SHRI PEEYUSH SOMANI, JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, JAIPUR

ITA 823/JPR/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6327 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 07-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEEMA MEENA JCIT DHK
• Keywords: Search and seizure; Principle of natural justice
• Section: 142(1); 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 FOT; IKY JKWO] U;KF;D LNL; ,O A JH HKKXPUN ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 822/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13. SHRI SANJAY SOMANI, A-25, SUBHASH NAGAR, JAIPUR. CUKE VS. THE DCIT, CENTRAL CIRCLE-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHUPS 9543 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 823/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13. SHRI PEEYUSH SOMANI, A-25, SUBHASH NAGAR, JAIPUR. CUKE VS. THE DCIT, CENTRAL CIRCLE-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AZIPS 7028 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 825/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13. SHRI SAMEER SOMANI, A-25, SUBHASH NAGAR, JAIPUR. CUKE VS. THE DCIT, CENTRAL CIRCLE-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHXPS 8637 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. SEEMA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02.07.2018. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 20/07/2018. 2 ITA NOS. 822, 823 & 825/JP/2017 SHRI SANJAY SOMANI, SHRI PEEYUSH SOMANI AND SHRI SA MEER SOMANI. VKNS'K@ ORDER PER BENCH : THESE THREE APPEALS BY THREE INDIVIDUAL ASSESSES W HO ARE FAMILY MEMBERS ARE DIRECTED AGAINST THREE SEPARATE ORDERS OF LD. CIT ( A)-4, JAIPUR DATED 23.08.2017 AND 05.09.2017 ARISE FROM THE PENALTY ORDERS PASSED UND ER SECTION 271AAA OF THE I.T. ACT FOR THE ASSESSMENT YEAR 2012-13. THE ISSUE RAI SED IN THESE APPEALS IS IDENTICAL AND COMMON AND ALSO ARISING FROM THE SAME FACTS AS WELL AS THE SEARCH AND SEIZURE ACTION. THEREFORE, FOR THE PURPOSE OF RECORDING FA CTS, THE APPEAL IN ITA NO. 822/JP/2017 IS TAKEN AS LEAD CASE WHEREIN THE ASSES SEE HAS RAISED THE FOLLOWING GROUNDS :- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LEARNED CIT (A)-4, JAIPUR HAS GROSSLY ERRED IN NOT ALLOWING THE ASSESSEE TO REPRESENT ITS CASE BEFORE HIM BY IGNORING THE PRINC IPLES OF NATURAL JUSTICE AND THEREFORE MAKING EX PARTY ORDER OF CONFIRMATION OF ORDER PASSED BY LEARNED AO. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A)-4, JAIPUR HAS GROSSLY ERRED IN LAW AS WELL AS F ACTS IN CONFIRMING THE ORDER PASSED BY THE LD. DCIT, CENTRA L CIRCLE-1, JAIPUR OF IMPOSING PENALTY OF RS. 2,00,000/- U/S 27 1AAA OF THE INCOME TAX ACT, 1961 ON TOTAL ADDITIONAL INCOME OF RS. 20,00,000 ADMITTED DURING THE COURSE OF SEARCH PROC EEDINGS, BY WRONGLY ALLEGING THAT THE ASSESSEE HAS NEITHER SPEC IFIED NOR SUBSTANTIATED THE MANNER IN WHICH INCOME HAS BEEN D ERIVED, AND THEREFORE HE IS LIABLE FOR PENALTY U/S 271AAA O F THE I.T. ACT, 1961 ON SUCH DISCLOSED INCOME IN THE RETURN THOUGH IT IS PART OF RETURNED INCOME. 