M/s. Guruprasad Infrastructure Pvt. Ltd., Vadodara V. The Asstt. Commissioner of Income Tax, Central Circle-1, Baroda

ITSSA 146/AHD/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0954 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-09-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 24-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Document seized; Reasonable cause; Documents seized; Set aside
• Section: 143(3); 153A; 274; 13; 158BFA; 153; 147; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) I T (SS) A . NO S: 146 & 147 / AHD/2017 (ASSESSMENT YEARS: 2012-13 & 2013-14) M/S GURUPRASAD INFRASTRUCTURE PVT. LTD. 5, SHRI RAM NAGAR, B/H RTO, WARASIA COLONY VADODARA-390006 V/S ACIT, CENTRAL CIRCLE - 1, BARODA (APPELLANT) (R ESPONDENT) PAN: AADCG 6787C APPELLANT BY : SMT. URVASHI SHODHAN , A.R. RESPONDENT BY : SHRI DILEEP KUMAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 16 -03-202 0 DATE OF PRONOUNCEMENT : 01-06-2020 PER WASEEM AHMED, ACCOUNTANT MEMBER 1. THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AG AINST THE ORDER OF THE LD. CIT(A)-12, AHMEDABAD DATED 06.12.2016 PERTAINING TO A.Y. 2012-13 & 2013-14. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL : IT(SS)A NO. 146 & 147/AHD/2017 . A.YS. 2012- 13 & 2013-14 2 1. LD. CIT (A) ERRED IN LAW AND ON FACTS CONF IRMING PENALTY LEVIED BY AO OF RS. 38, 20, 160/- INVOKING PROVISIONS OF SECTION 271AAB OF THE ACT. LD. CIT (A) ERRED IN IGNORING THAT THE APPELLANT ALREADY OFFERE D INCOME DISCLOSED AT THE TIME OF SEARCH ALONG WITH DUE PAYMENT OF TAXES. 2. LD. CIT (A)ERRED IN LAW AND ON FACTS CONFI RMING PENALTY UNDER NEWLY , INTRODUCED PROVISIONS OF SECTION 271AAB NOT GRANTING IMMUNITY FROM PENALTY WHEN INCOME RETURNED STOOD ACCEPTED BY AO IN ORDER U/S 153 A ' R W S 143 (3) OF THE ACT WITHOUT ANY ADJUSTMENT OR ADDITION. 3. LD. CIT (A) ERRED IN LAW AND ON FACTS IN H OLDING INCOME SHOWN IN RETURN AS 'UNDISCLOSED INCOME' LIABLE TO PENALTY IGNORING THA T INCOME IS NOT REPRESENTED BY ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF ACCOUNTS. 4. BOTH THE LOWER AUTHORITIES ERRED IN LAW AN D ON FACTS IN NOT APPRECIATING THE FACT THAT IMPOSITION OF PENALTY IS DISCRETIONARY & NOT M ANDATORY. 3. THE ASSESSEE IN THIS APPEAL HAS CHALLENGED THE PENA LTY IMPOSED BY THE AO AND CONFIRMED BY THE LEARNED CIT (A) FOR RS. 38,20,160/ - UNDER THE PROVISIONS OF SECTION 271AAB OF THE ACT. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IN THE PRE SENT CASE IS A PRIVATE LIMITED COMPANY AND ENGAGED IN THE BUSINESS OF DEVELOPMENT OF REAL ESTATE/INFRASTRUCTURE/LAND. THERE WAS A SEARCH UNDE R SECTION 132 OF THE ACT, CARRIED OUT AT THE PREMISES OF DHANJIMAMA GROUP INC LUDING THE ASSESSEE DATED 3 RD JULY 2012. THE ASSESSEE AS A RESULT OF SEARCH HAS DISCLOSED AN INCOME OF RS. 3,82,01,600/- IN THE RETURN FILED IN RESPONSE TO TH E NOTICE ISSUED UNDER SECTION 153A OF THE ACT. SUBSEQUENTLY, THE ASSESSMENT WAS F RAMED UNDER SECTION 153A READ WITH SECTION 143(3) OF THE ACT, AT RS. 4,50,67 ,270/-VIDE ORDER DATED 20THMARCH 2015. 5. THE AO IN THE ASSESSMENT ORDER INITIATED THE PENALT Y PROCEEDINGS UNDER SECTION 271AAB OF THE ACT, BEING THE SPECIFIED ASSESSMENT Y EAR WITH RESPECT TO THE DISCLOSURE MADE BY THE ASSESSEE FOR RS. 3,82,01,600 /- BY ISSUING NOTICE UNDER SECTION 274 OF THE ACT. IT(SS)A NO. 146 & 147/AHD/2017 . A.YS. 2012- 13 & 2013-14 3 6. THE ASSESSEE IN RESPONSE TO SUCH NOTICE SUBMITTED T HAT THERE WAS NO MATERIAL FOUND IN THE COURSE OF THE SEARCH SUGGESTING THE UN DISCLOSED INCOME OF IT. AS SUCH THE INCOME WAS DISCLOSED IN ORDER TO BUY THE P EACE OF MIND WITHOUT FINDING OUT ANY MATERIAL. ACCORDINGLY, THE ASSESSEE CLAIMED THAT THERE CANNOT BE ANY PENALTY UPON THE ASSESSEE ON ACCOUNT OF UNDISCLOSED INCOME UNDER THE PROVISIONS OF SECTION 271AAB OF THE ACT. 7. HOWEVER, THE AO DISAGREED WITH THE CONTENTION OF TH E ASSESSEE BY OBSERVING THAT THE INCOME WAS DISCLOSED BY THE ASSESSEE ON TH E BASIS OF INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH AND THE SAME WAS ALSO ADMITTED IN THE STATEMENT FURNISHED UNDER SECTION 132(4) OF THE ACT. ACCORDINGLY THE AO LEVIED THE PENALTY OF RS. 38,20,160/- BEING 10% OF T HE UNDISCLOSED INCOME UNDER SECTION 271AAB OF THE ACT. 8. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARN ED CIT (A) WHO HAS ALSO CONFIRMED THE ORDER OF THE AO BY OBSERVING AS UNDER : I HAVE ALSO NOTED THAT THOUGH IT HAS BEEN STATED BY THE APPELLANT THAT THE INCOME OFFERED IN THE RETURNS OF INCOME IS NOT 'UNDISCLOSED INCOME ' AS DEFINED IN EXPLANATION (C) BELOW SECTION 271AAB, THE SAME IS NOT EVEN ATTEMPTED TO B E SO ESTABLISHED OR SUBSTANTIATED EITHER BEFORE THE AO OR EVEN BEFORE ME. THE FACT TH AT THE APPELLANT MADE 'DISCLOSURE' U/S 132(4) AND ALSO FURTHER OWNED UP SUCH INCOMES I N RETURN OF INCOME FILED U/S 153A WOULD PRIMA FACIE LEAD TO A REASONABLE PRESUMPTION, THOUGH REBUTTABLE, THAT SUCH 'DISCLOSURE' IS BASED ON, AND IS A CONSEQUENCE OF, INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH, BECAUSE, READINESS FOR GRATUITOUS AND UNWARRANTED PAYMENT OF TAXES IS NOT ONLY UNNATURAL OR UNHEARD OF, BUT I S ALSO CONTRADICTORY TO NORMAL HUMAN BEHAVIOUR. IT WAS THEREFORE INCUMBENT ON THE APPELL ANT TO HAVE DEMONSTRATED AND SUBSTANTIATED BEFORE THE AO (OR AT LEAST BEFORE ME) THAT INCOME SHOWN IN THE RETURN IS NOT 'UNDISCLOSED INCOME' WITHIN THE MEANING OF SECT ION 271AAB R.W. EXPLANATION (C). THIS NOT HAVING BEEN DONE BY THE APPELLANT, THE AO WAS JUSTIFIED IN PRIMA FACIE CONCLUDING THAT THE DISCLOSURE U/S 132(4) IS NOT LU MP SUM BUT IS BASED ON SEIZED ASSETS/DOCUMENTS. MY PERUSAL OF THE STATEMENT OF SH RI DASWANI U/S 132(4) DATED 29/8/2012 LEAVES NO DOUBT IN MY MIND THAT DISCLOSUR E U/S 132(4) IS CLEARLY AND CATEGORICALLY BASED ON SEIZED DOCUMENTS. NOT ONLY A NSWERS TO QUESTIONS 1 AND 2 OF THE STATEMENT OF SHRI DASWANI WOULD ESTABLISH SO', THE FACT THAT THE AMOUNTS OF 'UNDISCLOSED INCOME' HAVE BEEN 'WORKED OUT' TO THE ACCURACY OF A MOUNTS LIKE RS.79,69,675/- FOR F.Y.2010-11 AND RS.45,23,454/- FOR F.Y.2012-13 AFTE R THE EXAMINATION OF SEIZED DOCUMENTS BY THE APPELLANT WOULD ALSO CLEARLY INDIC ATE THAT INDEED THE DISCLOSURE IS BASED ON ADVERSE, SOUND AND CREDIBLE MATERIAL SEIZE D DURING THE COURSE OF THE SEARCH. THUS, THE AMOUNTS SHOWN IN BOTH THE RETURNS OF INCO ME CAN UNHESITATINGLY BE HELD TO BE IT(SS)A NO. 146 & 147/AHD/2017 . A.YS. 2012- 13 & 2013-14 4 'UNDISCLOSED INCOME' WITHIN THE MEANING OF SECTION 271AAB. ONCE THE AMOUNT FORMING PART OF RETURNED INCOME IS 'UNDISCLOSED INCOME' AND WHEN FURTHER THERE IS NO REASONABLE CAUSE EVEN PLEADED, LEAVE ASIDE THE SAME HAVING BEE N ESTABLISHED FOR THE AO TO GET PERSUADED IN NOT LEVYING THE PENALTY U/S 271AAB, TH E AO, IN MY CONSIDERED OPINION, IS ABSOLUTELY JUSTIFIED, ARID IS INDEED WITHIN THE FOU R' CORNERS OF LAW, IN LEVYING THE PENALTY. I HAVE ALSO PERUSED THE AUTHORITIES CITED BEFORE THE AO AND CITED BEFORE ME. I FIND THAT NEERAT SINGHAL (SUPRA) IS. NOT ONLY IN THE CONTEXT OF SECTION 271AAA, IT IS ALSO ON THE ISSUE OF 'SUBSTANTIATION' AS CONTEMPLATED U/S 271AA A(2)(II) AND THEREFORE THE APPELLANT'S RELIANCE ON THIS DECISION IS MISPLACED. SIMILARLY, DEEPCHAND & CO., MININAGA REDDY AND OTHER AUTHORITIES (ALL SUPRA) ARE IN THE CONTEXT OF SECTION 271(L)(C) AND THEREFORE ARE CLEARLY NOT APPLICABLE. IN MY CONSIDERED OPINION, T HE ONLY STATUTORY REQUIREMENT ON THE PART OF THE AO FOR JUSTIFYING LEVY OF PENALTY U/S 2 71AAB IS TO' BRING ON RECORD THE FACT THAT THE 'UNDISCLOSED INCOME' FORMING PART OF THE ASSESS ED INCOME IS EVIDENCED BY SEIZED DOCUMENTS/ASSETS. I AM UNHESITATINGLY SATISFIED THA T THE AO HAS INDEED DONE SO FOR BOTH THE APPEALS UNDER REFERENCE. IN VIEW OF THIS, I FIN D NO REASON TO INTERFERE WITH THE WELL- REASONED ORDERS OF THE A.O. LEVYING PENALTY. 9. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 10. THE LEARNED AR BEFORE US HAS FILED A PAPER BOOK RUN NING FROM PAGES 1 TO 88 AND SUBMITTED THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH PROCEEDINGS AND FURTHERMORE THE INCOME WAS A DMITTED IN THE STATEMENT FURNISHED UNDER SECTION 132(4) OF THE ACT, TO BUY T HE PEACE OF MIND. THEREFORE THERE CANNOT BE ANY PENALTY UNDER SECTION 271AAB OF THE ACT. 11. ON THE CONTRARY, THE LEARNED DR SUBMITTED THAT THE DISCLOSURE WAS MADE BY THE ASSESSEE ON THE BASIS OF THE MATERIALS FOUND DURING THE COURSE OF SEARCH. THIS FACT HAS ALSO BEEN ADMITTED BY THE LEARNED CIT (A). THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 12. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE NOTE THAT THE EXP LANATION(C) TO SECTION 271AAB OF THE ACT, HAS A DIRECT BEARING ON THE ISSUE ON HA ND WHICH READS AS UNDER: PENALTY WHERE SEARCH HAS BEEN INITIATED. 271AAB. (1) THE ASSESSING OFFICER MAY, NOTWITHSTAND ING ANYTHING CONTAINED IN ANY OTHER PROVISIONS OF THIS ACT, DIRECT THAT, IN A CASE WHER E SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JULY, 2012 49[BUT BE FORE THE DATE ON WHICH THE TAXATION IT(SS)A NO. 146 & 147/AHD/2017 . A.YS. 2012- 13 & 2013-14 5 LAWS (SECOND AMENDMENT) BILL, 2016 RECEIVES THE ASS ENT OF THE PRESIDENT50], THE ASSESSEE SHALL PAY BY WAY OF PENALTY, IN ADDITION T O TAX, IF ANY, PAYABLE BY HIM, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXX (C) 'UNDISCLOSED INCOME' MEANS (I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REP RESENTED, EITHER WHOLLY OR PARTLY, BY ANY MONEY, BULLION, JEWELLERY OR OTHER V ALUABLE ARTICLE OR THING OR ANY ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACT IONS FOUND IN THE COURSE OF A SEARCH UNDER SECTION 132, WHICH HAS (A) NOT BEEN RECORDED ON OR BEFORE THE DATE OF SE ARCH IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PREVIOUS YEAR; OR (B) OTHERWISE NOT BEEN DISCLOSED TO THE 54[PRINCI PAL CHIEF COMMISSIONER OR] CHIEF COMMISSIONER OR 54[PRINCIPAL COMMISSIONER OR] COMMISSIONER BEFORE THE DATE OF SEARCH; OR (II) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR RE PRESENTED, EITHER WHOLLY OR PARTLY, BY ANY ENTRY IN RESPECT OF AN EXPENSE RECOR DED IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO THE SPECIFIED PREVIOUS YEAR WHICH IS FOUND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED.] 13. FROM THE ABOVE PROVISION, IT IS CLEAR THAT THE PENA LTY SHALL BE IMPOSED UNDER SECTION 271AAB OF THE ACT, WHERE THERE IS UNDISCLOS ED INCOME WITHIN THE MEANING OF THE EXPLANATION (C) TO 271AAB OF THE ACT . HOWEVER, WE NOTE THAT THERE WERE NO INCRIMINATING MATERIALS FOUND DURING THE SEARCH SUGGESTING THAT THERE WAS ANY UNDISCLOSED INCOME OF THE ASSESSEE. 14. WE HAVE ALSO GONE THROUGH THE STATEMENT FURNISHED B Y THE ASSESSEE UNDER SECTION 132(4) OF THE ACT, DURING THE SEARCH PROCEE DINGS WHICH IS PLACED ON PAGE 86 TO 88 OF THE PAPER BOOK AND NOTE THAT EVEN IN TH E STATEMENT THERE WAS NO REFERENCE TO ANY SUCH MATERIAL FOUND DURING THE COU RSE OF SEARCH FOR THE INCOME DISCLOSED BY THE ASSESSEE IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 153A OF THE ACT. 15. AS SUCH THE VOLUNTARY INCOME WAS DISCLOSED BY THE A SSESSEE AND THE ADDITION MADE BY THE AO WAS WITHOUT HAVING FOUND ANY INCRIMI NATING DOCUMENT IN THE COURSE OF SEARCH. WE ALSO NOTE THAT THERE WAS NO RE FERENCE MADE BY THE IT(SS)A NO. 146 & 147/AHD/2017 . A.YS. 2012- 13 & 2013-14 6 AUTHORITIES BELOW TO THE DOCUMENTS OF INCRIMINATING NATURE HAVING BEARING ON THE INCOME OF THE ASSESSEE IN THEIR RESPECTIVE ORDERS. THE LD. DR HAS NOT ADVANCED ANY ARGUMENTS AGAINST THE CONTENTIONS RAISED BY THE LD. AR FOR THE ASSESSEE. ACCORDINGLY, WE ARE OF THE VIEW THAT THERE CANNOT B E ANY PENALTY UNDER THE PROVISIONS OF SECTION 271AAB OF THE ACT. 16. IN HOLDING SO WE DRAW SUPPORT AND GUIDANCE FROM THE ORDER OF THE VISAKHAPATNAMTRIBUNAL IN THE CASE OF ACIT VS. MARVE L ASSOCIATES REPORTED IN 170 ITD 353 WHEREIN IT WAS HELD AS UNDER: 9. PENALTY U/S 271AAB ATTRACTS ON UNDISCLOSED INCO ME BUT NOT ON ADMISSION MADE BY THE ASSESSEE U/S 132(4). THE AO MUST ESTABLISH THAT THE RE IS UNDISCLOSED INCOME ON THE BASIS OF INCRIMINATING MATERIAL. IN THE INSTANT CAS E A LOOSE SHEET WAS FOUND ACCORDING TO THE A.O., IT WAS INCRIMINATING MATERIAL EVIDENCING THE UNDISCLOSED INCOME. IN THE PENALTY ORDER THE AO OBSERVED THAT LOOSE SHEET SHOWS THE CO ST PER SQUARE FEET IS RS.3571/- PER SFT. AND ASSESSEE STATED TO HAVE SUBMITTED IN SWORN STATEMENT COST PER SQ. FEET AT RS.2200/- TO RS.2300/- PER SQ. FEET. HOWEVER NEITHE R THE AO NOR THE LD.CIT(A) HAS VERIFIED THE COST OF CONSTRUCTION WITH THE BOOKS AN D PROJECTIONS FOUND AT THE TIME OF SEARCH. THE COUNSEL ARGUED THAT IT WAS MERE PROJECT ION BUT NOT THE ACTUALS. THE WRITE UP HEADING ALSO MENTIONED THAT SUMMARY OF THE PROJECTE D PROFITABILITY STATEMENT. THERE IS NO EVIDENCE TO ESTABLISH THAT PROJECTIONS REFLECTED IN THE LOOSE SHEET IS REAL. NO OTHER MATERIAL WAS FOUND DURING THE COURSE OF SEARCH INDI CATING THE UNDISCLOSED INCOME. THERE WAS NO MONEY, BULLION, JEWELLERY OR VALUABLE ARTICL E OR THING OR ENTRY IN THE BOOKS OF ACCOUNTS OR DOCUMENTS TRANSACTIONS WERE FOUND DURIN G THE COURSE OF SEARCH INDICATING THE ASSETS NOT RECORDED IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE, WHOLLY OR PARTLY. THE REVENUE DID NO T FIND ANY UNDISCLOSED ASSET, ANY OTHER UNDISCLOSED INCOME OR THE INFLATION OF EXPEND ITURE DURING THE SEARCH/ ASSESSMENT PROCEEDINGS. THOUGH A LOOSE SHEET OF PAGE NO.107 OF ANNEXURE A/GS/MA/1 WAS FOUND THAT DOES NOT INDICATE ANY SUPPRESSION OF INCOME BU T IT IS ONLY PROJECTION OF PROFIT STATEMENT. THE AMOUNT OF RS.3571/- MENTIONED IN THE PROJECTIONS REFERS TO COST AND PROFIT WHICH IS APPROXIMATE SALE PRICE BUT NOT THE COST AS STATED BY THE AO IN THE PENALTY ORDER. THE COST OF CONSTRUCTION IN THE PROJECTIONS PROJECTED AT RS.2177/- WHICH IS IN SYNCH WITH THE STATEMENT GIVEN BY THE ASSESSEE. THE AO WA S HAPPY WITH THE DISCLOSURE GIVEN BY THE ASSESSEE AND DID NOT VERIFY THE FACTUAL POSI TION WITH THE BOOKS OF ACCOUNTS AND PROJECTIONS AND BRING THE EVIDENCE TO UNEARTH THE U NDISCLOSED INCOME. NEITHER THE A.O. NOR THE INVESTIGATION WING LINKED THE COST OF PROFI T OR COST OF ASSET TO THE ENTRIES IN THE BOOKS OF ACCOUNTS OR TO THE SALES CONDUCTED BY THE ASSESSEE TO THE SALE DEEDS. THEREFORE, WE ARE UNABLE TO ACCEPT THE CONTENTION O F THE REVENUE THAT THE LOOSE SHEET FOUND DURING THE COURSE OF SEARCH INDICATES ANY UND ISCLOSED INCOME OR ASSET OR INFLATION OF EXPENDITURE. THE HON'BLE ITAT DELHI BENCH IN THE CASE OF AJAY SHARMA V. DY. CIT [2013] 30 TAXMANN.COM 109 HELD THAT WITH RESPECT TO THE ADDITION ON ACCOUNT OF ALLEGED RECEIVABLES AS PER SEIZED PAPER, THERE IS NO DIRECT MATERIAL WHICH LEADS AND ESTABLISHES THAT ANY INCOME RECEIVED BY THE ASSESSEE HAS NOT BE EN DECLARED BY THE ASSESSEE. AN ADDITION HAS BEEN MADE ON THE BASIS OF LOOSE DOCUME NT, WHICH DID NOT CLOSELY PROVE ANY CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS BY THE ASSESSEE. HENCE PENALTY U/S 158BFA (2) OF THE ACT IS NOT LEVIABLE. IT(SS)A NO. 146 & 147/AHD/2017 . A.YS. 2012- 13 & 2013-14 7 THE FACTS OF THE ASSESSEE'S CASE SHOWS THAT THERE W AS NO UNDISCLOSED INCOME FOUND DURING THE COURSE OF SEARCH AND NO INCRIMINATING MA TERIAL WAS FOUND, HENCE WE HOLD THAT THERE IS NO CASE FOR IMPOSING PENALTY U/S 271AAB OF THE ACT, ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LOWER AUTHORITIES AND CANCEL THE P ENALTY U/S 271AAB OF THE ACT. 17. WE ARE ALSO CONSCIOUS TO THE FACT THAT THE IMPUGNED PENALTY WAS DELETED IN THE CASE OF OTHER ASSESSEE WHO WERE PART OF THE GROUP A ND SUBJECT TO THE SAME SEARCH VIS-A-VIS INVOLVING IDENTICAL FACTS AND CIRC UMSTANCES. THE DETAILS OF SUCH CASES HAVE ALREADY BEEN FILED BY THE ASSESSEE WHICH ARE AVAILABLE ON RECORD. THE DETAILS OF THE SAME STANDS AS UNDER: I. MUKESH D. MANGLANI & OTHERS VS. ACIT IN 591/AHD/ 2018 VIDE ORDER DATED 18-12- 2019 II. GURUPRASAD INFRASTRUCTURE PRIVATE LTD VS. DCIT IN ITA NUMBERS 1658- 1659/AHD/2017 VIDE ORDER DATED 19 JULY 2019. 18. IN VIEW OF THE ABOVE, WE ARE NOT CONVINCED WITH THE PENALTY LEVIED BY THE AUTHORITIES BELOW. HENCE WE SET ASIDE THE ORDER OF THE LD. CIT (A) AND DIRECT THE AO TO DELETE THE PENALTY LEVIED BY HIM UNDER SECTIO N 271AAB OF THE ACT. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. 20. COMING TO THE IT(SS)A NO. 147/AHD/2017 FOR A.Y.; 20 12-13 21. AT THE OUTSET WE NOTE THAT THE IDENTICAL ISSUE HAS BEEN IN THE APPEAL OF THE ASSESSEE BEARING ITA NO. 146/AHD/2017 HAVE BEEN DEC IDED BY US IN FAVOUR OF THE ASSESSEE VIDE PARAGRAPH NO. 12 TO 18 OF THIS OR DER. FOR THE DETAIL DISCUSSION PLEASE REFER THE RELEVANT PARAGRAPH AS DISCUSSED AB OVE. THEREFORE RESPECTFULLY FOLLOWING THE SAME AND TO MAINTAIN PARITY WITH THE FINDINGS, WE ALLOW THE GROUND OF APPEAL RAISED BY THE ASSESSEE. IT(SS)A NO. 146 & 147/AHD/2017 . A.YS. 2012- 13 & 2013-14 8 22. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. 23. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE ASS ESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 01- 06- 2020 SD/- SD/- (RAJPAL YADAV) (WASEEM AHMED) VICE PRESIDENT TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 01/06/2020 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD