TaxTMI 
TaxTMI 
2018 (2) TMI 1778
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....nos. CIT(A)-12/368B/CC-1/Baroda/14-15, CIT(A)-12/374B/CC-1/Baroda/14-15, CIT(A)-12/369B/CC-1/Baroda/14-15, CIT(A)-12/379B/CC-1/Baroda/14-15, CIT(A)-12/362B, 363B/CC-1/Baroda/14-15 & CIT(A)-12/376B/CC-1/Baroda/14- 15, deleting penalties of Rs. 41,06,568/-, Rs. 16,10,000/-, Rs. 25,00,000/-, Rs. 33,00,000/-, Rs. 20,00,000/-, Rs. 20,00,000/- & Rs. 40,00,000/-; respectively, in proceedings u/s. 271AAA of the Income Tax Act, 1961; in short "the Act". Heard both the parties. Case files perused. 2. We notice at the outset that the instant batch of seven appeals had emanated from a search action dated 09.08.2011 conducted in case of Suncity/Anil Bholabhai Group of cases. One Shri Rajendra Shah acted as group's authorized person during the course of search to admit undisclosed income of Rs. 35crores. S/Shri Akshay Kothari, Shri Chandrajit Shah and Shri Mahesh Kothari also signed the said statement. This followed relevant letters issued to the DDIT-2, Baroda on behalf of the said group giving details of the relevant undisclosed income in corresponding cases. The search statement in question also stands extracted in CIT(A)'s all orders under challenge before us. These assessees thereafter f....
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....ity with the respective "disclosures" made by both appellant and Rajesh Shah, taxing only the "admitted amounts" in their respective hands and no more as per table on page 2 of the assessment order. The AO, in my considered opinion, can't turn around and deviate, as rightly submitted by the ARs, from a mutually accepted position of admission and taxation. The fact that Shri Rajesh Shah has not been taxed, and appellant has been taxed, on the amount owned up by appellant is in complete contrast to the stand taken by the AO during penalty proceedings to the effect that the appellant has "not admitted the amount u/s 132(4)", The Ld. AR is right that the stand taken by the AO during penalty proceedings is too mechanical and narrow and is also in complete contrast to AO's own action during assessment. The AR is also right that during the course of search, the appellant himself also has signed the statement u/s 132(4) and admitted unaccounted receipts on the basis of seized documents confronted to Rajesh Shah who made the group admission. I also agree with the submission made by the AR that as held in Balaji Formalin (supra), the admission u/s 132(4) by the key person in the hand....
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....erved and held by me that the terms "stating the manner and substantiating the same" has not been defined in s. 271AAA and therefore the same is to be understood only in the sense explained in Mahendra C Shah and SidhNathGoel,(supra) as further followed and explained in Geeta prints (supra) by Ahmedabad tribunal, and thus, it has been held by me that the assessee cannot be expected to provide graphic details, a rupee-to-rupee account and exact and immediate source of unaccounted income/cash in view of social conditions and over all environment of recording of statement u/s 132(4). It is also primarily for the Authorized Officer and thereafter the Investigating Officer to solicit further information and explanation from the assessee or key person while recording the statement u/s 132(4), When the disclosure is clearly based on seized documents, the broad source has been indicated by the assessee or key person, the appellant has "made a clean breast of his admitted unaccounted income" while filing the return u/s 153A/139, and assessment is also framed on the basis of disclosure made in the statement u/s 132(4) and the return, without any alteration to returned income or any adverse f....
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....ecord. The learned CIT(A) had deleted the penalty due to the following reasons: 1) The assessee had voluntarily disclosed the sum of Rs. 50,00,000/- during the search proceedings with request that no penalty should be levied in respect of such disclosure. (2) During the post search proceedings no specific question as regards manner of earning of undisclosed income or substantiation thereof was put forth by the revenue. (3) The assessee had also paid due tax for the undisclosed income of Rs. 50,00,000/- declared voluntarily. (4) In the decision rendered by the jurisdictional High Court of Gujarat in the case of CIT VsMahendra C. Shah (2008) 299 ITR 305 (Guj) it was held that when undisclosed income admitted by the assessee has been offered for tax in the return of income and the tax thereof duly paid, penalty cannot be levied, specifically, in the absence of any question in this respect by the AO. At this juncture, we must admit that the reasons pointed out by the learned CIT(A) are justifiable for deleting the penalty levied by the learned AO u/s 271 AAA of the Act. Therefore, we do not find any hesitation to confirm the order of the lea....
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....f various authorities cited by the AR and also otherwise perused by me, I am of the considered opinion that the fact that the Authorized Officer during search, and Investigating Officer thereafter, has acquiesced in the reply given by the appellant, without any further probe at that time, clearly brings out that. compliance satisfactory to the Investigating Officer has been made by the appellant. Thereafter, once the appellant has filed the return honoring his commitment fully, which has also been accepted during assessment without any modification to returned income, the Ld. AO's insistence for "stating the manner and substantiating the same" is simply superfluous and uncalled for in the face of clear-cut disclosure of manner of earning of "unaccounted income" by the appellant, and also in light of Mahendra C. Shah (supra). Such insistence of the AO and "non-compliance thereto" by the appellant pleading "sufficient compliance", has obviously not impacted the quantification of income and assessment thereof. 5.3 The fact that the Ld. AO himself has taxed the amount offered u/s 132(4) and further in the return u/s 153A, without contradicting or contesting the basis and q....
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....bove that returned u/s 1S3A or 139", the penalty is not sustainable. The operative portion from my order of Umesh C Patel (supra) is reproduced as under: ................7. Moreover, I also find that the proposition of law laid down in Kirit Dahyabhai (supra) to the effect that penalty, post-search, can be levied or sustained only on the income which has been assessed "over and above" that returned by the assessee u/s 153A after the search, in view of the specific provisions of s. 153A, and cannot be levied on "undisclosed income" already returned u/s 153A, has been followed by ITAT Ahmedabad in Sandip Navnitlal (supra) in the direct context of penalties both u/s 271(l)(c) read with explanation 5A and also u/s 271AAA, Respectfully following the same, also, it is to be further held that the Ld. AO erred in levying the penalty u/s 271AAA on the "undisclosed income" already returned in the income filed after search, and on this count also the levy of penalty is held not sustainable. 6. As there is no dispute with regard to the fact that immunity condition of 271AAA(2)(iii) is fulfilled by the appellant by way of payment of taxes with interest in the appeal under refe....