TaxTMI 
TaxTMI 
2014 (8) TMI 759
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....ake of convenience, by a consolidated order. 2. The grounds raised in ITA No.3856/Del/2013) read as under:- (i) Whether on the facts and in the circumstances of the case the Ld. CIT(A) was right in deleting the penalty of Rs. 50,50,500/- imposed by the AO u/s. 271AAA of the I.T. Act, 1961 by ignoring the fact the assessee could not lead any evidence to establish that the condition laid down in the section to substantiate the manner in which undisclosed income has been earned remained not satisfied. (ii) That the appellant craves to add, delete or modify any of the grounds of appeal before or at the time of hearing." 3. The grounds raised in ITA No.3857/Del/2013 read as under:-  ....
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....ents of the ITAT and Hon'ble Supreme Court from pages no.1 to 115, which facts and circumstances are similar and identical with that of the present assessee and also by way of these judgments the assessee's case is also covered. For the sake of brevity, we are referring herewith some of the judgments as cited by the Assessee in his paper book and citing conclusion of the cases as under:- - ITA No.6763/Mum/2011 - Kanakia Spaces P Ltd. vs. "When the statement is being recorded by the authorized officer it is incumbent upon the Authorized Officer to explain the provisions of Explanation 5 in entirety to the assessee concerned and the Authorized Officer cannot stop short at a particular stage so as to permit the Revenue to....
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....not explain the manner of earning of income and could not substantiate the manner of earning of undisclosed income but the substantial justice should be defeated. Not substantiating the manner at the time of search is nothing but a technical default. The assessee has declared that this is undisclosed income and the same is disclosed under section 132(4), subject to taking the condition for not levying the penalty under section 271AAA are satisfied." ITAT, Cuttack in the case of Ashok Kumar Sharma vs. DCIT [2012] 77 DTR 241 (Ctk.), on similar facts, the penalty levied by the AO has been deleted by the Tribunal. The Tribunal has held that the assessee having disclosed the concealed income while gi....
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...."10.5 in the absence of any further corroborative adverse material, the contentions of the assessee regarding the said surrender of Rs. 4,65,00,000/- is accepted. 11.3 in the absence of any further corroborative adverse material, the contentions of the assessee regarding the said surrender of Rs. 40,00,000/- is accepted." 7.3 However on the same lines, AO writes at para 10.6 and 11.4 as under:- "10.6 however, I am satisfied that the assesse is liable for penal proceedings in terms of section 271AAA of the Act in respect of the surrender of Rs. 4.65 crores, for which notice u/s 274 is being issued separately. 11.5 however, I am satisfied that the assesse is liable for penal....
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....at the AO in the assessment order at page 2 para 6 has also recorded the following:- "6. The regular books of accounts, viz the cash book, the ledger, the bank account statements, were produced by the assessee which were verified and examined vis-a-vis the findings of the search (cash found, jewellery found, immovable property found, the diary/ loose sheets found and facts emerging out of the statements recorded under section 132 (4) of the act) and the final financial statement filed by the assessee with the return of income." 7.5 As per Ld. CIT(A)'s observation, the AO has accepted the explanation as no further corroborative adverse material was in the possession of the AO. The books of accounts stands vetted. In ....