3. THE ABOVE PENALTY LEVIED BY THE LEARNED ASSESSIN G OFFICER IS QUITE ILLEGAL ARBITRARY, EXCESSIVE WITHOUT ANY BASI S AND BASED ON GUESS, CONJECTURE AND SURMISES. 3 ITA NOS. 822, 823 & 825/JP/2017 SHRI SANJAY SOMANI, SHRI PEEYUSH SOMANI AND SHRI SA MEER SOMANI. 4. THAT THE APPELLANT ASSESSEE CRAVES FOR A LEAVE T O ADD, ALTER AND AMEND ANY GROUNDS OF APPEAL AT THE TIME OF APPELLAT E HEARING. 2. THERE WAS A SEARCH AND SEIZURE OPERATION UNDER S ECTION 132 OF THE IT ACT ON 31.01.2012 IN CASE OF SOMANI GROUP TO WHICH THE ASS ESSES BELONG TO. DURING THE SEARCH AND SEIZURE ACTION, STATEMENT OF SHRI SAMEER SOMANI WAS RECORDED UNDER SECTION 132(4) IN WHICH HE OFFERED RS. 5 CRORES AS UNDISCLOSED INCOME OF THE SOMANI GROUP, AFTER CONSULTING WITH ALL THE PARTNERS INCLU DING THE ASSESSES BEFORE US. THEREAFTER, VIDE LETTER DATED 24 TH FEBRUARY, 2012 THE ASSESSES GIVEN THE DETAILS OF BIFURCATION OF UNDISCLOSED INCOME OF RS. 5 CRORES A ND OUT OF WHICH RS. 2.41 CRORES WAS OFFERED IN THE CASE OF M/S. ADITYA TELELINK PVT . LTD., RS. 1.5 CRORES IN THE CASE OF M/S. REDD COMMUNICATION INDIA PVT. LTD. AND BALANCE OF RS. 79 LACS WAS SHARED AMONGST THE DIFFERENT INDIVIDUALS OF THE FAMILY. T HE ASSESSES BEFORE US HAVE OWNED UP AND OFFERED TO TAX RS. 20 LACS EACH AS UNDISCLOS ED INCOME. THE ASSESSEES FILED RETURNS OF INCOME AND OFFERED THE UNDISCLOSED INCOM E OF RS. 20 LACS EACH. THE AO ACCEPTED THE INCOME SO DECLARED AND OFFERED TO TAX BY THE ASSESSEE. HOWEVER, THE AO OBSERVED THAT THE ASSESSES HAVE NEITHER EXPLAINE D THE MANNER OF EARNING OF INCOME NOR HAVE SUBSTANTIATED THE SAME AND, THEREFO RE, PENALTY PROCEEDINGS UNDER SECTION 271AAA WERE INITIATED AGAINST THESE THREE A SSESSES. THE AO ACCORDINGLY ISSUED A SHOW CAUSE NOTICE DATED 19.08.2014 UNDER S ECTION 271AAA READ WITH SECTION 274 OF THE ACT TO WHICH THE ASSESSEE FILED REPLY DATED 28.08.2014. THE ASSESSEE CONTENDED THAT WHEN THE ASSESSEE HAS COMPL IED WITH ALL THE CONDITIONS PROVIDED UNDER SECTION 271AAA, THEN NO PENALTY IS L EVIABLE ON THE AMOUNT WHICH WAS OFFERED TO TAX. THE AO DID NOT ACCEPT THE CONT ENTION OF THE ASSESSEE AND LEVIED THE PENALTY OF RS. 2,00,000/- EACH BEING 10% OF THE UNDISCLOSED INCOME OF EACH 4 ITA NOS. 822, 823 & 825/JP/2017 SHRI SANJAY SOMANI, SHRI PEEYUSH SOMANI AND SHRI SA MEER SOMANI. ASSESSEE. THE ASSESSEE CHALLENGED THE LEVY OF PENA LTY BEFORE THE LD. CIT (A). THE APPEALS FILED BY THE ASSESSES WERE DISMISSED EX PAR TE. 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE PROVISIONS OF SECTION 271AAA GRANTS IMMUNITY TO THE ASSESSEE WHO SATISFIES THE CONDITIONS THAT HE ADMITS UNDISCLOSED INCOME IN THE STATEMENT UNDER SE CTION 132(4) AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED. FURTH ER, THE ASSESSEE SUBSTANTIATED THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERI VED AND PAID THE TAX TOGETHER WITH INTEREST IN RESPECT OF THE UNDISCLOSED INCOME. SINCE THE ASSESSEE COMPLIED WITH THE REQUIRED CONDITIONS AND, THEREFORE, THE PENALTY UNDER SECTION 271AAA CANNOT BE LEVIED IN THE CASES OF ASSESSES. HE HAS FURTHER SU BMITTED THAT IN THE STATEMENT RECORDED UNDER SECTION 132(4) ON 1 ST FEBRUARY, 2012 SHRI SAMEER SOMANI ADMITTED UNDISCLOSED INCOME OF RS. 5 CRORES FOR THE ENTIRE G ROUP AND THEREAFTER VIDE LETTER DATED 24 TH FEBRUARY, 2012 THE UNDISCLOSED INCOME WAS DIVIDED AMONGST THE PARTNERS INCLUDING THE THREE ASSESSES IN THESE APPEALS WHO H AVE OFFERED RS. 20 LACS EACH TO TAX. THE LD. A/R HAS FURTHER CONTENDED THAT THE AO HAS LEVIED THE PENALTY ON THE GROUND THAT THE ASSESSEE HAS NOT SPECIFIED THE MANN ER IN WHICH UNDISCLOSED INCOME WAS DERIVED AND, THEREFORE, WHEN THE ASSESSEE FAILE D TO SUBSTANTIATE THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED, THE AO HA S LEVIED THE PENALTY @ 10% OF UNDISCLOSED INCOME IN EACH CASE. THE LD. A/R HAS C ONTENDED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED L ETTER DATED 14.3.2014 AND EXPLAINED THE MANNER IN WHICH UNDISCLOSED INCOME WA S DERIVED. THEREFORE, THE REQUIREMENT OF SPECIFYING THE MANNER IN WHICH UNDIS CLOSED INCOME WAS DERIVED WAS SATISFIED WHEN THE ASSESSEE EXPLAINED THE SAME VIDE LETTER DATED 14.03.2014. THE LD. A/R HAS FURTHER CONTENDED THAT THERE IS NO SPEC IFIC FORMAT OR PROCEDURE 5 ITA NOS. 822, 823 & 825/JP/2017 SHRI SANJAY SOMANI, SHRI PEEYUSH SOMANI AND SHRI SA MEER SOMANI. PRESCRIBED UNDER THE ACT FOR SUBSTANTIATION OF MANN ER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED. HENCE THE EXPLANATION OF THE A SSESSEE IN THE LETTER DATED 14.03.2014 SATISFIED THE REQUIREMENT OF THE PROVISI ONS. HE HAS POINTED OUT THAT THE ASSESSEE HAS ADMITTED THAT HE HAS ENTERED INTO TRAN SACTIONS OF LAND/PROPERTY AND EARNED THE COMMISSION AND BROKERAGE INCOME AND INCO ME ARISING FROM THE SAME IS DECLARED IN THE RETURN. THUS THE ASSESSEE EXPLAINE D THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS EARNED AND ALSO SUBSTANTIATE D THE SAME AND HENCE THE CONDITIONS REQUIRED FOR GRANT OF IMMUNITY OF PENALT Y UNDER SECTION 271AAA HAS BEEN SATISFIED. IN SUPPORT OF HIS CONTENTION, HE HAS RE LIED UPON THE DECISION OF HONBLE GUJARAT HIGH COURT IN CASE OF PRINCIPAL CIT VS. SWA PNA ENTERPRISE, 401 ITR 488 (GUJ.) AS WELL AS THE DECISION OF THE DELHI BENCHES OF THE TRIBUNAL IN THE CASE OF SITA RAM GUPTA VS. ACIT, 151 ITD 449 (TRIB.)(DEL.). HEN CE, THE LD. A/R HAS SUBMITTED THAT THE CONDITION OF SPECIFYING THE MANNER IN WHIC H UNDISCLOSED INCOME WAS DERIVED STOOD DULY SATISFIED BY THE ASSESSEE BEFORE THE AUT HORITIES BELOW AND, THEREFORE, THE PENALTY LEVIED UNDER SECTION 271AAA MAY BE DELETED/ CANCELLED. 4. ON THE OTHER HAND, THE LD. D/R HAS RELIED UPON T HE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE AO WHILE PASSING THE P ENALTY ORDER UNDER SECTION 271AAA HAS CLEARLY STATED THAT THE ASSESSEE FAILED TO SUBSTANTIATE THE MANNER OF EARNING THE UNDISCLOSED INCOME. THE LD. D/R HAS FU RTHER SUBMITTED THAT THE AO HAS CLEARLY POINTED OUT THAT NO RETURN WAS FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION WITHIN THE TIME PRESCRIBED UNDER SECT ION 139(1) OF THE ACT AND, THEREFORE, A NOTICE UNDER SECTION 142(1) WAS ISSUE D ON 30 TH OCTOBER, 2012 FOR FILING THE RETURN. IN COMPLIANCE TO THIS NOTICE, THE ASSE SSEE FILED HIS RETURN OF INCOME ON 31.12.2012 DECLARING TOTAL INCOME WHICH INCLUDED UN DISCLOSED INCOME DECLARED 6 ITA NOS. 822, 823 & 825/JP/2017 SHRI SANJAY SOMANI, SHRI PEEYUSH SOMANI AND SHRI SA MEER SOMANI. DURING THE SEARCH AND SEIZURE ACTION. HOWEVER, THE ASSESSEE COULD NOT EXPLAIN THE MANNER OF EARNING THE ADDITIONAL UNDISCLOSED INCOME NOR COULD SUBSTANTIATE THE MANNER OF EARNING. THEREFORE, THE PENALTY UNDER SE CTION 271AAA IS LEVIABLE WHEN THE ASSESSEE HAS FAILED TO COMPLY WITH THE CONDITIO NS. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE SOLE GROUND FOR LEVY OF PENALTY UNDER SECTION 271AAA IS NON SUBSTANTIATION OF MANNER OF EARNING THE INCOME WHIC H WAS SURRENDERED BY THE ASSESSEE. IT IS PERTINENT TO NOTE THAT THE UNDISCL OSED INCOME OF RS. 5 CRORES WAS DISCLOSED IN THE STATEMENT UNDER SECTION 132(4) BY ONE SHRI SAMEER SOMANI WHO IS ALSO FAMILY MEMBER OF THE ASSESSEE AND REPRESENTING THE ENTIRE GROUP. THE RELEVANT PART OF THE STATEMENT HAS BEEN PRODUCED BY THE AO I N THE PENALTY ORDER AT PAGE 3 AS UNDER :- IZ'U 32 VKT VKIDS VKOKLH; HKOU ,&25] LQHKKK UXJ] T;IQJ IJ FNUAKD 31-01-2012 LS 01-02-2012 RD RYK'KH DH DK;ZOK GH DH XBZ BL HKOU ESA VKI LO;A] VKIDS CM+S HKKBZ JH LAT; LKSEKUH ] VKIDH EKRK JHERH LJYK LKSEKUH] VKIDS PKPK JH T; DQEKJ LKSEKUH ,OA MU DS IQ= JH FI;QK LKSEKUH VIUS&VIUS IFJOKJ DS LKFK FOFHKUU RYK SA IJ JGRS GSAA RYK'KH DK;ZOKGH DS NKSJKU VKIDS FUOKL LFKKU DS VYKO K VKIDH QEKSZ@DEIUH DS DK;KZY;KSA IJ HKH RYK'KH O LOSZ DH D K;ZOKGH HKH DH XBZA BL NKSJKU VKIDS VKWFQL DK;KZY;KSA O FUOKL LFKK U IJ FOFHKUU DKXTKR IK, O TCR FD, X, GSAA VKIUS TCR DKXTKRKSA DK LR;KIU VIUH CGH [KKRKSA O YS[KK IQLRDKSA LS LR;KIU UGHA DJ K;K X;KA BU IK;S O TCR FD, X;S DKXTKRKSA DS VK/KKJ IJ VKIDS O VKIDS IFJOKJ DS VU; LNL;KSA ,OA VKIDH IKFJOKFJD QEKSZA VKSJ DEIFU;KSA E SA V?KKSFKR VK; O FUOS'K DH LEHKKOUK CURH GSA BL LECU/K ESA VKI D;K D GUK PKGRS GSA MKJ : LPZ DH DK;ZOKGH DS NKSJKU GEKJS FUOKL ,OA GEKJH D EIFU;KSA O QEKSZA DS DK;KZY;KSA IJ LS FOFHKUU DKXTKR IK, O TCR FD, X, GSA ESA O ESJS IFJOKJ DS VU; LNL; BU DKXTKRKSA ESA BUNZKT IZF RFB;KSA DK LR;KIU 7 ITA NOS. 822, 823 & 825/JP/2017 SHRI SANJAY SOMANI, SHRI PEEYUSH SOMANI AND SHRI SA MEER SOMANI. CGH [KKRKSA O YS[KK IQLRDKSA LS UGHA DJOK LDS GSA B L LECU/K ESA ESUSA JH LAT; LKSEKUH] T; DQEKJ LKSEKUH] FI;QK LKSEKUH DS F OPKJ FOE'KZ DJUS DS CKN GE LHKH BL URHTS IJ IGQAPS GSA FD GEKJH QEKSZ O DEIFU;KSA ESA :I;S IKWAP DJKSM+ DH V?KKSFKR VK; LOHDKJ DJRS GQ, VK;DJ DS FY, LEFIZR DJRS GSAA BL V?KKSFKR VK; IJ GE NS; VK;DJ FU;EKUQL KJ PQDK NSAXSA GEKJH FDU QEKSZ@DEIFU;KSA DH V?KKSFKR VK; GSA BLDK IW.KZ FOOJ.K GEKJH DEIFU;KSA O QEKSZA DS DK;KZY;KSA ESA IK, O TC R FD, X, DKXTKRKSA@YS[KKSA IQLRDKSA DS LR;KIU DS CKN VKIDS D K;KZY; ESA IZLRQR DJ NSAXSA THUS AS PER THE STATEMENT RECORDED UNDER SECTION 13 2(4) THE TOTAL AMOUNT OF RS. 5.00 CRORES WAS DISCLOSED AS UNDISCLOSED INCOME FOR THE ENTIRE GROUP WHICH WAS SUBSEQUENTLY DISTRIBUTED AMONGST VARIOUS PARTNERS W HICH INCLUDES TWO CORPORATE ENTITIES AND FOUR INDIVIDUALS. HOWEVER, OUT OF RS. 5 CRORES, RS. 79 LACS WAS SHARED BY FOUR INDIVIDUALS AND THE ASSESSEES BEFORE US HAV E OWNED UP RS. 20 LACS EACH FROM THE UNDISCLOSED INCOME. THUS THE MAJOR PART O F THE UNDISCLOSED INCOME WAS OWNED UP BY TWO CORPORATE ENTITIES VIZ. M/S. ADITYA TELELINK PVT. LTD AND M/S. REDD COMMUNICATION INDIA PVT. LTD. IT IS ALSO CLEAR THA T AT THE TIME OF STATEMENT THE MANNER OF EARNING THE UNDISCLOSED INCOME WAS NOT SU BSTANTIATED NOR IT WAS EXPLAINED THOUGH IT MAY BE REFLECTED FROM THE SEIZE D MATERIAL ITSELF. HOWEVER, FROM THE STATEMENT RECORDED UNDER SECTION 132(4) IT IS N OT CLEAR AS TO HOW THE UNDISCLOSED INCOME WAS EARNED BY THE GROUP AS A WHO LE. SUBSEQUENTLY, VIDE LETTER DATED 24 TH FEBRUARY, 2012 THE ASSESSEE GROUP HAS BIFURCATED T HE UNDISCLOSED INCOME AMONGST VARIOUS PARTNERS AND RS. 79 LACS WAS OWNED UP BY FOUR INDIVIDUALS WHO ARE FAMILY MEMBERS INCLUDING THE THREE ASSESSES BEFORE US. THE RELEVANT PART DISCLOSING RS. 79 LACS IN THE HANDS OF INDIVIDUALS IN THE LETT ER DATED 24 TH FEBRUARY, 2012 IS AS UNDER :- 8 ITA NOS. 822, 823 & 825/JP/2017 SHRI SANJAY SOMANI, SHRI PEEYUSH SOMANI AND SHRI SA MEER SOMANI. (C) DISCLOSURE OF ADDITIONAL INCOME OF RS. 79,00, 000/-. THE BREAK UP OF ADDITIONAL INCOME OF RS. 79.00 LACS AMONGST DIFFERENT ASSESSES OF OUR FAMILY AND BUSINESS CONCERN, THE MA NNER OF EARNING THE ADDITIONAL INCOME DISCLOSED WILL BE SUBMITTED S UBSEQUENTLY ON DETAILED SCRUTINY FOTHE SEIZED MATERIAL/RECORDS AND /OR POST SEARCH INQUIRY CARRIED OUT BY THE DEPARTMENT EITHER BEFORE /AT THE TIME OF FILING OF RETURN OF INCOME AND/OR IN THE ASSESSMENT PROCEE DINGS BY CLAIMING THE TELESCOPING EFFECT AGAINST ANY PROPOSED ADDITIO N THAT MAY BE PROPOSED TO BE MADE BY THE A.O. IN THE ASSESSMENT P ROCEEDINGS ON THE BASIS OF SEIZED MATERIAL/RECORDS AS WELL AS IN RESPECT OF GOLD ORNAMENTS AND JEWELLERY FOUND DURING THE COURSE OF SEARCH PROCEEDINGS IN RESPECT OF WHICH THE EXPLANATION OFF ERED BY THE ASSESSEE IS NOT ACCEPTABLE TO THE ASSESSING OFFICER . THEREFORE, IT IS APPARENT FROM THE SAID LETTER THAT THERE WAS NO EXPLANATION OR SUBSTANTIATION OF THE MANNER IN WHICH UNDISCLOSED I NCOME WAS DERIVED BY THE INDIVIDUALS. THE ASSESSEE HAS CONTENDED THAT DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS VIDE LETTER DATED 14.03.2014 THE ASSESS EE HAS SUBSTANTIATED THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED. HOWEV ER, WE FIND THAT THE SAID LETTER ALSO DOES NOT DISCLOSE ANY SPECIFIC MANNER BUT A ST AND WAS TAKEN BY THE ASSESSEE THAT IT WAS A VOLUNTARY DISCLOSURE OF TOTAL AMOUNT OF RS. 5 CRORES PERTAINING TO THE ASSESSEE AS WELL AS DIFFERENT MEMBERS OF THE FAMILY AND CONCERNS/FIRMS/COMPANIES. THE REFERENCE WAS ALSO MADE TO THE LETTER DATED 24. 02.2012. THUS IT IS CLEAR THAT SO FAR AS THE INDIVIDUAL ASSESSES ARE CONCERNED, THERE IS NO SEPARATE OR SPECIFIC SUBSTANTIATION OF THE MANNER IN WHICH THE UNDISCLOS ED INCOME WAS EARNED. HOWEVER, SINCE THE DISCLOSURE WAS MADE AS A CONSOLI DATED AMOUNT OF RS. 5 CRORES 9 ITA NOS. 822, 823 & 825/JP/2017 SHRI SANJAY SOMANI, SHRI PEEYUSH SOMANI AND SHRI SA MEER SOMANI. ON BEHALF OF THE GROUP, THEN IF THE SUBSTANTIATION OF MANNER IN WHICH THE UNDISCLOSED INCOME WAS EARNED BY THE GROUP WAS SATISFIED IN CAS E OF THE CORPORATE ENTITIES WHO OWNED UP THE MAJOR SHARE OF THE UNDISCLOSED INCOME, THEN THE OUT-COME OF THE PROCEEDINGS IN THE CASE OF TWO COMPANIES, NAMELY, M /S. ADITYA TELELINK PVT. LTD. AND M/S. REDD COMMUNICATION INDIA PVT. LTD. SHALL HAVE A DIRECT BEARING ON THE QUESTION OF LEVY OF PENALTY UNDER SECTION 271AAA OF THE ACT IN THE HANDS OF THE INDIVIDUAL ASSESSES. SINCE NEITHER THE ASSESSEE NOR THE DEPART MENT HAS BROUGHT BEFORE US ANY RECORD OR MATERIAL ABOUT THE STATUS OF THE PENALTY PROCEEDINGS IN CASE OF THESE TWO COMPANIES, NAMELY, M/S. ADITYA TELELINK PVT. LTD. A ND M/S. REDD COMMUNICATION INDIA PVT. LTD., THEREFORE, IN THE FACTS AND CIRCUM STANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE MATTER NEEDS A RECONSIDERA TION AT THE LEVEL OF THE AO AND AS PER THE OUT-COME OF THE PENALTY PROCEEDINGS, IF ANY, IN THE CASES OF M/S. ADITYA TELELINK PVT. LTD. AND M/S. REDD COMMUNICATION INDI A PVT. LTD. HENCE, WE SET ASIDE THE MATTER TO THE RECORD OF THE AO TO RECONSIDER TH E LEVY OF PENALTY IN THE LIGHT OF OUT-COME OF THE PENALTY PROCEEDINGS IN THE CASE OF TWO COMPANIES. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN AN OPPORTUNITY OF HEARING BEF ORE PASSING THE FRESH ORDER. 6. IN THE RESULT, APPEALS OF THE ASSESSES ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/07/2018 . SD/- SD/- HKKXPUN FOT; IKY JKWO (BHAGCHAND) ( VIJAY PAL RAO ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20/07/2018. DAS/ 10 ITA NOS. 822, 823 & 825/JP/2017 SHRI SANJAY SOMANI, SHRI PEEYUSH SOMANI AND SHRI SA MEER SOMANI. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-SHRI SANJAY SOMANI, SHRI PEEYUSH SOMA NI AND SHRI SAMEER SOMANI, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT-THE DCIT, CENTRAL CIRCLE-1, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 822, 823 & 825/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR