The DCIT, Central Circle-1, Surat V. Shri Praful A.Shah, Surat

ITA 974/AHD/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9844 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 17-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SITA RAM MEENA
• Assessee Lawyers: M J SHAH; J P SAHAH
• Keywords: Unexplained expenditure; Gift; Income from undisclosed sources; Document seized; Documents seized
• Section: 143(3); 153A; 27; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NOS.974 & 975/AHD/2012 WITH C.O. NOS. 113 & 114 /AHD/2012 (ASSESSMENT YEARS:2008-09 & 2009-10) THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, SURAT APPELLANT VS. PRAFUL A SHAH GARDEN MILLS COMPOUND, SAHARA DARWAJA, RING ROAD, SURAT - 395003 RESPONDENT / CROSS OBJECTOR PAN: AHHPS2727C / BY REVENUE : SHRI SITA RAM MEENA, SR. D.R. /BY ASSESSEE : SHRI J. P. SAHAH & M. J. SHAH, A.R. /DATE OF HEARING : 17.11.2016 /DATE OF PRONOUNCEMENT : 22.11.2016 ORDER PER S. S. GODARA, JUDICIAL MEMBER THESE TWO REVENUES APPEALS AND ASSESSEES CROSS OB JECTIONS THEREIN FOR A.YS. 2008-09 & 2009-10, ARISE AGAINST SEPARATE ORD ER OF CIT(A)-II, AHMEDABADS COMMON ORDER DATED 20.03.2012 IN APPEAL NOS. CIT(A)- II/CC.1/101 & 102/2011-12; RESPECTIVELY, IN PROCEED INGS UNDER SECTION 271AAA OF THE INCOME TAX ACT, 1961; IN SHORT THE A CT. ITA NOS.974 & 975/AHD/2012 & C.O. NOS. 113 & 114/AH D/2012 (DCIT VS. PRAFUL A SHAH) A.YS. 2008-09 & 2009-10 - 2 - 2. WE COME TO RIVAL PLEADINGS. THE REVENUES IDENT ICAL GROUND IN ITS BOTH APPEALS SEEKS TO REVIVE THE IMPUGNED SECTION 271AAA PENALTIES AS IMPOSED BY THE ASSESSING OFFICER IN HIS ORDERS DATED 21.06.201 1 TO THE TUNE OF RS.15LACS AND RS.12,50,000/-; RESPECTIVELY. THE ASSESSEES C ROSS OBJECTIONS AVER THAT THE CIT(A) HAS ERRED IN CONFIRMING THE IMPUGNED PENALTI ES IN THE TWO IMPUGNED ASSESSMENT YEARS TO THE TUNE OF RS.36,128/- AND RS. 19,190/-; RESPECTIVELY. 3. WE FIRST COME TO REVENUES APPEAL. THE DEPARTME NT HAD CARRIED OUT THE IMPUGNED SEARCH IN ASSESSEES CASE ON 12.06.2008. HE APPEARS TO HAVE DISCLOSED INCOME OF RS.1.5CRORES AND 1.25 CRORES; R ESPECTIVELY IN COURSE THEREOF. THE ASSESSEE WOULD INCLUDE THE SAME IN HIS RETURNS. THE SAME STOOD ACCEPTED. THE ASSESSING OFFICER FRAMED ASSESSMENTS U/S.153A R .W.S. 143(3) OF THE ACT ASSESSING THE ABOVE INCOMES IN THE TWO ASSESSMENT Y EARS. HE HOWEVER INITIATED THE IMPUGNED PENALTY PROCEEDINGS U/S.271AAA OF THE ACT IN BOTH ASSESSMENT YEARS. 4. WE NOW ADVERT TO ASSESSEES REPLY IN THE PENALTY PROCEEDINGS IN QUESTION. HE STRONGLY OBJECTED ASSESSING OFFICERS PROPOSAL F OR THE REASON THAT HE HAD COMPLIED WITH ALL NECESSARY CONDITIONS U/S.271AAA(I II) OF THE ACT I.E. MANNER OF HAVING DERIVED THE ABOVE INCOME FOLLOWED BY SUBS TANTIATION THEREOF ALONG WITH PAYMENT OF ALL TAXES AND INTEREST. THE ASSESS ING OFFICER OBSERVED IN HIS PENALTY ORDER THAT THE ASSESSEES ACT AND CONDUCT I N DECLARING THE ABOVE ADDITIONAL INCOME NEITHER DESCRIBED THE MANNER OF H AVING DERIVED THE SAME NOR ANY SUBSTANTIATION HAD COME FROM HIS END IN SUPPORT OF THE STATEMENT. HE ACCORDINGLY LEVIED THE IMPUGNED PENALTIES OF RS.15L ACS AND RS.12,50,000/-; RESPECTIVELY. 5. THE ASSESSEE PREFERRED SEPARATE APPEALS. THE CI T(A) PARTLY ACCEPTS THE SAME AS FOLLOWS: 5. I HAVE CONSIDERED THE FACTS OF THE CASE MENTION ED BY THE ASSESSING OFFICER, THE BASIS OF LEVY OF PENALTY, THE SUBMISSIONS MADE BY T HE LD. ARS ON BEHALF OF THE ITA NOS.974 & 975/AHD/2012 & C.O. NOS. 113 & 114/AH D/2012 (DCIT VS. PRAFUL A SHAH) A.YS. 2008-09 & 2009-10 - 3 - APPELLANT AND THE CASE LAWS RELIED UPON. THE APPEL LANT HAS FILED THE RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 ON 15/04/2009 AND FOR A SSESSMENT YEAR 2009-10 ON 30/09/2009 SHOWING ADDITIONAL INCOME OF RS. 1,50,00 ,000/- AND RS.1,25,00,000/- RESPECTIVELY ON WHICH LD ASSESSING OFFICER HAS LEVI ED PENALTY U/S 271AAA OF THE ACT FOR RS L5,00,000/- IN A.Y. 2008-2009 AND RS 12,50,0 00/- IN A.Y. 2009-2010 MAINLY ON THE GROUND THAT THE GOLD ORNAMENTS AND SILVER UTENS ILS VALUED AT RS 5,53,176/- (RS.3,61,276/- IN A.Y: 2008-2009 AND RS 1,91,900/- IN A.Y. 2009-2010), FOUND DURING SEARCH WERE UNACCOUNTED AND NOT DISCLOSED IN THE BO OKS OF ACCOUNTS AND THE APPELLANT'S CASE DOES NOT FALL IN EXCEPTION CRITERI A PROVIDED U/S 271AAA(2) OF THE ACT AS WELL SUCH AMOUNT DISCLOSED IN THE RETURN OF INCO ME IS UNDISCLOSED INCOME OF THE APPELLANT. ON CAREFUL CONSIDERATION OF THE ENTIRE FACTS OF THE APPELLANT'S CASE, IT IS AN UNDISPUTED FACT THAT THE SEARCH WAS CONDUCTED AT THE APPELLANT 'S PREMISES ON 12/06/2008 AND IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT, THE A PPELLANT HAS NOT MADE ANY DISCLOSURE OF UNACCOUNTED INCOME BUT ADDITIONAL INC OME HAS BEEN OFFERED TO TAX IN THE RETURN OF INCOME FILED FOR THE PRESENT ASSESSMENT Y EARS. THE APPELLANT HAS CLAIMED THAT THE ADDITIONAL INCOME SHOWN IN THE RETURN OF I NCOME FILLED FOR BOTH THE ASSESSMENT YEARS IS NOT WITH REFERENCE TO ANY UNACC OUNTED VALUABLES/ ASSETS/EXPENDITURE ETC BASED ON THE SEIZED, DOCUMEN TS FOUND DURING THE COURSE OF SEARCH OR REPRESENTS UNDISCLOSED INCOME BUT WAS SHO WN IN THE RETURN OF INCOME TO COVER UP ANY IRREGULARITIES OR DISCREPANCIES THAT M AY BE FOUND FOR WHICH THE APPELLANT MAY NOT BE ABLE TO PROVIDE EVIDENCE TO TH E FULLEST SATISFACTION OF THE ASSESSING OFFICER. ALONG WITH THE STATEMENT OF COMP UTATION OF TOTAL INCOME, THE APPELLANT HAS APPENDED NOTE CONTAINING AFORESAID NA TURE OF ADDITIONAL INCOME SHOWN IN THE RETURN OF INCOME. IT IS FURTHER SUBMITTED TH AT IN THE CASE OF THE APPELLANT, THE ASSESSMENT ORDERS U/S 143(3) R.W.S 153A OF THE ACT FOR BOTH THE ASSESSMENT YEARS INVOLVED HAD BEEN PASSED ON 31/12/2010 WHEREIN TOTA L INCOME SHOWN IN THE RETURN OF INCOME FILED BY THE APPELLANT HAD BEEN ACCEPTED AFT ER MAKING ADDITION OF RS.29,500/- IN A.Y. 2008-2009 AND RS 29,45,000/- FOR UNEXPLAINE D INVESTMENT IN THE PAINTING PURCHASED FOR WHICH SEPARATE PENALTY PROCEEDINGS U/ S 271(1)(C) ARE INITIATED AND PENALTY U/S 271 AAA WAS INITIATED FOR ADDITIONAL IN COME SHOWN IN THE. RETURN OF INCOME IN BOTH ASSESSMENT YEARS SEPARATELY. THE PRO VISIONS OF SECTION 271 AAA READS AS UNDER: 'PENALTY WHERE SEARCH HAS BEEN INITIATED. 271AAA. (1) THE ASSESSING OFFICER MAY, NOTWITHSTAND ING ANYTHING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, I N A CASE WHERE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE 1S T DAY OF JUNE, 2007, THE ASSESSES SHALL PAY BY WAY OF PENALTY, IN ADDITION T O TAX, IF ANY, PAYABLE BY HIM, A SUM COMPUTED AT THE RATE OFTEN PER CENT, OF THE U NDISCLOSED 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 STATEMENT UND ER SUB-SECTION (4) OF SECTION 132, ADMITS THE UNDISCLOSED INCOME AND SPEC IFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED ; ITA NOS.974 & 975/AHD/2012 & C.O. NOS. 113 & 114/AH D/2012 (DCIT VS. PRAFUL A SHAH) A.YS. 2008-09 & 2009-10 - 4 - (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., (3)..... , (4).... EXPLANATION. FOR THE PURPOSES OF THIS SECTION, (A) 'UNDISCLOSED INCOME' MEANS (I) ANY INCOME OF THE SPECIFIED PREVI OUS YEAR REPRESENTED, EITHER WHOLLY OR PARTLY, BY ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF AC COUNT OR OTHER DOCUMENTS OR TRANSACTIONS FOUND IN THE COURSE OF A SEARCH UNDER SECTION 32, WHICH HAS (A) NOT BEEN RECORDED ON OR BEFORE THE DATE OF SEARCH IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE N ORMAL 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 (II) ANY INCOME OF THE SPECIFIED PREVIOU S YEAR 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 T HE NORMAL COURSE RELATING TO THE SPECIFIED PREVIOUS YEAR WHICH IS FO UND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH N OT. BEEN CONDUCTED;...' THE APPELLANT AS STATED HEREIN ABOVE, HAS SHOWN ADD ITIONAL INCOME OF RS 1,50,00,000/-IN A.Y. 2008-2009 AND RS 1,25,00,000/- IN A.Y. 2009-2010 IN THE RETURN OF INCOME AND THE SAME WAS NOT OFFERED TO TAX IN TH E STATEMENT RECORDED U/S 132(4) OF THE ACT HENCE, EXCEPTION CRITERIA PROVIDED IN SECTI ON 271AAA(2) IS NOT AT ALL APPLICABLE IN PRESENT CASE. HOWEVER, FOR LEVY OF PE NALTY U/S 271AAA, FOREMOST CONDITION IS THAT PENALTY IS LEVIABLE ONLY ON 'UNDI SCLOSED INCOME' OF THE APPELLANT FOR WHICH SPECIFIC DEFINITION HAS BEEN PROVIDED UNDER T HE ACT AS REFERRED HEREIN ABOVE. THE APPELLANT HAS SHOWN ADDITIONAL INCOME IN THE RE TURN OF INCOME FILED FOR CURRENT ASSESSMENT YEARS BUT NO CAPITALIZATION OF SUCH AMOU NT HAS BEEN CLAIMED IN THE BOOKS OF ACCOUNTS. IN THE ASSESSMENT ORDER PASSED BY ASSE SSING OFFICER, THERE IS EVEN NO WHISPER ABOUT ANY UNACCOUNTED INCOME OR UNEXPLAINED EXPENDITURE FOUND DURING THE COURSE OF SEARCH OR ANY INCOME OF THE SPECIFIED PRE VIOUS YEAR 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 DOCUM ENTS .OR TRANSACTIONS FOUND IN THE COURSE OF A SEARCH UNDER SECTION 132, WHICH HAS NOT BEEN ACCOUNTED IN THE BOOKS OF ACCOUNTS. EVEN DURING THE COURSE OF SEARCH, NO MONE Y, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS WERE FOUND WHICH WERE N OT ACCOUNTED OR REPRESENTS UNEXPLAINED EXPENDITURE OR NO SEIZED DOCUMENTS WERE FOUND WHICH REPRESENTS UNACCOUNTED INCOME PERTAINING TO CURRENT ASSESSMENT YEAR. DURING THE COURSE OF SEARCH, NO STATEMENT OF APPELLANT WAS RECORDED WHIC H RELATES TO UNACCOUNTED INCOME/UNACCOUNTED EXPENDITURE OR IN SEARCH, NO COR RESPONDING UNACCOUNTED ASSETS WERE FOUND. ITA NOS.974 & 975/AHD/2012 & C.O. NOS. 113 & 114/AH D/2012 (DCIT VS. PRAFUL A SHAH) A.YS. 2008-09 & 2009-10 - 5 - HOWEVER, THE ASSESSING OFFICER HAS, IN PENALTY ORDE RS AT PARA 3(B), 3(D), 3(E) STATED THAT IN THE ASSESSMENT PROCEEDINGS, DISCREPANCY IN JEWELLERY FOUND DURING THE COURSE OF SEARCH AND JEWELLERY SHOWN IN THE BOOKS OF ACCOU NTS TO THE EXTENT OF RS 5,53,176/- (RS.3161,276/- IN A.Y. 2008-2009 AND RS. 1,91,900/- IN A.Y. 2009-2010) WAS FOUND WHICH WAS CONSIDERED AS COVERED BY THE DISCLOSURE. 5.1 THE APPELLANT'S EXPLANATION REGARDING SUCH DISC REPANCIES IS FACTUALLY INCORRECT AND FALSE BECAUSE THE GOLD JEWELLERY AND THE SILVER UTENSILS VALUED AT RS 5,53,7167- WERE FOUND DURING THE SEARCH AND WERE NOT DECLARED IN THE W.T. RETURN/BOOKS OF ACCOUNTS AND THIS WAS QUANTIFIED BY THE ASSESSING O FFICER ON TALLYING ONE TO ONE ITEM DURING THE ASSESSMENT PROCEEDINGS. THESE ITEMS WERE NOT DECLARED IN THE BOOKS AT ALL. THESE WERE NOT TREATED AS UNDISCLOSED DUE TO MINOR DISCREPANCY BUT WERE TREATED UNDISCLOSED BECAUSE THESE ITEMS WERE TOTALLY NOT DE CLARED AND ACCOUNTED FOR SO THE UNDISCLOSED INCOME TO THE EXTENT OF RS RS 5,53,716/ - DECLARED IN THE RETURN OF INCOME, IS REPRESENTED BY UNACCOUNTED JEWELLERY AND VALUABL E. REGARDING CLAIM OF THE APPELLANT THAT AS AGAINST TOTAL GOLD JEWELLERY OF 1 6526.69 GMS DECLARED UNDER THE W.T. RETURNS OF DIFFERENT FAMILY MEMBERS, THE TOTAL JEWELLERY OF 15297.30 GMS WAS FOUND IN THE SEARCH HENCE, NO UNACCOUNTED JEWELLERY WAS FOUND, I HAVE PERUSED THE SUBMISSION MADE BY THE APPELLANT AND ON CAREFUL CON SIDERATION OF THE ENTIRE DETAILS, IT IS EMANATING THAT GOLD JEWELLERY AND SILVER WORTH R S 5,53,716/- AS REFERRED HEREIN ABOVE FOUND DURING THE COURSE OF SEARCH WERE NOT FO UND RECORDED IN BOOKS OF ACCOUNTS OR JEWELLERY DECLARED IN WEALTH TAX RETURN AND THE APPELLANT HIMSELF REQUESTED TO SET OFF THE ITEMS AGAINST ADDITIONAL I NCOME DECLARED IN THE RETURN OF INCOME FOR BOTH THE ASSESSMENT YEARS. SUCH DIFFEREN CE IS FOUND WITH REFERENCE TO ITEMS WHICH ARE NOT DECLARED IN W.T. RECORD OR BOOKS OF A CCOUNTS OF ANY OF THE FAMILY MEMBER OF THE APPELLANT. AS SUCH, SUCH ITEMS ARE NO T REFLECTED IN W.T. RECORDS OR BOOKS OF ACCOUNTS OF ANY OF THE FAMILY MEMBERS OF T HE APPELLANT. THUS, AMOUNT OF RS 5,53,716/- REPRESENTS UNDISCLOSED INCOME OF THE APP ELLANT AS THESE ITEMS WERE CLAIMED TO-BE BELONGING TO THE APPELLANT: IN SUCH A SITUATI ON, THE ADDITIONAL INCOME TO THE EXTENT OF RS 3,61,276/- IN A.Y.. 2008-2009 AND RS 1 ,91,900/- FOR A.Y. 2009-2010, CANNOT BE CONSIDERED VOLUNTARY SURRENDER DURING THE COURSE OF SEARCH AND SUCH AMOUNT FALLS UNDER THE DEFINITION OF 'UNDISCLOSED I NCOME' AS PER CLAUSE (A) OF EXPLANATION TO SECTION 271 AAA AND THESE AMOUNT OFF ERED IN THE RETURN OF INCOME IS IN FACT UNDISCLOSED INCOME OF APPELLANT WHICH HAS N OT BEEN ADMITTED IN STATEMENT U/S 132(4) OF THE ACT AND FURTHER FOR WHICH THE MANNER OF EARNING SUCH INCOME AND SUBSTANTIATING MANNER AS PROVIDED IN SECTION 271 AA A ARE NOT DESCRIBED DURING THE ASSESSMENT PROCEEDINGS OR DURING SEARCH HENCE PENAL TY U/S 27TAAA @ 10% OF SUCH INCOME BEING RS 36,128/- IN A.Y. 2008-2009 AND RS 1 9,1907- IN A.Y. 2009-2010 IS CONFIRMED. THE REMAINING ADDITIONAL INCOME SHOWN IN THE RETURN OF INCOME WHICH WAS NOT DUE BEFORE SEARCH DATE FOR BOTH THE ASSESSMENT YEARS, I S VOLUNTARY OFFER OF INCOME AND SUCH AMOUNT IN NO CIRCUMSTANCES, CAN FALL UNDER THE DEFINITION OF 'UNDISCLOSED INCOME' AS REFERRED HEREIN ABOVE AS SUCH INCOME DOE S NOT REPRESENTED EITHER WHOLLY OR PARTLY, BY ANY MONEY, BULLION, JEWELLERY OR OTHE R 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 AND SAME HAS NOT BEEN RECORDED IN THE BOOKS OF ACCOUNTS. ONCE THE AMOUNT OFFERED IN THE RETURN OF INCOME IS NOT UNDISCLOSED INCOME OF THE APPELLANT AS PER SPECIFIC DEFINITION PROVIDE D IN THE ACT FOR THE PURPOSE OF LEVYING PENALTY, QUESTION OF LEVY OF PENALTY U/S 27 1AAA DOES NOT ARISE. IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASES, IT IS H ELD THAT THE ASSESSING OFFICER WAS NOT ITA NOS.974 & 975/AHD/2012 & C.O. NOS. 113 & 114/AH D/2012 (DCIT VS. PRAFUL A SHAH) A.YS. 2008-09 & 2009-10 - 6 - JUSTIFIED IN LEVYING PENALTY U/S 271AAA OF THE ACT @ 10% ON BALANCE AMOUNT OF RS 1,46,38,724/- (1,50,00,000/- LESS RS 3,61,276/-) AN D RS 1,23,08,100/-. (RS 1,25,00,000/- LESS RS 1,91,900/-) IN A.Y. 2008-2009 AND HENCE, THE PENALTY U/S 271 AAA OF RS 14,63,872/- IN A.Y. 2008-2009 AND RS 12,3 0,810/- IS DELETED. THIS LEAVES BOTH THE PARTIES AGGRIEVED TO THE EXTE NT INDICATED HEREINABOVE. 6. LD. DEPARTMENTAL REPRESENTATIVE STRONGLY REITERA TES ASSESSING OFFICERS FINDINGS THAT THE ASSESSEE DID NOT SPECIFY AND SUBS TANTIATE THE MANNER OF DERIVING THE IMPUGNED UNDISCLOSED INCOME. LD. COUN SEL REPRESENTING ASSESSEE FILES BEFORE US HONBLE JURISDICTIONAL HIGH COURTS JUDGMENT (2008) 299 ITR 305 (GUJARAT) AS WELL AS (2005) 278 ITR 454 (ALLAHABAD) CIT VS. RADHA KISHAN GOYAL TO SUBMIT THAT THE DEPARTMENTAL AUTHORITIES N EVER PUT SUCH SPECIFIC QUERIES QUA BOTH THESE TWO ASPECTS WHILST RECORDING SECTION 132 (4) STATEMENT AND IN SUCH CASES, THE IMPUGNED BENEFIT OF STATUTORY IMMUN ITY CANNOT BE DENIED. WE FURTHER FIND THAT THE LD. CIT(A) FURTHER CONCLUDES THAT THIS IS NOT EVEN A CASE INVOLVING UNDISCLOSED INCOME AS DEFINED IN SECTION 271AAA (EXPLANATION (A) (I) IN THE NATURE OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS SO AS TO INVOKE THE IMPUGNED PENAL PROVISION . THE SAME GOES UNREBUTTED FROM REVENUES END. WE ARE ACCORDINGLY OF THE OPIN ION THAT THE ASSESSEE HAS COMPLIED WITH THE ABOVE TWO IMMUNITY CONDITIONS AND ALSO THE REVENUE FAILS IN MAKING THE INSTANT CASE TO BE AN INSTANCE INVOLVING ANY UNDISCLOSED INCOME. WE THUS UPHOLD THE LOWER APPELLATE FINDINGS ON BOTH COUNTS. THE REVENUES APPEALS ITA NOS. 974 & 975/AHD/2012 ARE DECLINED. 7. THIS LEAVES US WITH THE ASSESSEES CROSS OBJECTI ONS CHALLENGING BOTH THE LOWER AUTHORITIES ACTION IN IMPOSING THE IMPUGNED PENALTIES OF RS.36,128/- AND RS.19,190/- IN THE TWO ASSESSMENT YEARS IN QUESTION . IT HAS ALREADY COME ON RECORD THAT THE ASSESSEES TOTAL GOLD JEWELLERY AS DECLARED IN WEALTH TAX RETURNS WEIGHS 16,526.69GRMS. WHEREAS THE DEPARTMENT COULD FOUND ONLY 15297.30GRMS. JEWELLERY IN THE COURSE OF SEARCH. W E FAIL TO UNDERSTAND AS TO HOW THE DIFFERENTIAL WEIGHT OF JEWELLERY COULD BE H ELD TO BE UNACCOUNTED ONCE ITA NOS.974 & 975/AHD/2012 & C.O. NOS. 113 & 114/AH D/2012 (DCIT VS. PRAFUL A SHAH) A.YS. 2008-09 & 2009-10 - 7 - THE LARGER FIGURE ALREADY STOOD DECLARED FOR ASSESS MENT UNDER WEALTH TAX PROVISIONS. LD. CIT(A) IS OF THE VIEW THAT THERE A RE SOME ITEMS WHICH ARE FOUND IN THE COURSE OF SEARCH BUT NOT REFLECTED IN THE WE ALTH TAX RETURN. THIS FAILS TO IMPRESS UPON US AS WE ARE CONCERN WITH THE GROSS WE IGHT OF THE JEWELLERY ITEM WHICH IS ALREADY MUCH MORE THAN THAT FOUND IN THE C OURSE OF SEARCH. LD. COUNSEL AT THIS STAGE ALSO QUOTES CBDTS CIRCULAR N O.1916 DATED 11.05.1994 LAYING DOWN GUIDELINES AS PER THE TRADITIONAL HINDU SOCIETY NORMS WHEREIN JEWELLERY ITEMS ARE GIFTED ON AUSPICIOUS OCCASIONS OF BIRTH, MARRIAGE AND OTHER CEREMONIES. WE HAVE DULY CONSIDERED THE SAME AND F IND NO REASON TO CONCUR WITH THE LOWER APPELLATE OBSERVATIONS UNDER CHALLEN GE. BOTH THESE TWO PENALTIES ARE DELETED. CROSS OBJECTIONS NO.113 & 114/AHD/201 2 ARE ACCEPTED. 8. THESE TWO REVENUES APPEALS ITA NOS.974 & 975/AH D/2012 ARE DISMISSED. ASSESSEES CROSS OBJECTION NOS. 113 & 1 14/AHD/2012 THEREIN ARE ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 22 ND DAY OF NOVEMBER, 2016.] SD/- SD/- (N. K. BILLAIYA) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 22/11/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0