLOS E AS ADDITIONAL INCOME & PAID TAXES ON THE SAME. 2.8. IN THE AFORESAID WRITTEN SUBMISSIONS, NOT ON LY TO BUY PEACE AND TO AVOID LITIGATION, THE ASSESSEE HAS SPECIFICALLY PRAYED PENALTY IS ALSO, THEREFORE, THE ASSESSEE HAS SUBSTANTIATED ITS VERSION THAT ADDITIONAL DISCLOSUR E WAS MADE SUBJECT TO AFOREMENTIONED CONDITIONS, THEREFORE, TH E ASSESSEE IS HAVING A GOOD CASE FOR DELETING THE PENALTY. THE CASE OF THE ASSESSEE IS FORTIFIED BY THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF SHRI UDAY C. TAMNHANKAR VS DCIT (SUPRA). THE RELEVANT PORTION OF THE SAME IS REPROD UCED HEREUNDER FOR READY REFERENCE (PAGES 22 TO 25 OF TH E PAPER BOOK):- 23. WE SHALL NOW TAKE UP THE APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2008-09 AGAINST THE PENALTY LEVIED U/S 271AAA OF THE ACT. AS NOTICED EARLIER, THE ASSESSEE HAD OFFERED THE EXCESS CASH BALANCE OF RS.1.05 CRORES AS HIS INCOME FOR AY 2008 -09 OUT OF THE CASH OF RS.1.13 CRORES FOUND DURING THE COURSE OF S EARCH. HENCE THE ASSESSING OFFICER LEVIED PENALTY U/S 271AAA OF THE ACT AT 10% OF THE ADDITIONAL OFFER OF RS.1.05 CRORES MADE IN THE STAT EMENT TAKEN U/S 132(4) OF THE ACT. BEFORE THE LD CIT(A), THE ASSES SEE CLAIMED IMMUNITY FROM PENALTY BY CONTENDING THAT HE HAS COM PLIED WITH THE CONDITIONS PRESCRIBED IN SEC. 271AAA(2) OF THE ACT. HOWEVER, THE LD CIT(A) TOOK THE VIEW THAT THE ASSESSEE HAS NOT DISC LOSED THE MANNER IN ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 11 WHICH THE UNDISCLOSED INCOME WAS EARNED AND ACCORDI NGLY THE LD CIT(A) CONFIRMED THE PENALTY. 24. WE HEARD THE PARTIES AND PERUSED THE RECORD . THE ASSESSEE IS SEEKING IMMUNITY FROM PENALTY LEVIED U/S 271AAA(1) OF THE ACT ON THE REASONING THAT HE HAS COMPLIED WITH THE PROVISIONS OF SEC. 271AAA(2) OF THE ACT. AS PER THE PROVISIONS OF SEC. 271AAA(2 ), PENALTY U/S 271AAA(1) OF THE ACT IS NOT LEVIABLE IF THE ASSESSE E:- (A) IN THE COURSE OF SEARCH, IN A STATEMENT U NDER SUB-SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPEC IFIES THE MANNER IN WHICH SUCH INCOME WAS DERIVED; (B) SUBSTANTIATES THE MANNER IN WHICH THE UNDISC LOSED INCOME WAS DERIVED; AND (C) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF THE UNDISCLOSED INCOME. 25. THERE IS NO DISPUTE WITH REGARD TO THE FACT T HAT THE ASSESSEE HAS COMPLIED WITH CONDITIONS THAT THE ASSESSEE HAS DISC LOSED THE INCOME IN THE STATEMENT TAKEN U/S 132(4) OF THE ACT AND THE A SSESSEE HAS PAID THE TAX TOGETHER WITH INTEREST, IF ANY, IN RESPECT OF T HE UNDISCLOSED INCOME. THE LD CIT(A) HAS TAKEN THE VIEW THAT THE ASSESSEE HAS NOT DISCLOSED/SUBSTANTIATED THE MANNER IN WHICH UNDISCL OSED INCOME WAS DERIVED. THE LD A.R SUBMITTED THAT THE ASSESSEE H AS DISCLOSED THE UNDISCLOSED INCOME IN THE RETURN OF INCOME AS HIS P ROFESSIONAL INCOME AND HENCE THE DISCLOSURE SO MADE SATISFIED THE COND ITION OF MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED. IN T HIS REGARD, HE PLACED RELIANCE ON THE DECISION RENDERED BY THE CUT TACK BENCH OF TRIBUNAL IN THE CASE OF ASHOK KUMAR SHARMA VS. DCIT (2012)(149 TTJ (CTK)(UO) 33), WHEREIN IT WAS HELD AS UNDER:- UNDISPUTEDLY THE ASSESSEES HAVE SHOWN THE UNDISCLO SED INCOME UNDER THE HEAD INCOME FROM BUSINESS IN THE RETURN S FILED BY THEM ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 12 AND THAT WAS ACCEPTED BY THE DEPARTMENT BY PASSING THE ASSESSMENT ORDERS ACCORDINGLY. THEREFORE, THE CASES OF THE AS SESSEES FALL EXACTLY WITHIN THE PURVIEW OF SUB-S (2) OF S. 271AAA. THER EFORE THE PROVISIONS CONTAINED IN SUB.S (1) OF S. 271AAA ARE NOT APPLICA BLE 26. ON THE CONTRARY, THE LD D.R CONTENDED THAT T HE ASSESSEE DID NOT SPECIFY THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED. 27. WE HAVE HEARD RIVAL CONTENTIONS ON THIS IS SUE. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEE H AS DISCLOSED THE UNDISCLOSED INCOME AS HIS PROFESSIONAL INCOME AND T HE SAME HAS BEEN ACCEPTED BY THE ASSESSING OFFICER. IN FACT, THE AS SESSING OFFICER HAS PROCEEDED TO ESTIMATE THE PROFESSIONAL INCOME OF TH E PRECEDING YEARS ON THE BASIS OF THE ABOVE SAID DISCLOSURE. HENCE, WE ARE OF THE VIEW THAT THE DECISION RENDERED BY THE CUTTACK BENCH IN THE ABOVE SAID CASE SQUARELY APPLIES TO THE FACTS PREVAILING IN THE INS TANT CASE. WE ALSO NOTICE THAT THE NAGPUR BENCH OF TRIBUNAL HAS ALSO T AKEN IDENTICAL VIEW IN THE CASE OF CONCRETE DEVELOPERS V/S ACIT IN IT A NO.381/NAG/2012 DATED 20.3.2013. 28. CONSISTENT WITH THE VIEW TAKEN BY THE CO-OR DINATE BENCHES IN THE ABOVE CITED CASES, WE ALSO HOLD THAT THE ASSESSEE H AS COMPLIED WITH ALL THE THREE CONDITIONS SPECIFIED IN SEC. 271AAA(2) OF THE ACT AND ACCORDINGLY, THE PENALTY LEVIED BY THE AO U/S 271AA A(1) OF THE ACT IS LIABLE TO BE DELETED. ACCORDINGLY, WE SET ASIDE TH E ORDER OF LD CIT(A) AND DIRECT THE AO TO DELETE THE PENALTY LEVIED U/S 271AAA OF THE ACT FOR AY 2008-09. 29. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED AND ALL THE APPEALS FILED BY THE REVENUE ARE DISMIS SED. ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 13 2.9. THE RATIO LAID DOWN IN THE AFORESAID ORDER DA TED 11/09/2015 AND THE FACTS ARE IDENTICAL AND IN THE P RESENT APPEAL ALSO, WE FIND THAT THE ASSESSEE HAS COMPLIED WITH THE CONDITIONS PRESCRIBED IN SECTION 271AAA(2) OF THE A CT. THE PENALTY WAS IMPOSED UPON THE ASSESSEE ON THE PLEA T HAT THE ASSESSEE HAS NOT DISCLOSED THE MANNER IN WHICH UNDI SCLOSED INCOME WAS EARNED. FROM THE STATEMENT RECORDED FROM MR. PATEL U/S 132(4) OF THE ACT, IT WAS CATEGORICALLY S TATED THAT THE INCOME WAS EARNED FROM CONSTRUCTION ACTIVITIES, TAX WAS PAID ALONG WITH INTEREST, THEREFORE, ASSESSEE IS HAVING A GOOD CASE. EVEN OTHERWISE, NO PRESCRIBED FORMULA HAS BEEN MENT IONED IN THE ACT ON THE BASIS OF WHICH, IT CAN BE SAID THAT MANNER HAS NOT BEEN EXPLAINED. THE ACTIVITY OF THE ASSESSEE IS CONSTRUCTION ACTIVITY AND THE ASSESSEE EXPLAINED THAT THE UNDISC LOSED INCOME WAS EARNED OUT OF CONSTRUCTION ACTIVITY, THU S, WE ARE SATISFIED WITH THE DISCLOSURE/MANNER OF THE ASSESSE E. IF THE ASSESSING OFFICER/AUTHORIZE OFFICER WAS NOT SATISF IED WITH THE MANNER, NOTHING PREVENTED HIM TO EXPLAIN THE ASSESS EE AND TO RECORD THE STATEMENT ACCORDINGLY. RATHER THE DISCLO SURE WAS ACCEPTED BY THE DEPARTMENT AND DUE TAXES ALONG WITH INTEREST WERE PAID BY THE ASSESSEE. THE RATIO LAID DOWN IN A SHOK ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 14 KUMAR SHARMA VS DCIT (2012) 149 TTJ(CTK)(UO)33 SUPP ORTS THE CASE OF THE ASSESSEE, WHEREIN, IT WAS HELD AS U NDER:- UNDISPUTEDLY THE ASSESSEES HAVE SHOWN THE UNDISCLO SED INCOME UNDER THE HEAD INCOME FROM BUSINESS IN THE RETURN S FILED BY THEM AND THAT WAS ACCEPTED BY THE DEPARTMENT BY PASSING THE ASSESSMENT ORDERS ACCORDINGLY. THEREFORE, THE CASES OF THE AS SESSEES FALL EXACTLY WITHIN THE PURVIEW OF SUB-S (2) OF S. 271AAA. THER EFORE THE PROVISIONS CONTAINED IN SUB.S (1) OF S. 271AAA ARE NOT APPLICA BLE WE NOTE THAT THE NAGPUR BENCH OF THE TRIBUNAL HAS T AKEN IDENTICAL VIEW IN CONCRETE DEVELOPERS VS ACIT (ITA NO.381/NAG/2012) DATED 20/03/2013, THUS, THE ASSESS EE IS FORTIFIED BY THESE AFORESAID DECISIONS. 2.10. THE ASSESSEE IS FURTHER FORTIFIED BY THE DEC ISION FROM MUMBAI BENCH OF THE TRIBUNAL, WHEREIN, ONE OF US (J UDICIAL MEMBER) IS SIGNATORY TO THE ORDER IN THE CASE OF DC IT VS HAFEEZ S. CONTRACTOR (SUPRA) ORDER DATED 02/09/2015. THE R ELEVANT PORTION FROM THE ORDER IS REPRODUCED HEREUNDER FOR READY REFERENCE:- 2. THE REVENUE IS AGGRIEVED BY THE DECISION OF THE LD. CIT(A) IN DELETING THE PENALTY OF RS..5,05,256/- LEVIED BY TH E AO UNDER SECTION 271AAA OF THE ACT. ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 15 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE WAS SUBJECTED TO SEARCH AND SEIZURE ACTION UNDER SE CTION 132(1) OF THE ACT ON 22.1.2009. IN THE SWORN STATEM ENT TAKEN FROM THE ASSESSEE UNDER SECTION 132(4) OF THE ACT, THE ASSESSEE HAD DISCLOSED A SUM OF RS. 50 LAKHS AS HIS UNDISCLO SED INCOME FOR THE YEAR UNDER CONSIDERATION. THE DECLARATION W AS INTENDED TO COVER THE DISCREPANCY, IF ANY, THAT MAY BE NOTIC ED FROM THE SEIZED MATERIALS. THE ASSESSEE FILED RETURN OF INCO ME FOR THE YEAR UNDER CONSIDERATION U/S 153A OF THE ACT, WHERE IN HE DULY DISCLOSED THE ABOVE SAID SUM OF RS.50 LAKHS. THE AO ALSO COMPLETED THE ASSESSMENT BY MAKING A SMALL ADDITION OF RS.52,560/-. LATER THE AO INITIATED THE PENALTY PRO CEEDINGS U/S 271AAA OF THE ACT. THE ASSESSEE SOUGHT IMMUNITY FRO M THE PENALTY UNDER SUB-SECTION(2) OF SECTION 271AAA BY S TATING THAT HE HAS COMPLIED WITH ALL THE CONDITIONS PRESCRIBED IN THAT SECTION. HOWEVER, THE AO TOOK THE VIEW THAT THE ASS ESSEE HAS NOT EXPLAINED ABOUT THE MANNER IN WHICH THE UNDISCL OSED INCOME WAS DERIVED BY HIM AND ACCORDINGLY HELD THAT THE ASSESSEE HAS NOT COMPLIED WITH ALL THE CONDITIONS S TATED IN SECTION 271AAA(2) OF THE ACT. ACCORDINGLY THE AO LE VIED A PENALTY OF RS.5,05,256/- U/S 271AAA OF THE ACT. THE LD. CIT(A) DELETED THE PENALTY BY FOLLOWING THE DECISION OF NA GPUR BENCH OF THE TRIBUNAL IN THE CASE OF CONCRETE DEVELOPERS V/S ACIT IN ITA NO.381/NAG/2012 DATED 20.3.2013. AGGRIEVED, THE REVENUE HAS FILED THIS APPEAL BEFORE US. 4. THE PROVISIONS OF SUB-SECTIONS (1) AND (2) OF SE CTION 271AAA OF THE ACT READS AS UNDER : 271AAA. PENALTY WHERE SEARCH HAS BEEN INITIATED.( 1) THE ASSESSING OFFICER MAY, NOTWITHSTANDING ANYTHING CON TAINED IN ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 16 ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR A FTER 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 COMP UTED AT THE RATE OF TEN PER CENT OF THE UNDISCLOSED INCOME OF T HE SPECIFIED PREVIOUS YEAR. (2) NOTHING CONTAINED IN SUB-SECTION (1) SHALL APPLY IF THE ASSESSEE, (I ) IN THE COURSE OF THE SEARCH, IN A STATEMENT UN DER SUB-SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME A ND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; (II ) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCL OSED INCOME WAS DERIVED; AND (III ) PAYS THE TAX, TOGETHER WITH INTEREST, IF ANY , IN RESPECT OF THE UNDISCLOSED INCOME. ACCORDING TO THE ASSESSEE, HE HAS COMPLIED WITH ALL THE THREE CONDITIONS SPECIFIED IN SUB-SECTION 2 OF SECTION 27 1AAA OF THE ACT. WHEREAS, THE AO HAS STATED THAT THE ASSESSEE H AS NOT SUBSTANTIATED THE MANNER IN WHICH THE UNDISCLOSED I NCOME WAS DERIVED BY THE ASSESSEE. WE NOTICE THAT AN IDENTICA L ISSUE WAS CONSIDERED BY THE NAGPUR BENCH OF THE TRIBUNAL IN T HE CASE OF CONCRETE DEVELOPERS (SUPRA), WHEREIN THE TRIBUNAL N OTICED THAT THE ASSESSEE HAD DECLARED UNDISCLOSED INCOME UNDER THE HEAD BUSINESS AND THE AO HAD ALSO ACCEPTED THE SAME. U NDER THESE SET OF FACTS, THE TRIBUNAL HELD THAT IT CANNOT BE S AID THAT THE ASSESSEE HAD NOT OR COULD NOT SUBSTANTIATE THE MANN ER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED BY IT. ACCORDING LY, THE TRIBUNAL DELETED THE PENALTY LEVIED U/S 271AAA BY H OLDING THAT THE ASSESSEES CASE FALLS UNDER SECTION 271AAA OF T HE ACT. ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 17 5. IN THE INSTANT CASE ALSO, THE LD CIT(A) HAS NOTI CED THAT THE ASSESSEE HAS OFFERED THE ADDITIONAL INCOME UNDER TH E HEAD BUSINESS AND THE SAME HAS ALSO BEEN ACCEPTED BY T HE ASSESSING OFFICER. ACCORDINGLY, THE LD CIT(A) HAS D ELETED THE IMPUGNED PENALTY BY FOLLOWING THE DECISION RENDERED IN THE CASE OF CONCRETE DEVELOPERS (SUPRA). SINCE THE FACT S PREVAILING IN THE INSTANT CASE AND THE FACTS RELATING TO CONCR ETE DEVELOPERS (SUPRA) ARE IDENTICAL IN NATURE AND SINCE THE LD CI T(A) HAS FOLLOWED THE DECISION RENDERED BY THE CO-ORDINATE B ENCH OF TRIBUNAL IN THE ABOVE CITED CASE, WE DO NOT FIND AN Y REASON TO INTERFERE WITH HIS ORDER. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 2.11. IDENTICAL VIEW WAS TAKEN BY THE MUMBAI BENC H OF THE TRIBUNAL IN THE CASE OF ACIT VS M/S KANAKIA SPA CED PVT. LTD. (ITA NO.6763/MUM/2011) ORDER DATED 10/07/2013. THE BENCH WHILE DISMISSING THE APPEAL OF THE REVENUE DU LY CONSIDERED THE DECISION FROM HONBLE GUJARAT HIGH C OURT IN CIT VS MAHENDRA C. SHAH (299 ITR 305)(GUJ.). THE RE LEVANT PORTION FROM THE AFORESAID ORDER OF THE TRIBUNAL IS REPRODUCED HEREUNDER FOR READY REFERENCE:- 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE D O NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF CIT(A). THE O RDER IS IN TUNE WITH THE PRINCIPLES LAID DOWN BY VARIOUS CO-ORDINAT E BENCHES AND HIGH COURTS PARTICULARLY WITH REFERENCE TO DISCLOSU RE MADE UNDER ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 18 SECTION 132(4). IN THE CASE OF CIT VS. MAHENDRA C. SHAH (299 ITR 305) THE HONBLE GUJARAT HIGH COURT CONSIDERED SIMI LAR STATEMENT UNDER SECTION 132(4) TO GRANT IMMUNITY UN DER SECTION 271(1)(C). THE HON'BLE HIGH COURT HELD AS UNDER:- WHEN THE STATEMENT IS BEING RECORDED BY THE AUTHORIZED OFFICER IT IS INCUMBENT UPON THE AUTHORI ZED OFFICER TO EXPLAIN THE PROVISIONS OF EXPLANATION 5 IN ENTIRETY TO THE ASSESSEE CONCERNED AND THE AUTHORIZ ED OFFICER CANNOT STOP SHORT AT A PARTICULAR STAGE SO AS TO PERMIT THE REVENUE TO TAKE ADVANTAGE OF SUCH A LAPS E IN THE STATEMENT. THE REASON IS NOT FAR TO SEEK. IN TH E FIRST INSTANCE, THE STATEMENT IS BEING RECORDED IN THE QUE STION 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. SECONDLY, CONSIDERING THE SOCIAL ENVIRONMENT IT IS NOT POSSIBLE TO EXPECT FROM AN ASSESSEE, WHETHER LITERA TE OR ILLITERATE, TO BE SPECIFIC AND TO THE POINT REGARDI NG THE CONDITIONS STIPULATED IN THE SECOND EXCEPTION WHILE MAKING STATEMENT UNDER SECTION 132(4). EVEN IF THE STATEMENT DOES NOT SPECIFY THE MANNER IN WHICH THE INCOME IS DERIVED, IF THE INCOME IS DECLARED AND TA X THEREON PAID, THERE WOULD BE SUBSTANTIAL COMPLIANCE NOT WARRANTING ANY FURTHER DENIAL OF THE BENEFIT. 4.1 IN THIS CASE, THE ASSESSEE WAS ASKED TO EXPLAIN THE ENTRIES IN THE WORK-IN-PROGRESS SHEET AND ASSESSEE IN THE CO URSE OF STATEMENT OFFERED THE INCOME WITH A PLEA NOT TO INI TIATE PENALTY PROCEEDINGS. THE ASSESSEE WAS NOT ASKED ABOUT THE M ANNER IN WHICH SUCH INCOME WAS EARNED AND ALSO TO SUBSTANTIA TE THE MANNER IN WHICH UNDISCLOSED INCOME WAS DERIVED. THE PROVISION OF CLAUSE-2 OF EXPLANATION-V APPENDED TO SECTION 27 1(1)(C) ARE ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 19 SIMILAR TO SECTION 271AAA(2). THE SCOPE AND MEANING HAS BEEN LUCIDLY EXPLAINED BY THE HON'BLE ALLAHABAD HIGH COU RT IN THE CASE OF CIT VS. RADHA KISHAN GOEL (2005) 278 ITR 454 (AL L.), WHICH WAS FOLLOWED BY THE HON'BLE GUJARAT HIGH COURT IN THE A BOVE REFERRED CASE. IN VIEW OF THE ABOVE PRINCIPLES LAID DOWN, WE ARE OF THE OPINION THAT IMMUNITY PROVIDED UNDER S/S.(2) OF SEC TION 271AAA IS APPLICABLE AND ACCORDINGLY, THE ORDER OF CIT(A) DOES NOT REQUIRE ANY MODIFICATION. REVENUES GROUNDS ARE REJ ECTED. 5. IN THE RESULT, REVENUE APPEAL IS DISMISSED. 2.12. THE SCOPE AND MEANING OF SECTION 271AAA(2) H AS BEEN LUCIDLY EXPLAINED BY THE HONBLE HIGH COURT IN THE CASE OF RADHA KRISHNA GOEL (2005) 278 ITR 454 (ALL.). IT IS NOTEWORTHY THAT THE HONBLE HIGH COURT HAS CATEGORICALLY HELD THAT THE PROVISIONS OF CLAUSE-2 OF EXPLANATION-V APPENDED TO SECTION 271(1)(C) ARE SIMILAR TO 271AAA(2) OF THE ACT. THUS , THE ASSESSEE IS HAVING A GOOD CASE IN ITS FAVOUR. 2.13. IN ANOTHER CASE, DECIDED BY THE TRIBUNAL OF DELHI BENCH IN SUDHA GUPTA VS DCIT (ITA NO.5445/DEL/2012) ORDER DATED 22/08/2014, WHEREIN OTHER CASES FROM THE TRIB UNAL SUCH AS GULABRAI V. GANDHI VS ACIT (84 ITD 370), RA JRANI GUPTA (ITA NO.3371/DEL./2011) ORDER DATED 30/03/201 2, ITA NO.3372/DEL/2011) DATED 12/10/2012, DECISION IN MAH ENDRA ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 20 C. SHAH (SUPRA) FROM HONBLE GUJARAT HIGH COURT, CA SE OF MOTHER PRIDE EDUCATION PERSONNA PVT. LTD. VS DCIT ( ITA NO.3372/D/2011) ORDER DATED 12/10/2012, ETC WERE CONSIDERED AND PENALTY WAS DELETED. THEREFORE, SINC E, THE ISSUE/FACTS IS IDENTICAL, THE ASSESSEE IS HAVING GO OD CASE IN ITS FAVOUR FOR DELETING THE PENALTY. 2.14. IN ANOTHER CASE OF SMT. RAJ RANI GUPTA VS DC IT (ITA NO.3371/DEL/2011) ORDER DATED 30/03/2012, THE APPEA L OF THE ASSESSEE WAS ALLOWED. IN THE CASE OF DCIT VS SH RI RAJIV CHOPRA (ITA NO.990/CHD/2014) ORDER DATED 27/11/2015 , WHEREIN, THE CASE OF MANISH KUMAR GOEL 45 TAXMAN.CO M 563 WAS FOLLOWED AND THE APPEAL OF THE DEPARTMENT WAS D ISMISSED. LIKEWISE, THE MUMBAI BENCH OF THE TRIBUNAL IN JANAK MADHUSUDAN VAKAHARIA VS ACIT (ITA NO.2900/MUM/2012) ORDER DATED 26/07/2013, FOLLOWING THE CASE FROM AHM EDABAD BENCH OF THE TRIBUNAL IN DCIT VS RANJENDRA PRASAD D OKANIA (ITA NO.525/AHD/2012) THE APPEAL OF THE ASSESSEE WA S ALLOWED AND THE ASSESSING OFFICER WAS DIRECTED TO D ELETE THE PENALTY U/S 271AAA OF THE ACT. ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 21 2.15. LIKEWISE, IN DCIT VS M/S NECTOR LIFE SCIENCE LTD. (ITA NO.107/CHD/2015) ORDER DATED 27/11/2015 FOLLOW ING THE CASE OF SUNIL KUMAR BANSAL VS DCIT (ITA NO.874 & 875/CHD/2013) AND OTHER CASES INCLUDING MAHENDRA C . SHAH FROM HONBLE GUJARAT HIGH COURT WAS DISCUSSED AND T HE APPEAL OF THE REVENUE WAS DISMISSED. IN ANOTHER CA SE OF DCIT VS BANARSIDAS R. JINDAL AND ORS. (ITA NO.1436, 1438 , 1440/PN/2013) ORDER DATED 26/06/2015 FOLLOWING SATI SH CHANDRA G. MITTAL (ITA NO.970/PN/2011) ORDER DATED 11/05/2015, THE APPEALS OF THE REVENUE WERE DISMISS ED. 2.16. IN ANOTHER CASE BY THE KOLKATA BENCH OF THE TRIBUNAL IN JCIT VS M/S CASTAL EXTRUSION PVT. LTD. (ITA NO.1269/KOL/2012) AND JCIT VS M/S BECO INDUSTRIES P VT. LTD. ORDER DATED 24/09/2015, WHEREIN, THE DECISION FROM HONBLE PUNJAB & HARYANA HIGH COURT IN CIT VS CAREERS EDUCA TION & INFOTECH PVT. LTD. (2011) 336 ITR 257 (P & H), THE DECISION FROM HONBLE APEX COURT IN CIT VS SURESH CHANDRA MI TTAL (2001) 251 ITR 9 (SC), MAK DATA PVT. LTD. VS CIT (3 58 ITR 593)(SC) WERE DISCUSSED AND ULTIMATELY THE APPEAL O F THE REVENUE WAS DISMISSED. THE HONBLE APEX COURT IN S URESH ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 22 CHANDRA MITTAL (SUPRA), WHEREIN THEIR LORDSHIPS HAV E OBSERVED THAT : WHERE THE ASSESSEE HAS FILED A REVISED RETURN SHOW ING HIGHER INCOME AND THE ASSESSEE HAS SURRENDERED THE INCOME AFTER PERSISTENT QUERIES BY THE ASSESSING OFFICER AND WHE RE THE REVISED RETURN HAS BEEN REGULARIZED BY THE REVENUE, THE EXP LANATION OF THE ASSESSEE THAT HE HAS DECLARED THE ADDITIONAL INCOME TO BUY PEACE OF MIND AND TO COME OUT OF VEXED LITIGATION COULD B E TREATED AS BONA FIDE, ACCORDINGLY THE LEVY OF PENALTY U/S 271(1)(C) WAS HELD TO BE NOT JUSTIFIED. 2.17. THE KOLKATA BENCH OF THE TRIBUNAL IN ANOTHER CASE OF SPS STEEL & POWER LTD. VS ACIT (ITA NO.1391 & 1414/KOL/2011) DISMISSED THE APPEAL OF THE REVENUE VIDE ORDER DATED 30/06/2015. THE RELEVANT PORTION FROM T HE AFORESAID ORDER IS REPRODUCED HEREUNDER:- 6. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. COMING TO REVENUES APPE AL, WE FIND THAT THE AO HAS ACCEPTED THE DISCLOSURE MADE VIDE PETITI ON DATED 11.04.2008 AMOUNTING TO RS.8.64 CRORES. THE AO ALSO ADMITTED THAT ASSESSEE FILED A DETAILED WORKING OF DISCLOSURE WIT H CASH FLOW STATEMENT WHICH WAS VERIFIED. THE AO DISCUSSED THE DISCLOSURE IN HIS ASSESSMENT ORDER AND THE SAME IS REPRODUCED IN ABOV E PARA-2. THE AO HAS NOT DISPUTED THAT OUT OF THE TOTAL UNDISCLOS ED INCOME OF ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 23 RS.7,97,65,623/-, A SUM OF RS.6.84 CRORES WAS ADMIT TED AS UNDISCLOSED INCOME IN THE STATEMENT U/S 132(4) OF THE ACT AND D ULY INCLUDED THE SAME AS UNDISCLOSED INCOME IN THE RETURN OF INCOME AND ALSO PAID TAXES. THE AO LEVIED THE PENALTY ONLY ON THE REASON THAT THE ASSESSEE FAILED TO SUBSTANTIATE THE MANNER IN WHICH THE UNDI SCLOSED INCOME WAS DERIVED. FROM THE DETAILED WORKING AND CALCULATION OF THE UNDISCLOSED INCOME AS DONE BY THE AO IN HIS ASSESSMENT ORDER AS IS REPRODUCED IN ABOVE PARA-2, AND ALSO INCLUDED IN THE SAME IN THE RETURN OF INCOME AND PAID TAXES. THE AO HAS NOT DISPUTED THE ABOVE D ISCLOSURE AS EACH AND EVERY ENTRY HAS BEEN EXPLAINED BY THE ASSESSEE WITH NARRATIONS STATING THE MANNER IN WHICH THIS INCOME WAS EARNED BY ASSESSEE. HENCE, IN THIS CASE IT CANNOT BE SAID THAT THE ASSE SSEE HAS NOT SPECIFIED THE MANNER IN WHICH THE UNDISCLOSED INCOME HAS BEEN EARNED BECAUSE THE PAPERS FOUND DURING THE COURSE OF SEARCH RELATE S TO THE BUSINESS OF THE ASSESSEE OR DEBTORS RELATING TO BUSINESS OF THE ASSESSEE. IT IS CLEAR FROM THE ABOVE THAT THE UNDISCLOSED INCOME WAS EARN ED MAINLY BY VIRTUE OF TRADING ACTIVITIES AND INCOME FROM OTHER SOURCES. THIS HAS NOT BEEN DISPUTED BY THE AO DURING THE COURSE OF SC RUTINY ASSESSMENT AND ACCEPTED THE SAME AS IT IS. IN THIS REGARD, WE HAVE GONE TO THE PROVISION OF SEC. 292C OF THE ACT WHICH READS AS UN DER:- 292[(1)] WHERE ANY BOOKS OF ACCOUNTS, OTHER DOCUME NTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THING ARE O R IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE O F A SEARCH UNDER SECTION ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 24 132 [OR SURVEY UNDER SECTION 133A], IT MAY, IN ANY PROCEEDING UNDER THIS ACT, BE PRESUMED- (I) THAT SUCH BOOKS OF ACCOUNTS , OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONG S TO SUCH PERSON; (II) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNTS AN D OTHER DOCUMENTS ARE TRUE; AND (III) THAT THE SIGNATURE AND EVERY OTHER PAT OF SUC H BOOKS OF ACCOUNTS AND OTHER DOCUMENTS WHICH PURPORT .. SECTION 132]. IN VIEW OF THE ABOVE, SECTION WHICH DEEMS THAT ALL RECORDINGS IN THE SEIZED DOCUMENTS ARE CORRECT UNLESS PROVED TO THE C ONTRARY. IN VIEW OF THE ABOVE PROVISIONS AND THE FACTS OF THIS CASE IMP LIES THAT THE RECORDINGS IN THE SEIZED DOCUMENTS ARE TRADING ACTI VITY AND INCOME FROM OTHER SOURCES, WHICH WERE NEVER DISPUTED BY TH E AO. THE CUTTAK BENCH OF THIS TRIBUNAL IN THE CASE OF ASHOK KUMAR S HARMA V. DCIT 149 TTJ 33, IN SIMILAR CIRCUMSTANCES, HAS HELD THAT :- ASSESSEES HAVE DISCLOSED CONCEALED INCOME WHILE GI VING STATEMENTS U/S. 132 DURING COURSE OF SEARCH AND PAID TAX THEREON AN D SHOWED THE SAID UNDISCLOSED INCOME IN RETURN FILED UNDER THE HEAD INCOME FROM BUSINESS AND DEPARTMENT HAS ACCEPTED THESE RETURNS AND ACCOR DINGLY PASSED ASSESSMENT ORDERS. IT IS NOT A CASE OF REVENUE THAT ASSESSEE HAS NOT SATISFIED THE MANNER IN WHICH INCOME IS DERIVED AND ASSESSEE HAS NOT PAID TAX WITH INTEREST ON UNDISCLOSED INCOME. UNDISPUTEDLY, ASSES SEES HAVE SHOWN UNDISCLOSED INCOME UNDER HEAD INCOME FROM BUSINESS IN RETURNS FILED BY THEM, AND THE SAME WAS ACCEPTED BY DEPARTMENT BY PA SSING ASSESSMENT ORDERS ACCORDINGLY. THEREFORE, CASES OF ASSESSEE FA LL EXACTLY WITHIN PURVIEW OF SECTION 271AAA(2). THEREFORE PROVISIONS CONTAINE D IN SUBSECTION 1 OF SECTION 271AAA ARE NOT APPLICABLE. IN VIEW OF THE ABOVE FACTUAL AND LEGAL POSITION, I N THE INSTANT CASE, THE INCOME DISCLOSED BY THE ASSESSEE AND ALSO THE RETUR N HAS BEEN ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 25 ACCEPTED BY THE ASSESSEE, NO PENALTY U/S 271AAA OF THE ACT CAN BE LEVIED AND CIT(A) HAS RIGHTLY DELETED THE SAME. WE CONFIRM THE ORDER OF CIT(A) DELETING THE PENALTY. 7. COMING TO ASSESSEES APPEAL, AS REGARD TO THE PE NALTY IMPOSED BY THE AO U/S 271AAA OF THE ACT ON UNDISCLOSED INCOME OF RS.1,13,65,623/-, THE ENTIRE PREMISES OF THE AO WAS THAT NONE OF THE CONDITIONS SPECIFIED U/S. 271AAA(2) OF THE ACT IS N OT SATISFIED. ACCORDING TO AO, THE UNDISCLOSED INCOME IS NEITHER ADMITTED OR DISCLOSED U/S. 132(4) OF THE ACT NOR SUBSEQUENTLY I NCLUDED IN THE RETURN OF INCOME FILED BY THE ASSESSEE. ACCORDING T O AO, THIS UNDISCLOSED INCOME WAS MERELY DETECTION BY THE REVE NUE. THE ASSESSEE BEFORE US EXPLAINED IN RESPECT TO THE PAYM ENT OF RS.15,77,307/- WHICH IS RECORDED IN PAGE NO. 23 OF SEIZED DOCUMENT UKS1. ACCORDING TO AO, THE ASSESSEE HAS RECORDED A SUM OF RS.1,54,620/- IN ITS DISCLOSURE PETITION AND THE BA LANCE RS.14,22,687/- WAS NOT DISCLOSED. IT WAS EXPLAINED THAT AS PER THE DISCLOSURE PETITION THE ASSESSEE HAD SHOWN AN INCOME OF RS.1,54,620/- W ITH REFERENCE TO PAGE NO. 23 OF THE SEIZED DOCUMENT UKS1. IN ARRIVIN G AT SUCH PROFITS, PAYMENT OF RS.55 LAKHS HAS BEEN CONSIDERED. THUS, T HE ALLEGATION OF THE AO THAT A SUM OF RS.1,54,620/- WAS ONLY DISCLOS ED IS COMPLETELY CONTRARY TO THE FACTS OF THE CASE. THE ASSESSEE ALT ERNATIVELY ARGUED THAT THE AFORESAID PAYMENTS OF RS.14,22,687/- WERE NOT CONSIDERED IN THE DISCLOSURE PETITION, THEN IN THAT CASE SAID PAY MENT SHOULD REDUCE ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 26 THE INCOME VOLUNTARILY DISCLOSED BY THE ASSESSEE DU RING THE COURSE OF SEARCH I.E. RS.6.84 CRORES. THE SAID INCOME WAS REP RESENTED BY CASH DISCLOSED IN THE BALANCE SHEET OF THE ASSESSEE AND AS ACCEPTED BY THE AO. LD. COUNSEL FOR THE ASSESSEE BEFORE US DREW US THE PROVISION OF SEC. 69C OF THE ACT AND ARGUED THAT FROM A PLAIN RE ADING OF THE SEC. 69C OF THE ACT, THE ADDITION CAN BE MADE ONLY IF TH E ASSESSEE CANNOT EXPLAIN THE SOURCE OF THE EXPENDITURE. IN THE INSTA NT CASE, THE SOURCE OF THE EXPENDITURE OF RS.14,22,687/- CLEARLY STANDS EX PLAINED BY THE DISCLOSED INCOME OF RS.6.84 CRORES AVAILABLE TO THE ASSESSEE IN CASH. THUS, NO ADDITION U/S. 69C OF THE ACT CAN BE MADE. FURTHER, HE STATED THAT PAGE NO. 23 OF THE UKS1 IS A DUMB DOCUMENT. TH E DOCUMENT MERELY HAS SOME FIGURES WRITTEN ON IT. THE DOCUMENT NOWHERE MENTIONS THE NATURE OF THE TRANSACTIONS, THE PARTIE S TO THE TRANSACTION, THE PERIOD OF TRANSACTION ETC. NOTHING CAN BE GATHE RED FROM THE SAID DOCUMENT. THUS NO ADDITION CAN BE MADE ON THE SAID DOCUMENT. HE EXPLAINED THE AFORESAID SEIZED DOCUMENT THAT IT IS APPARENT THAT CASH EXPENSES OF RS.13.50 LAKH WAS INCURRED AND PAID TO LIBERTY MARINE. THE SAME WAS ADDED BY THE AO TO THE INCOME OF THE A SSESSEE DISREGARDING THE FACT THAT SAID SUM WAS ALREADY CON SIDERED IN ITS DISCLOSURE PETITION, WHEREIN MISCELLANEOUS CASH EXP ENSE OF RS.25,41,155/- WAS DISCLOSED TO HAVE BEEN PAID TO L IBERTY MARINE. BUT THE ASSESSEE ACCEPTED THE ADDITION JUST TO AVOID LI NGERING LITIGATION BUT THIS IS NOT SUBJECT-MATTER OF PENALTY U/S 271AAA OF THE ACT. ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 27 8. SIMILARLY, W.R.T THE ADDITION OF RS.44,17,936/- BEING CASH EXPENSES AS PER THE AFORESAID SEIZED DOCUMENT, LD. COUNSEL F OR THE ASSESSEE EXPLAINED THAT THE SAID AMOUNT WAS CONSIDERED IN TH E DISCLOSURE PETITION OF THE ASSESSEE, WHEREIN MISCELLANEOUS EXP ENDITURE OF RS.101,36,805/- IN CONNECTION WITH MISCELLANEOUS RE CEIPTS OF RS.61 LAKH WAS DISCLOSED BY THE ASSESSEE. HE ARGUED THAT, IF FOR THE SAKE OF ARGUMENT, IT IS ASSUMED THAT THE AFORESAID EXPENSES OF RS.57,7,936/- WERE NOT DISCLOSED IN THE RETURN, THEN, IN THAT CAS E SAID EXPENSE SHOULD REDUCE THE INCOME VOLUNTARILY DISCLOSED BY THE ASSE SSEE IN CURSE OF SEARCH I.E. RS.6.84 CRORES. AS ALREADY EXPLAINED IN PARA 4.3 ABOVE, THE ASSESSEE HAD ENOUGH CASH AVAILABLE TO MEET THE SAID EXPENSE. ACCORDINGLY, NO ADDITION U/S. 69C OF THE ACT CAN BE MADE. 9. IN RESPECT TO ADDITION OF RS. 15 LAKH THE ASSESS EE EXPLAINED THAT DURING THE RELEVANT FY IT HAD PAID TRANSPORTATION C HARGES TO SAMPOORNA LOGISTICS PVT. LTD. VIDE CHEQUES. THE AO ALLEGED THAT OUT OF THE TOTAL TRANSPORTATION CHARGES PAID BY THE ASS ESSEE A SUM OF RS.15 LAKH WAS RECEIVED BACK IN CASH ON ACCOUNT OF DISCOU NTS OFFERED BY THE TRANSPORTER AND ACCORDINGLY EXPENSES TO THE TUNE OF RS.15 LAKH RECORDED IN THE BOOKS ARE BOGUS. HE CONTENDED THAT SHRI BIPIN VOHRA, CHAIRMAN OF THE ASSESSEE COMPANY IN HIS STATEMENT O BTAINED IN COURSE OF SEARCH ACCEPTED THE SAID ALLEGATION. RELIANCE WA S ALSO PLACED ON PAGE NO. 7 OF SPSG/2 AND PAGE NO. 28 OF SPSG/3. LD COUNSEL EXPLAINED FIRSTLY TO THE SEIZED DOCUMENTS RELIED UP ON BY THE AO AND ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 28 PAGE NO. 7 OF SPSG/2 SHOWS THE DETAILS OF CHEQUES I SSUED TO VARIOUS PARTIES. FURTHER, PAGE NO. 28 OF SPSG/3 SHOWS WITHD RAWAL OF RS.6.50 LAKH FROM BANK ACCOUNT OF THE ASSESSEE. THE SAID DO CUMENT IS THE EVIDENCE OF PAYMENT MADE TO SAMPOORNA LOGISTICS IN CHEQUE AS TRANSPORTATION CHARGES. THEY NOWHERE SUGGEST CASH R ECEIPT BY THE ASSESSEE. HENCE, NO ADDITION CAN BE MADE BASED ON T HE SAID DOCUMENTS. LD. COUNSEL EXPLAINED THE STATEMENT OF S HRI BIPNI VOHRA, CHAIRMAN OF THE ASSESSEE-COMPANY, OBTAINED IN COURS E OF SEARCH, AND CLARIFIED THAT HIS STATEMENT WAS RECORDED BY THE SE ARCH PARTY UNDER DURESS AND COERCION. THUS, THE STATEMENT MADE IN CO URSE OF SEARCH DOES NOT HAVE MUCH EVIDENTIARY VALUE UNLESS IT IS C ORROBORATED WITH OTHER DOCUMENTARY EVIDENCES. FOR THIS LD. COUNSEL F OR THE ASSESSEE DREW OUR ATTENTION TO DEPARTMENTAL ISSUED BY CBDT V IDE BOARDS LETTER NO. F NO.286/2/2003/IT(INV) DATED 11.03.2003 AND THE EXTRACT OF WHICH IS AS UNDER:- INSTANCES HAVE COME TO THE NOTICE OF THE BOARD WHE RE THE ASSESSEE HAVE CLAIMED THAT THEY HAVE BEEN FORCED TO CONFESS THE UNDISCLOSED INCOME DURING COURSE OF SEARCH AND SEIZURE AND SURV EY. SUCH CONFESSION, IF NOT BASED ON CREDIBLE EVIDENCE, ARE ALTERED/RETRACTED BY THE CONCERNED ASSESSEE WHILE FILING RETURNS OF I NCOME. IN SUCH CIRCUMSTANCES, CONFESSIONS IN THE COURSE OF SEARCH AND SEIZURE AND SURVEY OPERATIONS DO NOT SERVE ANY USEFUL PURPOSE. IT IS THEREFORE ADVISED THAT THERE SHOULD BE FOCUS AND CONCENTRATIO N ON COLLECTION OF EVIDENCE OF INCOME WHICH LEADS TO INFORMATION ON WHAT HAS NOT BEEN DISCLOSED OR IS NOT LIKELY TO BE DISCLOSED BEF ORE INCOME TAX DEPARTMENT. SIMILARLY WHILE RECORDING STATEMENTS DU RING CURSE OF SEARCH AND SEIZURES AND SURVEY OPERATIONS, NO ATTEM PT SHOULD BE MADE TO OBTAIN CONFESSION AS TO UNDISCLOSED INCOME. ANY ACTION ON THE CONTRARY WILL BE VIEWED ADVERSELY. ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 29 IN VIEW OF THE ABOVE, LD. COUNSEL FOR THE ASSESSEE ARGUED THAT THE BOARD RECOGNIZES THAT FORCED STATEMENTS ARE TAKEN B Y THE AUTHORITIES FROM ASSESSEE DURING SEARCH ADMITTING OR CONFESSING TO UNDISCLOSED INCOME BUT ACCORDING TO HIM, SUCH CONFESSION BY AN ORAL STATEMENTS WOULD NOT SUFFICE UNLESS THERE IS ENOUGH EVIDENCE T O CORROBORATE SUCH CONFESSION. IN VIEW OF THESE, HE ARGUED THAT NO DOC UMENT SUPPORTING CASH RECEIPT OF RS.15 LAKH WAS FOUND DURING THE COU RSE OF SEARCH AND THE ENTIRE STATEMENT OF SHRI BIPIN VOHRA. ACCORDING LY, THE PENALTY LEVIED BY THE AO CANNOT BE SUSTAINED. 10. IN RESPECT TO ADDITION OF RS.26.75 LAKH, LD. CO UNSEL FOR THE ASSESSEE ARGUED THAT THIS ADDITION RELATES TO SEIZE DOCUMENT ENCLOSED AT PAGE 65 OF PAPER BOOK. A PERUSAL OF THE SAME SHA LL CLARIFY THAT THE DOCUMENT NOWHERE MENTIONS THE PERIOD OF THE TRANSAC TION. IT MERELY RECORDS SOME TRANSACTIONS IN THE CASH AND BANK COLU MN. SOLELY ON THIS BASIS, THE AO PRESUMED THAT ENTRIES OF RS.640.25 ON RIGHT HAND SIDE ARE CASH PAYMENTS OF RS.6.4025 CRORES AND ENTRIES O N THE LEFT HAND SIDE OF RS.667 REPRESENT CASH RECEIPTS OF RS.6.67 C RORES. ACCORDINGLY HE TREATED THE NET AMOUNT OF RS.26.75 LAKH AS UNDIS CLOSED INCOME AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. HE EX PLAINED THAT THE SAID DOCUMENT IS A DUMB DOCUMENT SINCE IT IS DOES N OT SPECIFY THE PERIOD TO WHICH IT PERTAINS. THUS, IT IS NOT POSSIB LE TO TRACE OUT AS TO WHICH SET OF TRANSACTIONS CUMULATE TO THE FIGURES R EFLECTED IN THE PAGE. ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 30 FURTHER, THE SEIZED DOCUMENT NOWHERE MENTIONS ANY B ASIS FOR DECIPHERING THE FIGURES RECORDED IN THE SAID DOCUME NT. THUS, THE AO WAS NOT JUSTIFIED IN PRESUMING THAT THE FIGURES IN THE SEIZED DOCUMENT WERE IN LAKHS. NOW, SINCE THE DOCUMENT IS A DUMB DO CUMENT NO ADDITION COULD HAVE BEEN MADE ON THAT BASIS AS ALRE ADY DISCUSSED IN PARA 4.4 ABOVE. MOREOVER, THE SEIZED DOCUMENT DOES NOT CONSTITUTE BOOKS OF ACCOUNTS OF THE ASSESSEE. IT IS MERELY A L OOSE SHEET OF PAPER, WHICH HAS NO INTRINSIC VALUE. ATTENTION IN THIS REG ARD IS INVITED TO THE DEFINITION OF BOOKS OF ACCOUNTS U/S. 2(12A) OF THE ACT: BOOKS OR BOOKS OF ACCOUNTS INCLUDES LEDGERS, DAY-BOOKS, CAS H BOOKS, ACCOUNT- BOOKS AND OTHER BOOKS, WHETHER KEPT IN THE WRITTEN FORM OR AS PRINT- OUTS OF DATA STORED IN A FLOPPY, DISC. TAPE OR ANY OTHER FORM OF ELECTRO- MAGNETIC DATA STORAGE DEVICE; THUS FROM THE ABOVE, ACCORDING TO LD. COUNSEL OF AS SESSEE IT IS CLEAR THAT BOOKS OF ACCOUNTS INCLUDE LEDGERS, CASH BOOKS ETC., THE PAPER SEIZED FROM THE PREMISES OF ASSESSEE CLEARLY DOES N OT FALL WITHIN THE DEFINITION OF BOOKS OF ACCOUNTS. FROM A PLAIN READI NG OF THE ABOVE, IT IS CLEAR THAT UNDISCLOSED INCOME MEANS ANY INCOME REPRESENTED BY ANY ENTRY IN THE DOCUMENTS FOUND IN COURSE OF SEARC H WHICH ARE NOT RECORDED IN THE BOOKS OF THE ASSESSEE. HOWEVER, IN THE INSTANT CASE OF ASSESSEE, THE ADDITION I & II I.E. OF CASH EXPENSES AND PAYMENTS OF RS.71,90,623/- WAS INCLUDED IN THE DISCLOSURE PETIT ION AND THE RETURN FILED AFTER SEARCH AND ACCORDINGLY RECORDED IN THE BOOKS OF ACCOUNTS ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 31 OF THE ASSESSEE. THUS NO PENALTY U/S 271AAA CAN BE IMPOSED ON THE SAID AMOUNT. 11. FROM THE ABOVE EXPLANATION OF THE ASSESSEE IN R EGARD TO THE ADDITION OF RS.1,13,65,623/-, THE SAME ARE MORE OR LESS INCLUDED IN THE DISCLOSURE PETITION OF RS.6.84 CRORES AS AGAINST AV AILABILITY OF CASH. THE ITEMS OUTSIDE THE DISCLOSURE OF RS.6.84 CRORES IS ONLY THE EXPENSES PAID TO SAMPOORNA LOGISTICS AND ALLEGEDLY TO RECEIV ED BACK IN CASH ON ACCOUNT OF DISCOUNTS OFFERED BY TRANSPORT AND AD DED ON THE BASIS OF THE STATEMENT OF SHRI BIPIN VOHRA HAS NEVER BEEN CONFRONTED TO THE ASSESSEE AND THE STATEMENT IS WITHOUT ANY CORROBORA TIVE EVIDENCES. MOREOVER, THE ASSESSEE HAS FURNISHED EXPLANATION OF THE ABOVE ENTRIES ADDED BY THE AO DURING THE COURSE OF SCRUTINY PROCE EDINGS AND EVEN IN PENALTY PROCEEDINGS. THIS WAS ALSO EXPLAINED BEF ORE CIT(A) DURING THE APPELLATE PROCEEDINGS QUA THE LEVY OF PENALTY. IN VIEW OF THE ABOVE, NOW WE HAVE TO DISCUSS THE CASE LAW OF COORD INATE OF ITAT JABALPUR BENCH IN THE CASE OF ACIT V. SATYAPAL WASS AN 295 ITR (AT) 352 HELD THAT:- A CHARGE CAN BE LEVIED ON THE BASIS OF DOCUMENT O NLY WHEN THE DOCUMENT IS A SPEAKING ONE. THE DOCUMENT SHOULD SPE AK EITHER OUT OF ITSELF OR IN THE COMPANY OF OTHER MATERIAL FOUND ON INVESTIGATION AND/OR IN THE SEARCH. THE DOCUMENT SHOULD BE CLEAR AND UNAMBIGUOUS IN RESPECT OF ALL THE FOUR COMPONENTS O F THE CHARGE OF TAX. IF IT IS NOT SO, THE DOCUMENT IS ONLY A DUMB D OCUMENT. NO CHARGE CAN BE LEVIED ON THE BASIS OF A DUMB DOCUMEN T. A DOCUMENT FOUND DURING THE COURSE OF A SEARCH MUST BE A SPEAKING ONE AND WITHOUT ANY SECOND INTERPRETATION, MUST REF LECT ALL THE ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 32 DETAILS ABOUT THE TRANSACTION OF THE ASSESSEE IN TH E RELEVANT ASSESSMENT YEAR. ANY GAP IN THE VARIOUS COMPONENTS FOR THE CHARGE OF TAX MUST BE FILLED UP BY THE ASSESSING OFFICER T HROUGH INVESTIGATIONS AND CORRELATIONS WITH OTHER MATERIAL FOUND EITHER DURING THE COURSE OF THE SEARCH OR ON INVESTIGATION S. THE DOCUMENT WAS BEREFT OF NECESSARY DETAILS ABOUT THE YEAR OF TRANSACTION, OWNERSHIP, NATURE OF TRANSACTION, NECE SSARY CODE FOR DECIPHERING THE FIGU9RES. THE ASSESSING OFFICER PRE SUMED THAT THE TRANSACTION BELONGED TO THE FINANCIAL YEAR 1988-89 RELEVANT TO THE ASSESSMENT YEAR 1989-90, THAT THE FIGURES MENTIONED IN THE DOCUMENT WERE ADVANCES MADE BY THE ASSESSEE, THAT T HE TRANSACTIONS BELONGED TO THE ASSESSEE, AND THAT THE TRANSACTIONS WERE IN A CODE OF LAKHS AND THAT THE UNIT WAS THE R UPEE. THE ASSESSING OFFICER DID NOT CARRY OUT ANY ENQUIRY EIT HER DURING THE COURSE OF SEARCH OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO FIND OUT THE NATURE OF TRANSACTIONS AND THE PERIOD IN WHICH THOSE TRANSACTIONS WERE CARRIED OUT; HE HAD SIMPLY PRESUM ED THAT THE FIGURES WERE ADVANCES WITHOUT THERE BEING ANY MATER IAL ON RECORD TO SUPPORT SUCH PRESUMPTION. THE ASSESSING OFFICER HAD DRAWN INFERENCES, MADE PRESUMPTIONS, RELIED ON SURMISES A ND THUS MADE UNSUSTAINABLE ADDITIONS. IN THIS CASE ALSO THE ASSESSEE HAS EXPLAINED FIRSTL Y THAT THE PAYMENT OF RS.55 LAKH IS OUT OF THE AVAILABILITY OF CASH GENER ATED OUT OF DISCLOSURE OF RS.6.84 CRORES. EVEN OTHERWISE, THE DOCUMENT PAG E NO. 23 OF UKS/1 BEARS NO DATE AND DOES NOT MENTION THE NATURE OF THE TRANSACTION AND ON THE BASIS OF CONJECTURE AND SURM ISES PRESUMPTION CANNOT BE DRAWN THAT THIS IS INCOME. ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 33 12. SIMILARLY HON'BLE ANDHRA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX V. SHRI RAMDAS MOTOR TRANSPORT (1999) 238 ITR 177 (AP) HELD THAT:- UNDER THE PROVISIONS OF SECTION 132(4) AS IT EXIST ED AT THE RELEVANT TIME THE QUESTION OF EXAMINING ANY PERSON BY THE AU THORISED OFFICER WOULD ARISE ONLY WHEN HE FOUND SUCH PERSON TO BE IN POSSESSION OF ANY UNDISCLOSED MONEY OR BOOKS OF ACCOUNTS. BUT, IN THIS CASE, IT WAS ADMITTED BY THE REVENUE THAT ON THE DATES OF SE ARCH, THE DEPARTMENT WAS NOT ABLE TO FIND ANY UNACCOUNTED MON EY, UNACCOUNTED BULLION OR ANY OTHER VALUABLE ARTICLES OR THINGS, NOR ANY UNACCOUNTED DOCUMENTS NOR ANY SUCH INCRIMINATIN G MATERIAL EITHER FROM THE PREMISES OF THE COMPANY OR FROM THE RESIDENTIAL HOUSES OF THE MANAGING DIRECTOR AND OTHER DIRECTORS . IN SUCH A CASE, WHEN THE MANAGING DIRECTOR OR ANY OTHER PERSO NS WERE NOT FOUND TO BE IN POSSESSION OF ANY INCRIMINATING MATE RIAL, THE QUESTION OF EXAMINING THEM BY THE AUTHORISED OFFICE R DURING THE COURSE OF EACH AND RECORDING ANY STATEMENT FROM THE M BY INVOKING THE POWERS UNDER SECTION 132(4) DID NOT ARISE. THE EXPLANATION TO SECTION 132(4) PERMITTING SUCH EXAMINATION CAME INT O EFFECT ONLY FROM APRIL 1, 1980. EVEN IF IT WERE HELD THAT HE ST ATEMENT OF THE MANAGING DIRECTOR FELL UNDER THE EXPLANATION TO SEC TION 132(4), THE TRIBUNAL HAD RECORDED A FINDING OF FACT TO THE EFFE CT THAT THE STATEMENT OF THE MANAGING DIRECTOR OR THAT OF THE O THER PARTNERS HAD NO EVIDENTIARY VALUE AS THEY WERE NOT SUPPORTED BY ANY DOCUMENTARY PROOF. NO QUESTION OF LAW AROSE FROM TH E ORDER OF THE TRIBUNAL. 13. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, A ND LEGAL POSITION DISCUSSED ABOVE, THE PENALTY TO BE LEVIED FOR UNDIS CLOSED INCOME AS PER THE PROVISION OF SEC. 271AAA OF THE ACT, WE HAV E TO UNDERSTAND THE MEANING OF UNDISCLOSED INCOME AND THE RELEVANT PROVISION DEFINE UNDISCLOSED INCOME AS UNDER:- (A) UNDISCLOSED INCOME MEANS- (I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRE SENTED, EITHER WHOLLY OR PARTLY, BY ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF ACCOUNTS OR ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 34 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 SEAR CH IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PREVIOUS YEAR; OR (B) OTHERWISE NOT BEEN DISCLOSED TO THE CHIEF COMMI SSIONER OR COMMISSIONER BEFORE THE DATE OF THE SEARCH ; OR FROM THE ABOVE, IT IS CLEAR THAT UNDISCLOSED INCOME MEANS ANY INCOME REPRESENTED BY ANY DOCUMENTS FOUND DURING T HE COURSE OF SEARCH, WHICH ARE NOT RECORDED IN THE BOOKS OF ACCO UNTS OF THE ASSESSEE. IN THE INSTANT CASE, THE ADDITIONS OF CAS H EXPENSES AND PAYMENTS OF RS.71,90,623/- IS THE RESULT OF CASH AV AILABLE OUT OF THE DISCLOSED CASH OF RS.6.84 CRORES WHICH WAS INCLUDED IN THE DISCLOSURE PETITION. FURTHER, ADDITION OF RS.15 LAKH ON ACCOUN T OF ALLEGED CASH RECEIPTS FROM SAMPOORNA LOGISTICS, WHICH WAS ALLEGE D TO BE REIMBURSEMENT, IT IS CLEAR THAT EXPENDITURE RECORDE D IN THE BOOKS OF ACCOUNTS CAN BE HELD TO BE UNDISCLOSED INCOME OF TH E ASSESSEE IF THE SAID EXPENDITURE IS FOUND TO BE FALSE. IT IS THE DE PARTMENT ON WHOM, ONUS OF PROVING THAT EXPENDITURE RECORDED IN THE BO OKS IS BOGUS OR FALSE BASED ON DOCUMENTARY EVIDENCES FOUND IN THE C OURSE OF SEARCH. HERE IN THE PRESENT CASE, NO DOCUMENTARY EVIDENCES ESTABLISHING THE FALSITY OF CLAIM OF TRANSPORTATION CHARGES PAID TO SAMPOORNA LOGISTICS WAS FOUND IN THE COURSE OF SEARCH. ACCORDING TO US THE SAID EXPENDITURE CANNOT BE HELD TO BE UNDISCLOSED INCOME OF THE ASSESSEE FOR THE PURPOSE OF LEVYING PENALTY U/S. 271AAA OF T HE ACT. 14. HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT V. SARDA RICE AND OIL MILLS 117 ITR 917 (CAL) HELD:- THE ITO AND THE IAC HAD PROCEED ENTIRELY ON THE BA SIS OF THE DISCLOSURE MADE BY THE ASSESSEE. THE TRIBUNAL HAD F OUND AS A FACT THAT THE DISCLOSURE HAD NO EVIDENTIARY VALUE A ND WAS NOTHING BUT A SCRAP OF PAPER AND THE FINDING HAD NO T BEEN ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 35 CHALLENGED BY THE REVENUE AS PERVERSE OR BASED ON I RRELEVANT EVIDENCE OR NO EVIDENCE AT ALL. THEREFORE, THE FIND ING OF THE TRIBUNAL THAT THE PROVISIONS OF S. 271(1) WERE NOT ATTRACTED WAS NOT ERRONEOUS. SIMILARLY, THE HON'BLE MADRAS HIGH COURT IN CASE OF CIT VS. M. PACHAMUTHU 295 ITR 502 (MAD) HELD:- MERE ADDITION AGREED TO BY THE ASSESSEE DURING THE COURSE OF SURVEY WOULD NOT EMPOWER THE ASSESSING OFFICER TO L EVY THE PENALTY UNDER SECTION 271(1) OF THE INCOME-TAX ACT , 1961 THE FACT THAT THE ASSESSEE HAD AGREED TO ADDITIONS TO INCOME WAS NOT PROOF OF CONCEALMENT. EVEN HON'BLE KERALA HIGH COURT IN THE CASE OF CIT V S. M. GEORGE & BROTHERS 59 CTR 298 (KEL) HELD THAT:- WHERE THE ASSESSEE FOR ONE REASON OR THE OTHER AGR EES OR SURRENDERS CERTAIN AMOUNTS FOR ASSESSMENT, THE IMPO SITION OF PENALTY SOLELY ON THE BASIS OF THE ASSESSEES SURRE NDER WILL NOT BE WELL-FOUNDED. DEPENDING UPON THE FACTS AND CIRCU MSTANCES OF EACH CASE THE COURT HAS TO DECIDE WHETHER PENALTY I S JUSTIFIED. IT IS ALWAYS FOR THE REVENUE TO BRING THE CASE UNDER T HE AMBIT O SEC. 271(1) BY ESTABLISHING THERE IS CONCEALMENT O N THE PART OF THE ASSESSEE. THE EXPLANATION TO SEC. 271(1) INSER TED W.E.F. 1STD APRIL, 1964 MERELY RAISES A REBUTTABLE PRESUMP TION BUT THE BASIC PRINCIPLE THAT THERE SHOULD BE HAVE BEEN CONC EALMENT STILL REMAINS. FURTHER HON'BLE PUNJAB & HARYANA HIGH COURT IN CASE OF COMMISSIONER OF INCOME-TAX V. RAJIV GARG 313 ITR 25 6 (P&H) UPHELD THE ORDER OF THE TRIBUNAL WHERE IT WAS OBSER VED THAT MERELY BECAUSE AN INCOME HAS BEEN OFFERED BY THE A SSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION 148, IT CANNOT BE IPSO FACTO INFERRED THAT THE PENAL PROVISIONS OF SECTION 271(1 ) ARE ATTRACTED. IN ORDER TO APPLY THE PENAL PROVISIONS O F SECTION 271(1) IT IS TO BE NECESSARILY INFERRED THAT THERE IS POSITIVE ACT OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE P ARTICULARS OF SUCH INCOME BY THE ASSESSEE. IT IS FURTHER HELD THAT THE DEPARTMENT HAD SIMPLY RESTED ITS CONCLUSION ON THE ACT OF THE ASSESSEE OF HAVING OFFERED ADDITIONAL INCOME IN THE RETURN ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 36 FILED IN RESPONSE TO NOTICE UNDER SECTION 148 OF TH E ACT. AS NOTED EARLIER, THE ADDITIONAL INCOME SO OFFERED BY THE AS SESSEE WAS DONE IN GOOD FAITH AND, THEREFORE, IN OUR VIEW, PENALTY UNDER SECTION 271(1) OF THE ACT COULD NOT BE LEVIED. FURTHER HON'BLE BOMBAY HIGH COURT IN CASE OF CIT VS . HAJI GAFFAR HAJI DADA CHINI 169 ITR 033 (BOM) HELD THAT:- ON THE FACTS OF THE CASE, THE TRIBUNAL HAD TAKEN A POSSIBLE VIEW ON THE QUESTION BEFORE IT AND, THEREFORE, THERE WAS NO REASON TO INTERFERE WITH ITS CONCLUSION THAT THE LETTER ADDRE SSED BY THE ASSESSEE TO THE INCOME-TAX OFFICER OFFERING CREDITS IN RESPECT OF HUNDI LOANS FOR ASSESSMENT AND ALSO STATING THAT TH E PENALTY UNDER SECTION 271(1) OF THE INCOME-TAX ACT, 1961, MAY BE DECIDED ON THE MERITS, DID NOT AMOUNT TO AN ADMISSION OF CONCE ALMENT OF INCOME AND THE LEVY OF PENALTY ON SUCH BASIS WAS LI ABLE TO BE QUASHED. FROM THE ABOVE, IT IS CLEAR THAT PENALTY CANNOT BE LEVIED MERELY ON THE ADMISSION OF THE ASSESSEE AND THERE MUST BE SOME CO NCLUSIVE EVIDENCE BEFORE THE AO THAT ENTRY MADE IN THE SEIZED DOCUMEN TS, REPRESENTS UNDISCLOSED INCOME OF THE ASSESSEE. IN THE INSTANT CASE, IN RESPECT TO THE AMOUNT OF RS.1,13,65,623/-, THERE IS NO EVIDENC E WHICH PROVES THAT THE ENTRIES RECORDED IN THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH IS OVER AND ABOVE THE INCOME AS DECLARED BY THE ASSESSEE AT RS.6.84 CRORES AS UNDISCLOSED INCOME AND ACCEPTED B Y REVENUE. IN VIEW OF THE ABOVE, WE DELETE THE PENALTY AND ALLOW THE APPEAL OF THE ASSESSEE. 15. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED AN D THAT OF REVENUE IS DISMISSED. ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 37 2.18 NOW, WE SHALL DEAL WITH THE ORDER IN ACIT VS PRAKASH STEELAGE LTD. (SUPRA) RELIED UPON BY THE LD . DR. IN THAT CASE, PENALTY OF CONCEALMENT U/S 271AAA WAS LE VIED BY THE ASSESSEE. IN THAT CASE, THE ASSESSEE COULD NOT SPECIFY THE MANNER IN WHICH SUCH INCOME WAS DERIVED. THE COMMIS SIONER OF INCOME TAX (APPEAL) DELETED THE PENALTY ON THE B ASIS OF FINDING THAT THERE WAS SUBSTANTIAL COMPLIANCE OF TH E PROVISION BY THE ASSESSEE. HOWEVER, THE TRIBUNAL REMANDED THE APPEAL FOR STATISTICAL PURPOSES WITH CERTAIN DIRECTIONS. H OWEVER, IN THE PRESENT APPEAL, THE ASSESSEE MADE A BONA FIDE DISCL OSURE AND SO FAR AS THE MANNER IS CONCERNED, THE ASSESSING OFFICER/AUTHORIZE OFFICER DID NOT ASK IN A SPECIFIE D MANNER AND ACCEPTED THE DISCLOSURE MADE BY THE ASSESSEE ON WHI CH DUE TAXES ALONG WITH INTEREST WERE PAID BY THE ASSESSEE , THEREFORE, THIS JUDICIAL DECISION MAY NOT HELD THE REVENUE. EV EN OTHERWISE, IT IS SETTLED PROPOSITION THAT WHEN TWO VIEWS ARE POSSIBLE, WHICH FAVOURS THE ASSESSEE HAS TO BE PREF ERRED (CIT VS VEGETABLE PRODUCTS LTD.) 88 ITR 192(SC). EVEN OT HERWISE, THE DEPARTMENT CANNOT TAKE THE ADVANTAGE OF THE IGN ORANCE OF THE ASSESSEE AS WAS HELD IN RAJ RANI GULATI VS CIT (2012) 346 ITR 543 (ALL.), CIT VS GEO INDUSTRIES 234 ITR 541 ( MAD.) AND ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 38 CIT VS LUCKNOW PUBLIC EDUCATION SOCIETY (2009) 318 ITR 223 (ALL.). 2.19. IF THE TOTALITY OF FACTS ARE ANALYZED, SO FA R AS, MANNER (SPECIFIED MANNER) OF EARNING OF UNDISCLOSED INCOME WAS NEITHER QUESTIONED BY THE DDIT NOR BY THE LD. A SSESSING OFFICER, THEREFORE, THE DECISION IN MAHENDRA C SHAH (SUPRA) FROM HONBLE GUJARAT HIGH COURT AND RADHA KRISHNA G OEL (SUPRA) FROM HONBLE ALLAHABAD HIGH COURT SQUARELY SUPPORTS THE CASE OF THE ASSESSEE. IT IS NOTED THAT THE STA TEMENT OF THE PARTNER OF THE ASSESSEE WAS RECORDED U/S 132(4) OF THE ACT ON 16/11/2009 I.E. DATE OF SEARCH AND POST SEARCH PROC EEDINGS ON 08/2/2010 AND ALSO AT THE TIME OF ASSESSMENT PRO CEEDINGS ON 14/12/2011. ON ALL THESE OCCASIONS, THE ASSESSEE WAS NEVER ASKED TO SUBSTANTIATE THE SOURCE OF INCOME OR THE MANNER OF EARNING SUCH INCOME. THE ASSESSEE TO BUY PEACE WITH THE DEPARTMENT, TO AVOID LITIGATION AND ON THE CONDITION THAT PENALTY SHOULD NOT BE IMPOSED MADE A DISCLOSUR E OF THE ADDITIONAL INCOME, PAID DUE TAXES THEREON ALONG WIT H INTEREST. IT IS ALSO NOTED THAT ON THE BASIS OF STATEMENT OF GANGDAS PATEL, THE LD. ASSESSING OFFICER ACCEPTED THE ADDIT IONAL ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 39 DISCLOSURE OF RS.8.45 CRORES FROM THE CONSTRUCTION BUSINESS OF THE ASSESSEE AND THE ASSESSING OFFICER ACCEPTED THE QUANTUM AND NATURE OF DISCLOSURE, THUS, THE PENALTY CANNOT BE HELD TO BE JUSTIFIED. THE DECISION IN DCIT VS SMT. SULOCHAN A DEVI AGARWAL (ITA NO.1052/AHD/2012) SUPPORTS THE CASE OF THE ASSESSEE. IT IS ALSO NOTED THAT SO FAR AS THE MANNE R IS CONCERNED, NEITHER ANY SPECIFIC QUESTION WAS ASKED BY THE ASSESSING OFFICER/AUTHORIZE OFFICER NOR A SPECIFIC FORMAT, IF ANY, OF MANNER WAS PROVIDED TO THE ASSESSEE. EVEN DURING POST SEARCH PROCEEDINGS/ASSESSMENT PROCEEDINGS, THE ASSE SSEE PROVIDED THE BRAKE-UP OF THE DISCLOSURE. IN VIEW OF THE FOREGOING DISCUSSION, THE REASONING GIVEN IN THE PE NALTY ORDER FOR LEVYING THE PENALTY AND THE CONFIRMATION OF THE SAME IN THE IMPUGNED ORDER ALSO CANNOT BE JUSTIFIED. 2.20. EVEN OTHERWISE THE PENALTY U/S 271AAA OF THE ACT IS NOT MANDATORY. AS SUB-SECTION (1) TO SECTION 271AA A STARTS WITH THE WORDS THE ASSESSING OFFICER MAY, NOTWITHSTANDING THE WORD USED SHALL, THUS, THE LEGISLATURE IN ITS WISDOM HAS NOT MADE THE PENALTY PROVISION MANDATORY. THUS, IT DEPENDS UPON THE FACTS OF EACH CASE AND THE JUDICIAL ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 40 SATISFACTION/JUDICIAL DISCRETION OF THE ASSESSING O FFICER, WHICH HAS TO BE EXERCISED HAVING REGARD TO HIS JUDICIAL C ONSCIOUS. THE VERY FACT THAT THE DISCLOSURE WITH RESPECT TO U NDISCLOSED INCOME WAS MADE BY THE ASSESSEE WITH THE INTENTION OF PROXIMATE NATURE OF ACQUISITION OF HIS BUSINESS ACT IVITIES. IF THE MINUTE DETAILS ARE PROVIDED IN THE BOOKS OF ACCOUNT S AND CONSEQUENTLY DISCLOSED, THERE IS NO QUESTION OF ADD ITIONAL DISCLOSURE BY THE ASSESSEE. THE REQUIREMENT OF SUB -SECTION (2) TO SECTION 271AAA IS THAT THE MANNER OF EARNING INC OME SHOULD BE SPECIFIED SO THAT NO UNDUE ADVANTAGE IS T AKEN. IT WAS THE DUTY OF THE ASSESSING OFFICER/AUTHORIZE OFF ICER EITHER TO GUIDE THE ASSESSEE WITH RESPECT TO THE MANNER OR TO RECORD THE STATEMENT OF THE ASSESSEE IN A MANNER TO THEIR SATISFACTION. AS MENTIONED EARLIER, THE ASSESSING OFFICER ACCEPTE D THE DISCLOSURE OF ADDITIONAL INCOME ON WHICH DUE TAXES ALONG WITH INTEREST WERE PAID BY THE ASSESSEE, THEREFORE, CONS IDERING THE TOTALITY OF FACTS AND THE JUDICIAL PRONOUNCEMENTS D ISCUSSED HEREINABOVE, WE FIND MERIT IN THE SUBMISSIONS OF TH E ASSESSEE, CONSEQUENTLY, THE APPEAL OF THE ASSESSEE IS ALLOWED AND THE LD. ASSESSING OFFICER IS DIRECTED TO DELETE THE PENALTY . ITA NO.7129/MUM/2013 M/S OPTIONS DEVELOPERS & BUILDERS 41 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN ON 16/05/2016. SD/- SD/- ( ASHWANI TANEJA ) (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER $ # / JUDICIAL MEMBER MUMBAI; ' DATED :16/05/2016 F{X~{T? P.S/. .. !%$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. )*+, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / 0 ( )* ) / THE CIT, MUMBAI. 4. / / 0 / CIT(A)- , MUMBAI 5. 2!3- , / )*%) 4 , / DR, ITAT, MUMBAI 6. 56 / GUARD FILE. ! / BY ORDER, .2* - //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI