TaxTMI 
TaxTMI 
2014 (1) TMI 1755
X X X X Extracts X X X X
X X X X Extracts X X X X
....erefore whatever view the Tribunal may take in the case of Shri Naresh Kumar Agarwal the same view may be taken in the case of other assesses. ITA Nos.1289-1290/Kol/2012 (Shri Naresh Kumar Agarwal) 3. The brief facts are that a search and seizure action u/s 132 of the I.T.Act was conducted in the case of 'Sri Ram Sonthalia & Kushal Group' on 24.04.2008 and subsequently the assessee made a disclosure of Rs. 1,25,00,000/- u/s 132(4) during the course of search. Notice u/s 153A of the IT Act was issued in the case of the assessee for A.Yr.2003-04 to 2008-09. All the assessee are involved in the business of Real Estate, manufacturing of sponge iron and logistics etc. Return of income including the undisclosed income of Rs. 1,25,00,000/- at an income of Rs. 1,61,55,646/- was filed for A.Yr.2008-09. similarly for the A.Yr. 2009-10 the assessee has shown undeclared income of Rs. 50,00,000/-. The assessee stated in the balance sheet that the undisclosed income of Rs. 1,75,00,000/- in both the years was earned by him and the business assets through real estate business and other business. The AO completed the assessment for A.Yr. 2008-09 at Rs. 1,63,66,970/- and for A.Yr.2009-....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... undisclosed income of Rs. 1,25,00,OOO/-. The AO was of Of the view that since both the returns were filed after the date of search, it is a clear case which attracts penalty provisions u/s 271AAA and that, the case is not covered by the benefit as envisaged under sub-section (2) of section 271AAA. Secondly, the AO was also of the opinion that the appellant was not having clear idea about his undisclosed income on the date of search and he gave only an idea of the manner of earning of undisclosed income. The appellant also failed to substantiate the disclosure by furnishing the documents or other related and matching documents. The source of the undisclosed income which was claimed as from the real estate business and other businesses could neither be proved nor could be substantiated in any manner by the appellant. Therefore, the conditions laid down in sub-section (2) of section 271AAA are not satisfied. On the other hand, it is argued by the appellant that the conditions of sub-section (2) of section 271AAA are satisfied because in the course of search he has admitted the undisclosed income in the statement u/s 132(4) and also specified the manner in which such income has been d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....purpose of section 271AAA the meaning of the "undisclosed income" has also been provided in Explanation (a) which reads as under: (a) "undisclosed income" means - (i) any income of the specified previous 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 documents or transactions found in the course of search under section 132, which has - (A) not been recorded on or before the date of search in the books of account or other documents maintained in the normal course relating to such previous year; or (8) otherwise not been disclosed to the Chief Commissioner or Commissioner before the date of search; or (ii) any income of the specified previous year represented, either wholly or partly, by any entry in respect of an expense recorded in the books of account or other documents maintained in the normal course relating to specified previous year which is found to be false and would not have been found to be so had the search not been conducted; Thus, from the meaning of undisclosed income explained in the above Explanation, it is apparent that the undisclosed income ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e conditions of sub-section(2) of section 271AAA are satisfied. The appellant had admitted the undisclosed income in the course of search in the statement u/s 132(4) and specified the manner in which such undisclosed income has been derived. The appellant also paid the tax on such undisclosed income. I find force in the submission of the appellant that since no document was found during the search which could even indicate any undisclosed income earned by him, the question of substantiating the same is impractical. Therefore I am of the considered opinion that the appellant could not be denied immunity under section 271AAA(2) of the Act. In view of the above, it is to be held that the AO was not justified in imposing penalty u/s 271AAA of the Act. He is directed to delete the penalty. The ground no.1 is allowed." 4. Similarly the penalty for A.Yr.2009-10 was also deleted. 5. The ld. DR even though relied on the order of the AO but could not convince us how the assessee fails to get immunity from the penalty u/s 271AAA of the Act. The assessee has declared undisclosed income in the return filed u/s 153A and paid tax along with the interest and the provision of section 271AAA(1....