ACIT, Jaipur V. LAXMI NARAYAN TAK, Jaipur

ITA 786/JPR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5197 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 24-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAGHUVIR SINGH DAGUR
• Assessee Lawyers: MANISH AGARWAL CA DHK
• Keywords: Rejection of books of accounts; Loose papers; Document seized; Difference of opinion; Documents seized; Change of opinion
• Section: 143(3); 133A; 153A; 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 786/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, JAIPUR. CUKE VS. SHRI LAXMI NARAYAN TAK, 21, KHANDA HAWA MAHAL, BADI CHAUPAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABFPT 4889 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 809/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. SMT. PRABHA L/H OF SHRI LAXMI NARAYAN TAK, PROP M/S. GULAB CHAND LAXMI NARAYAN 205, TAK HOUSE, KATLA PUROHITJI KA, JAIPUR. CUKE VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABFPT 4889 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAGHUVIR SINGH DAGUR (ADDL.CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20.07.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 09/08/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THESE ARE TWO CROSS APPEALS BY THE REVENUE AND ASS ESSEE AGAINST THE ORDER OF LD. CIT (A) DATED 16.09.2014 PERTAINING TO ASSES SMENT YEAR 2009-10. THE GROUNDS RAISED BY THE REVENUE IS AS UNDER :- 2 ITA NO. 786(2)/JP/2014 ACIT VS. LAXMI NARAIN TAK. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , ORDER OF THE LD. CIT (A)(C), JAIPUR IS NOT JUSTIFIED IN DELETING PEN ALTY OF RS. 26,34,721/- LEVIED BY THE AO U/S 271AAA OF THE IT ACT, 1961. 2. BRIEFLY STATED THE FACTS ARE THAT A SEARCH AND S EIZURE ACTION UNDER SECTION 132 AND/OR SURVEY U/S 133A OF THE IT ACT (HEREINAFTER R EFERRED TO AS THE ACT) WAS CONDUCTED AT THE BUSINESS AND RESIDENTIAL PREMISES GULAB CHAND TAK GROUP, JAIPUR ON 06.01.2009. THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 153A OF THE I.T. ACT, 1961 WAS FRAMED VIDE ORDER DATED 20.12.20 14. WHILE FRAMING THE ASSESSMENT, THE AO INITIATED PENALTY PROCEEDINGS UN DER SECTION 271AAA ON THE GROUND THAT THE TOTAL INCOME DECLARED IN THE RETURN FOR THE SPECIFIED YEAR INCLUDED THE UNDISCLOSED INCOME OF RS. 2,63,47,310/- WHICH R EPRESENTED THE UNEXPLAINED MONEY IN THE FORM OF UNRECORDED SALES AND CASH FOUN D. ACCORDINGLY, ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 29.12.2010 BY ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT RS. 4,35,79,460/-. THE AO ALSO I NITIATED PENALTY U/S 271AAA OF THE ACT FOR THE UNDISCLOSED INCOME OF RS. 2,63,47,3 10/- BY WAY OF ISSUE OF SHOW CAUSE NOTICE DATED 06.02.2013 U/S SECTION 271AAA OF THE ACT AS PER PARA 10 OF THE PENALTY ORDER. IN COMPLIANCE, THE ASSESSEE FILED DETAILED WRITTEN SUBMISSION ON 26.02.2013. THE SUBMISSIONS OF THE ASSESSEE ON THE ISSUE OF SURRENDER MADE IN THE RETURN OF INCOME FILED WERE CONSIDERED BY THE AO CA REFULLY BUT HE COULD NOT FOUND IT ACCEPTABLE IN THE LIGHT OF FACTS OF THE CASE. THE AO HELD THAT SINCE THE ASSESSEE HAS NEITHER SPECIFIED NOR SUBSTANTIATED THE MANNER IN W HICH INCOME HAS BEEN DERIVED, THEREFORE HE HELD THE ASSESSEE LIABLE FOR PENALTY U /S 271AAA OF THE ACT ON SUCH DISCLOSURE IN THE RETURN THOUGH IT IS PART OF RETUR NED INCOME. SUBSEQUENTLY A PENALTY 3 ITA NO. 786(2)/JP/2014 ACIT VS. LAXMI NARAIN TAK. ORDER UNDER SECTION 271AAA OF THE ACT DATED 25.03.2 013 WAS PASSED ON THE GROUND THAT THE ASSESSEE COULD NOT SATISFACTORILY EXPLAIN AND SUBSTANTIATED THE INCOME DURING THE ASSESSMENT PROCEEDINGS. THE ASSESSEE AGG RIEVED BY THIS ORDER, PREFERRED AN APPEAL BEFORE LD. CIT (A), WHO AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 3. NOW BOTH THE REVENUE AND ASSESSEE ARE IN APPEAL BEFORE US. 4. THE LD. D/R SUPPORTED THE ORDER OF THE AO. 4.1. ON THE CONTRARY, LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF LD. CIT (A) TO THE EXTENT OF DELETION OF ADDITION OF RS. 26 ,34,721/- AND SUBMITTED THAT THE AO FAILED TO APPRECIATE THE FACTS AND WRONGLY APPLI ED THE PROVISIONS. HE SUBMITTED THAT THE LD. CIT (A) HAS EXAMINED THE FACTS AND HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE. 4.2. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE WITH REGARD TO THE FAC T THAT THE ASSESSEE HAS OFFERED IN HIS RETURN OF INCOME THE UNDISCLOSED INCOME OF RS. 2,63,47,310/-. THE SAME ARE DULY RECORDED BY THE AO AT PARA 4 OF THE PENALTY ORDER. NOWHERE IN THE PENALTY ORDER, THE AO RECORDED THAT THE ASSESSEE WAS ASKED TO SPECIFY OR SUBSTANTIATE THE MANNER IN WHICH THE INCOME HAS BEEN DERIVED AND THE ASSESSEE HAS FAILED TO DO SO. THE AO HAS MERELY RECORDED THAT THE TOTAL INCOME DECLARED IN THE RETURN OF INCOME FOR THE SPECIFIED YEAR INCLUDED THE UNDISCLOSED INCOME OF R S. 2,63,47,310/- WHICH REPRESENTED THE UNEXPLAINED MONEY IN THE FORM OF U NRECORDED SALES AND CASH. THE LD. CIT (A) WHILE DEALING WITH THE MATTER HAS OBSER VED AT PAGE 20 OF HIS ORDER AS UNDER :- 4 ITA NO. 786(2)/JP/2014 ACIT VS. LAXMI NARAIN TAK. TO CONCLUDE, IT IS REITERATED THAT FROM THE STATE MENTS U/S 132(4), IT IS CLEAR THAT THE MANNER OF EARNING OF INCOME WAS CLEA RLY EXPLAINED AND THIS WAS SUBSTANTIATED BY THE DOCUMENTS SEIZED BY T HE DEPARTMENT AND THIS SUBSTANTIATING EVIDENCE BY WAY OF ANNEX. A -1 DIARY IN WHICH THE DETAILS OF UNRECORDED SALES WERE MENTIONED WAS WITH THE DEPARTMENT ITSELF. IT IS NOT CLEAR WHAT OTHER SUBST ANTIATING EVIDENCE WAS REQUIRED TO BE FILED BY THE APPELLANT PARTICULA RLY WHEN, WHILE FILING HIS RETURN OF INCOME HE HAS PREPARED A CASH FLOW ST ATEMENT ON THE BASIS OF SEIZED DOCUMENTS AND MADE A YEAR WISE CHAR T OF UNDISCLOSED INCOME. GIVEN THESE FACTS IT CANNOT BE SAID THAT TH E APPELLANT WAS NOT COVERED BY THE IMMUNITY PROVISIONS OF SUB-SEC. 2(I) AND 2(II) OF SEC. 271AAA. THE LD. CIT (A) PLACED RELIANCE IN THE CASE OF PRAM OD KUMAR JAIN VS. DCIT, ITAT, CUTTACK BENCH (2012) 77 DTR 244 AND NEERAT SEHGAL V S. ACIT DATED 24.6.2013 (ITAT DELHI). FINALLY, THE LD. CIT (A) DELETED THE PENALTY AS UNDER :- GIVEN THE FINDING OF FACT AND LAW APPLICABLE TO T HESE FACTS AS DISCUSSED IN DETAIL ABOVE, IT IS HELD THAT THE PROV ISIONS OF SEC. 2 TO SEC. 271AAA ARE APPLICABLE TO THE INCOME OF RS. 2,63,47, 210/- SURRENDERED BY THE APPELLANT WHILE FILING HIS RETURN OF INCOME. THEREFORE, THE PENALTY U/S 271AAA ON THIS AMOUNT OF RS. 2,63,47,21 0/- IS DELETED. WE FIND THAT THE CASE OF THE ASSESSEE IS SQUARELY C OVERED BY THE DECISION OF THE COORDINATE BENCH OF THE JAIPUR TRIBUNAL RENDERED IN THE CASE OF DCIT VS. SHRI RAHUL MANGAL & OTHERS IN ITA NO. 1026/JP/2015 & ORS. WHER EIN ON SIMILAR FACTS THE CLAIM OF THE ASSESSEE WAS ALLOWED BY DELETING THE ADDITIO N MADE BY THE AO, THEREBY DISMISSED THE APPEALS OF THE OF THE REVENUE. RESPEC TFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH, WE UPHELD THE ORDER OF LD. CI T (A) TO THIS EXTENT. THE AO IS DIRECTED TO DELETE THE ADDITION. THE APPEAL OF THE REVENUE IS DISMISSED. 5. NOW WE TAKE UP THE APPEAL OF THE ASSESSEE. 6. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 5 ITA NO. 786(2)/JP/2014 ACIT VS. LAXMI NARAIN TAK. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE L D. CIT (A) HAS GROSSLY ERRED IN SUSTAINING PENALTY U/S 271AAA AT RS. 1,63, 669/- ARBITRARILY. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT (A) HAS GROSSLY ERRED IN UPHOLDING THE PENALTY BY IGNORING THE PROV ISIONS OF SUB-SECTION (2) OF SECTION 271AAA WHICH PROVIDES IMMUNITY FROM PENALTY WHICH IS SQUARELY APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THUS THE PENALTY OF RS. 1,63,669/- SO LEVIED DESERV ES TO BE DELETED. 2.1. THAT THE LD. CIT (A) HAS FURTHER ERRED IN NOT CONSI DERING THE STATEMENTS OF ASSESSEE RECORDED U/S 132(4) WHEREIN THE ASSESSE E HAS ADMITTED THE UNDISCLOSED INCOME AND HAS DULY EXPLAINED THE M ODE AND MANNER OF EARNING THE UNDISCLOSED INCOME AND HAS FURTHER S UBSTANTIATED THE SAME, THEREFORE PENALTY SUSTAINED DESERVES TO BE DE LETED. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT (A) HAS GROSSLY ERRED IN SUSTAINING THE PENALTY U/S 271AAA ON THE T RADING ADDITION OF RS. 60,000/- BY IGNORING THE FACT THAT THE LD. AO HAS M ADE THE ADDITION ON ESTIMATE BASIS FOR POSSIBLE LEAKAGE OF REVENUE, WIT HOUT ANY ADVERSE VIEW OR OBSERVATION AGAINST THE SUBMISSION MADE BY THE A SSESSEE, HENCE, THE PENALTY LEVIED ON THIS COUNT DESERVES TO BE DELETED . 3.1. THAT THE LD. CIT (A) HAS FURTHER ERRED IN UPHOLDING THE PENALTY U/S 271AAA ON RS. 15,76,694/- ON ACCOUNT OF UNEXPLAINED MARRIAGE EXPENSES SOLELY ON THE BASIS OF THE SEIZED DOCUMENT A-77 PAGE 54 FOUND DURING THE SEARCH WITHOUT APPRECIATING THE FA CT THAT THE ENTRIES CONTAINED THEREIN ARE MERE ESTIMATES AND DESERVES T O BE IGNORED AND EXCLUDED THEREFORE, THE PENALTY CONFIRMED BY LD. CI T (A) U/S 271AAA DESERVES TO BE DELETED. 3.2. THAT THE LD. CIT (A) HAS FURTHER ERRED IN UPHOLDING THE PENALTY U/S 271AAA WITHOUT APPRECIATING THE FACT THAT THE ADDIT ION SUSTAINED IS ON ESTIMATE BASIS AND MERE CHANGE OF OPINION WITHOUT B RINGING ON RECORD ANY MATERIAL AND THERE IS NOTHING WHICH HAS NOT DIS CLOSED BY THE ASSESSEE OR HAS NOT BEEN REPORTED AND MERE MAKING O F CLAIM, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW, BY ITSELF WILL NEITHER AMOUNT TO FURNISHING OF INACCURATE PARTICULAR NOR TANTAMOUNT TO THE CONCEALMENT OF INCOME BY THE ASSESSEE ESPECIALLY WHEN THE DETAI LS SUPPLIED IN THE RETURN WAS NOT FOUND TO BE INCORRECT/ERRONEOUS OR F ALSE. HENCE THE PENALTY SO CONFIRMED DESERVES TO BE DELETED IN TOTO . ALL THESE GROUNDS OF APPEAL PERTAIN TO CONFIRMATION OF PENALTY U/S 271AAA AT RS. 1,63,669/- ON THE ADDITION OF RS. 16,36,694/-. 6 ITA NO. 786(2)/JP/2014 ACIT VS. LAXMI NARAIN TAK. 6.1. IN THIS REGARD THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED AS UNDER :- SINCE ALL THESE GROUNDS OF APPEAL PERTAIN TO CONFIR MATION OF PENALTY U/S 271AAA AT RS.1,63,669/- ON THE ADDITION OF RS. 16,3 6,694/-, THUS THE SAME ARE CANVASSED TOGETHER FOR SAKE OF CONVENIENCE. WITH REGARD TO THE TRADING ADDITION OF RS. 60,000/- MADE AND SUSTAINED IN APPELLATE PROCEEDINGS, ATTENTION OF THE HONBLE BEN CH IS INVITED TO THE OBSERVATIONS OF LD. AO MADE IN ASSESSMENT ORDER AT PARA 2 AT PAGE 6 WHEREIN WHILE MAKING THE ADDITIONS THE LD. AO HAS OBSERVED AS UNDER: THE REJECTION OF BOOKS OF ACCOUNTS NECESSITATES TH AT THE PROFITS OF THE ASSESSEE BE ESTIMATED. IN THE RELEVANT AY , GROSS PROFIT RATE OF 8.31% WAS DECLARED AS AGAINST A GP RATE OF 7.80% IN THE I MMEDIATELY PRECEDING YEAR THEREBY SHOWING AN INCREASE 0.51%. T HE TURNOVER OF THE ASSESSEE HAS INCREASED TO RS. 224.23 LAKHS FROM RS. 208.66 LAKHS IN THE IMMEDIATELY PRECEDING YEAR. CONSIDERING THE ABOVE, A TRADING ADDITION OF RS. 60,000/- ONLY IS MADE ON AN ESTIMAT E BASIS TO PROTECT THE INTEREST OF REVENUE . FROM THE OBSERVATIONS OF THE LD. AO, IT IS EVIDENT THAT THE ADDITION WAS MADE ON ESTIMATE BASIS FOR POSSIBLE LEAKAGE OF REVENUE, WIT HOUT MAKING ANY REFERENCE TO THE SEIZED DOCUMENTS FOUND AS A RESULT OF SEARCH OR ANY ADMISSION OF ANY UNDISCLOSED INCOME IN THE STATEMENTS RECORDED DURING THE COURSE OF SEARCH OF THE ASSESSEE OR HIS FAMILY MEMBERS. THE ADDITION WAS MADE BY INVOKING T HE PROVISION OF SECTION 145(3) WHERE ACCORDING TO LD. AO, ESTIMATION OF INCOME IS NECESSITATE WHEN BOOKS ARE REJECTED. DURING THE COURSE OF ASSESSMENT PROCEEDIN GS THE ASSESSEE HAS FURNISHED COMPLETE DETAILS OF PURCHASES AND SALES AND EXPENSE S INCURRED TO SUBSTANTIATE THE TRADING RESULTS DECLARED BY THE ASSESSEE MORE PARTI CULARLY WHEN THE ASSESSEE HAS DECLARED BETTER TRADING RESULTS IN COMPARISON TO PR ECEDING YEAR. THE ASSESSEE HAS NOT CHALLENGED THIS ADDITION BEFORE THE APPELLATE AUTHO RITIES WHICH DOESNT MEAN THAT THE ASSESSEE HAS CONCEALED THE INCOME TO SUCH EXTENT MO RE PARTICULARLY WHEN ASSESSEE HAS DECLARED BETTER RESULTS AND ADDITION WAS MADE WITHO UT REFERRING TO ANY SEIZED MATERIAL. LD. CIT(A) WHILE SUSTAINING THE PENALTY ON SUCH ADD ITION HAS CO-RELATED THE SAME WITH THE DISALLOWANCE MADE U/S 40(A)(IA) WHICH DISALLOWA NCE WAS DELETED BY THE HONBLE 7 ITA NO. 786(2)/JP/2014 ACIT VS. LAXMI NARAIN TAK. ITAT BY HOLDING THAT WHEN TRADING ADDITION IS MADE BY INVOKING THE PROVISIONS OF SECTION 145(3) NO FURTHER DISALLOWANCE SHOULD BE MA DE. IN THIS REGARD, IT IS SUBMITTED THAT ALL THE FACTS PERTAINING TO THE DISALLOWANCE U /S 40(A)(IA) WERE FURNISHED BEFORE THE LD. AOAND NO INACCURATE PARTICULARS WERE FURNISHED NOR WERE BROUGHT ON RECORD.FURTHER FROM THE PERUSAL OF THE OBSERVATIONS AS CONTAINED IN ASSESSMENT ORDER AT PAGE 22 PARA 13, YOUR HONOURS WOULD APPRECIATE T HE FACT THAT THE ASSESSEE HAS DEDUCTED THE TAX AND THE PROVISIONS OF SECTION 40(A )(IA) WERE INVOKED FOR SHORT DEDUCTION OF TAX AND NOT BY TREATING THE ASSESSEE I N DEFAULT FOR NOT MAKING ANY DEDUCTION OF TAX AT SOURCE THEREFORE, NO PENALTY U/ S 271AAA COULD BE LEVIED ON THE TRADING ADDITION OF RS. 60,000/- MADE ON ESTIMATE B ASIS. WITH REGARD TO THE PENALTY LEVIED ON THE ADDITION O F RS.15,76,693/- ON ACCOUNT OF ALLEGED UNEXPLAINED MARRIAGE EXPENSES AS FOUND N OTED IN THE SEIZED DOCUMENT PAGE NO. 54 OF ANNEXURE A-77, IT IS SUBMITTED THA T THE LD. CIT(A) WHILE CONFIRMING THE PENALTY ON THIS ADDITION HAS MADE AN ERROR OF F ACT THAT THE HONBLE ITAT HAS DELETED THE ADDITION OF RS. 5.00 LACS MADE IN THIS REGARD AND CONFIRMED THE NET ADDITION OF RS. 10,76,694 /- HOWEVER, THE PENALTY W AS CONFIRMED ON THE ADDITION OF RS. 15,76,694/-. THE SAID LOOSE PAPER CONTAINED ENT RIES RELATING TO MARRIAGE EXPENSE OF SHRI MOHITTAK, GRANDSON OF THE ASSESSEE. THE ENT RIES FOUND NOTED IN THE SAID LOOSE PAPERS WERE MERE ESTIMATES AND THERE IS NO ANY CORR OBORATIVE EVIDENCE WAS FOUND TO SUPPORT THE ALLEGATION THAT THESE ARE ACTUAL EXPENS ES RELATED TO MARRIAGE OF ASSESSEES GRANDSON. THE LD. AO WITHOUT MAKING FURTHER ENQUIRY FROM ANY THIRD PARTY SUCH AS THE CATERER OR THE FLOWER DECORATOR TO WHOM THE PAY MENTS STATED TO HAVE BEEN RECORDED IN THE SEIZED PAPERS MERELY ON ASSUMPTION AND PRESU MPTION HAS MADE THE ADDITION ON ESTIMATE BASIS, IN RESPECT OF WHICH THE ASSESSEE HA S NOT FURNISHED ANY INACCURATE PARTICULARS OF INCOME. THE HONBLE ITAT WHILE CONFI RMING THE ADDITION OF RS. 10,76,694/- IN PARA 22 (APB 105) HAS ALSO OBSERVED THAT THE PAPER NOWHERE INDICATES THAT ALL THE EXPENSES OF MARRIAGE WERE BORNE BY THE APPELLANT HIMSELF AND NOT BY ANY OTHER OF THE FAMILY MEMBERS OR THE PARENTS OF THE O THER SIDE I.E. FROM BRIDLE SIDE. NO EFFORT WAS MADE IN PENALTY PROCEEDINGS BY MAKING IN DEPENDENT ENQUIRY THAT THE PAYMENT WAS MADE BY THE ASSESSEE AS IN OUR SOCIETY IT IS GENERAL PRACTICE THAT EXPENSES ON MARRIAGE ARE GENERALLY BORNE BY THE BRI DAL SIDE AND ASSESSEES FAMILY HAD 8 ITA NO. 786(2)/JP/2014 ACIT VS. LAXMI NARAIN TAK. MADE SUFFICIENT WITHDRAWALS TO MEET OUT OTHER PETTY EXPENSES NORMALLY INCURRED BY GROOM SIDE. IT IS THUS SUBMITTED THAT MERELY FOR TH E REASON THAT CERTAIN ADDITIONS STOOD CONFIRMED IN THE APPELLATE PROCEEDINGS DOES NOT EST ABLISHED THAT ASSESSEE HAS FURNISHED ANY INACCURATE PARTICULARS OR HAS CONCEAL ED THE INCOME ELIGIBLE FOR LEVY OF PENALTY U/S 271AAA. IN THE CIRCUMSTANCES, IT IS HUMBLY PRAYED THAT THE PENALTY LEVIED ON THE ADDITIONS OF RS. 11,36,694/- DESERVES TO BE DELETED . IN THE ALTERNATE, IT IS SUBMITTED THAT THE LD. CIT(A) HAS CONFIRMED THE PENALTY ON TH E ADDITIONS OF RS. 16,36,694/- HOWEVER, THE ADDITION OF RS. 5.00 LACS WAS DELETED BY THE HONBLE ITAT, THEREFORE THE PENALTY ON THE ADDITION OF RS. 5.00 LACS BEING DELE TED BY THE HONBLE ITAT DESERVES TO BE DELETED. 6.2. ON THE OTHER HAND, THE LD. D/R OPPOSED THE SUB MISSIONS. 6.3. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. FROM THE RECORD, WE FIND THAT APPEALS I.E. ITA NOS. 262 & 263/JP/2012 AGAINST QUA NTUM ADDITIONS HAVE BEEN DECIDED BY THE COORDINATE BENCH OF THE JAIPUR TRIBU NAL IN ITA NO. 262 & 263/JP/2012 ORDER DATED 23.04.2013 IN FIRST ROUND O F APPEAL BEFORE IT, THEREBY ALLOWING RELIEF OF RS. 11,36,694/- OUT OF TOTAL ADD ITION OF RS. 16,36,694/- (TRADING ADDITION OF RS. 60,000/- AND ON ACCOUNT OF MARRIAGE EXPENSES OF RS. 15,76,694/-). THE COORDINATE BENCH HAS ALREADY GRANTED VARIOUS RE LIEF ON VARIOUS GROUNDS INCLUDING RELIEF OF RS. 5,00,000/- OUT OF MARRIAGE EXPENSES OF RS. 15,76,694/- AND RESTORED THE MATTER TO THE AO ON ACCOUNT OF (1) UNE XPLAINED JEWELLERY AND (2) STOCK TREATED AS EXCESS. AS PER ASSESSMENT OF ADDITION OF RS. 16,36,694/- THE ADDITION OF RS. 5,00,000/- WAS DELETED BY THE TRIBUNAL IN QUANT UM PROCEEDINGS. THIS FACT IS NOT 9 ITA NO. 786(2)/JP/2014 ACIT VS. LAXMI NARAIN TAK. REBUTTED BY THE REVENUE, HENCE IN OUR CONSIDERED VI EW CONFIRMATION OF PENALTY ON THIS AMOUNT IS NOT JUSTIFIED. ACCORDINGLY, THE AO I S HEREBY DIRECTED TO DELETE THE PENALTY. IN RESPECT OF OTHER ADDITIONS, RS. 60,000 /- IS ADDED ON THE BASIS OF ESTIMATION. OTHER ADDITIONS RELATED TO MARRIAGE EXP ENSES. IT IS SUBMITTED THERE IS NOTHING ON RECORD SUGGESTING THAT THE ENTIRE EXPENS ES WERE INCURRED BY THE APPELLANT. HENCE, IT IS NOT JUSTIFIED TO ATTRIBUTE ENTIRE EXPENDITURE TO THE ASSESSEE AND LEVY PENALTY ON SUCH AMOUNT. THE RELIANCE IS PL ACED ON COORDINATE BENCH DECISION RENDERED IN THE CASE OF ACIT (OSD) VS. M/S . KANAKIA SPACES PVT LTD. ITA NO. 6763/MUM/2011 A.Y. 2007-08 WHEREIN THE HONBLE TRIBUNAL HAS HELD AS UNDER :- 3.1. LD. CIT (A) AFTER CONSIDERING THE SUBMISSION DELETE D THE PENALTY BY STATING AS UNDER:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE B Y THE APPELLANT IN RESPECT OF THE PENALTY LEVIED BY THE L D. AO. IT IS SEEN THAT THE LD. AO HAS WRITTEN TWO SENTENCES AT PARA-8 TO CONCLUDE THAT THE APPELLANT HAS NOT BEEN ABLE TO SUBSTANTIAT E THE SOURCE OF ACQUISITION OF THE MOVABLE ASSETS. THE FACT OF T HE MATTER IS THAT THE REQUIREMENT ON THE PART OF AN ASSESSEE TO SUBSTANTIATE THE SOURCE OF INCOME CANNOT BE TAKEN TO MEAN THAT A LL EVIDENCES IN THE RESPECT HAS TO BE PRODUCED. THE VERY FACT TH AT THE DISCLOSURE IS MADE IN RESPECT OF UNDISCLOSED INCOME , ALL THAT CAN BE REQUIRED OF AN ASSESSEE IS THAT THE PROXIMATE NA TURE OF ACQUISITION CAN BE MENTIONED BY HIM. IT CANNOT BE T HE CASE THAT VERY MINUTE DETAIL THEREOF WOULD BE PRESERVE WITH E VIDENCE WHICH IS POSSIBLE ONLY FOR THE REGULAR INCOME BEING DISCLOSED BY HIM. THE REQUIREMENT AS PER SECTION (2) OF SECTION 271AAA IS ONLY THAT THE MANNER OF EARNING INCOME SHOULD BE SP ECIFIED SO THAT UNDUE ADVANTAGE OF TELESCOPING OR SOME OTHER I NCOME BEING BROUGHT WITHIN THE TOTAL AMBIT OF UNDISCLOSED INCOME SURRENDERED DOES NOT HAPPEN. FROM THE ORDER OF THE LD. A.O ALSO, IT IS APPARENT THAT THE PENALTY IS NOT LEVIED BY HIM ON ACCOUNT OF SOME CONVICTION BUT HAS BEEN JUST LEVIED TO COMPLETE THE PROCEEDINGS. IN FACT THERE ARE NO MATERIAL FACT S WARRANTING THE LEVY OF PENALTY AND, ACCORDINGLY, THE PENALTY O F RS.55,00,000/- LEVIED UNDER SECTION 271AAA IS DIREC TED TO BE DELETED. 10 ITA NO. 786(2)/JP/2014 ACIT VS. LAXMI NARAIN TAK. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE DO N OT 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-ORDINATE BEN CHES AND HIGH COURTS PARTICULARLY WITH REFERENCE TO DISCLOSURE MA DE UNDER SECTION 132(4). IN THE CASE OF CIT VS. MAHENDRA C. SHAH (29 9 ITR 305) THE HONBLE GUJARAT HIGH COURT CONSIDERED SIMILAR STATE MENT UNDER SECTION 132(4) TO GRANT IMMUNITY UNDER SECTION 271(1)(C). T HE HONBLE HIGH COURT HELD AS UNDER:- WHEN THE STATEMENT IS BEING RECORDED BY THE AUTHOR IZED OFFICER IT IS INCUMBENT UPON THE AUTHORIZED OFFICER TO EXPL AIN THE PROVISIONS OF EXPLANATION 5 IN ENTIRETY TO THE ASSE SSEE CONCERNED AND THE AUTHORIZED OFFICER CANNOT STOP SH ORT AT A PARTICULAR STAGE SO AS TO PERMIT THE REVENUE TO TAK E ADVANTAGE OF SUCH A LAPSE IN THE STATEMENT. THE REASON IS NOT FAR TO SEEK. IN THE FIRST INSTANCE, THE STATEMENT IS BEING RECOR DED IN THE QUESTION AND ANSWER FORM AND THERE WOULD BE NO OCCA SION FOR AN ASSESSEE TO STATE AND MAKE AVERMENTS IN THE EXAC T FORMAT STIPULATED BY THE PROVISIONS CONSIDERING THE SETTIN G IN WHICH SUCH STATEMENT IS BEING RECORDED. SECONDLY, CONSIDE RING THE SOCIAL ENVIRONMENT IT IS NOT POSSIBLE TO EXPECT FRO M AN ASSESSEE, WHETHER LITERATE OR ILLITERATE, TO BE SPECIFIC AND TO THE POINT REGARDING THE CONDITIONS STIPULATED IN THE SECOND E XCEPTION 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 TAX THEREON PAID, THERE WOULD BE SUBSTANTIAL COMPLIANCE NOT WARRANTING ANY FURTHER D ENIAL 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 INITIATE PENA LTY PROCEEDINGS. THE ASSESSEE WAS NOT ASKED ABOUT THE MANNER IN WHICH SU CH INCOME WAS EARNED AND ALSO TO SUBSTANTIATE THE MANNER IN WHICH UNDISCLOSED INCOME WAS DERIVED. THE PROVISION OF CLAUSE-2 OF EX PLANATION-V APPENDED TO SECTION 271(1)(C) ARE SIMILAR TO SECTIO N 271AAA(2). THE SCOPE AND MEANING HAS BEEN LUCIDLY EXPLAINED BY THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RADHA K ISHAN GOEL (2005) 278 ITR 454 (ALL.), WHICH WAS FOLLOWED BY THE HONB LE GUJARAT HIGH COURT IN THE ABOVE REFERRED CASE. IN VIEW OF THE AB OVE PRINCIPLES LAID DOWN, WE ARE OF THE OPINION THAT IMMUNITY PROVIDED UNDER S/S. (2) OF SECTION 271AAA IS APPLICABLE AND ACCORDINGLY, THE O RDER OF CIT(A) DOES NOT REQUIRE ANY MODIFICATION. REVENUES GROUNDS ARE REJECTED. 11 ITA NO. 786(2)/JP/2014 ACIT VS. LAXMI NARAIN TAK. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF C O-ORDINATE BENCH, WE HEREBY DIRECT THE AO TO DELETE PENALTY OF RS. 1,63,669/- AS SUSTA INED BY THE LD. CIT (A). THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. 7. IN THE RESULT, APPEALS OF THE REVENUE AS WELL AS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/08/2016 . SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 09/08/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ACIT, CENTRAL CIRCLE-3, JAIP UR. 2. THE RESPONDENT- SMT. PRABHA, L/H SHRI LAXMI NARA YAN TAK, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 786(2)/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR