DCIT, Chandigarh v. Sh. Harmohinder Singh Chadha, Chandigarh

ITA 188/CHANDI/2015 | 2011-2012
Pronouncement Date: 30-04-2015 | Result: Dismissed

Appeal Details

RSA Number 18821514 RSA 2015
Assessee PAN AAOPC9351Q
Bench Chandigarh
Appeal Number ITA 188/CHANDI/2015
Duration Of Justice 2 month(s) 10 day(s)
Appellant DCIT, Chandigarh
Respondent Sh. Harmohinder Singh Chadha, Chandigarh
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2015
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 30-04-2015
Assessment Year 2011-2012
Appeal Filed On 18-02-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI T.R. SOOD ACCOUNTANT MEMBER ITA NO.188/CHD/2015 ASSESSMENT YEAR: 2011-12 THE DCIT VS. SH. HARMOHINDER SINGH CHADHA CENTRAL CIRCLE II H.NO. 114 SECTOR 18-A CHANDIGARH CHANDIGARH PAN NO. AAOPC9351Q (APPELLANT) (RESPONDENT) APPELLANT BY : SH. MANJIT SINGH RESPONDENT BY : SH. VINEET KRISHAN DATE OF HEARING : 29/04/2015 DATE OF PRONOUNCEMENT : 30/04/2015 ORDER PER T.R.SOOD A.M. THE APPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER DATED 30/12/2014 PASSED BY THE CIT(A)-3 GURGAON. 2. IN THIS APPEAL REVENUE HAS RAISED THE GROUND WHI CH IS AS UNDER: (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER PROVISIONS OF LAW THE LD. (CIT(A)(C) IS CORRECT IN DELETING TH E PENALTY OF RS. 12 50 000/- U/S 271AAA DESPITE THE FACT THAT THE ASSESSEE FAILED TO SUBSTANTIATE THE MANNER IN WHICH UNDISCLOSED INCOME HAS BEEN DERIVED ONE OF T HIS BEING MANDATORY CONDITIONS WHICH NEEDS TO BE FULFILLED AS PER SUB-S ECTION 2 OF SECTION 271AAA ? 3. AFTER HEARING BOTH THE PARTIES WE FIND THAT A SE ARCH WAS CONDUCTED IN THE CHADHA GROUP OF CASES WHEREIN INCRIMINATING DOCUMEN TS WERE FOUND AND SEIZED. DURING THE SEARCH ASSESSEE MADE SURRENDER O F RS. 1.25 CRORES WHICH HAS BEEN INCLUDED IN THE RETURN OF INCOME. THE SURRENDE R WAS ACCEPTED. HOWEVER 2 SINCE ASSESSEE FAILED TO DISCLOSE THE MANNER OF EAR NING OF SURRENDERED INCOME PENALTY PROCEEDINGS UNDER SECTION 271 AAA WERE INIT IATED. 4. IN RESPONSE TO THE SHOW CAUSE NOTICE FOR LEVY OF PENALTY IT WAS MAINLY SUBMITTED THAT SINCE ASSESSEE HAS ADMITTED THE UNDI SCLOSED INCOME AND SURRENDERED THE SAME AND HAS INCLUDED THIS SURRENDE RED INCOME IN THE RETURN OF INCOME AND PAID TAXES THEREFORE ASSESSEE WAS ENTITL ED TO IMMUNITY PROVIDED UNDER SECTION 271 AAA. AFTER CONSIDERING THESE SUBM ISSIONS AO AGAIN OBSERVED THAT SINCE ASSESSEE HAS NOT SUBSTANTIATED THE MANNE R OF EARNING INCOME THEREFORE PENALTY @ 10% AMOUNTING TO RS. 12.50 LACS WAS LEVIED UNDER SECTION 271 AAA. 5. ON APPEAL VARIOUS DECISIONS OF CHANDIGARH BENCHE S OF THE TRIBUNAL INCLUDING THE DECISION IN CASE OF ACIT CC PATIALA VS. GIAN CHAND CUPTA /MOHINDER GUPTA / SANJAY KUMAR GUPTA IN ITA NO. 100 5 / 1006 / 1007/CHD/2013 WERE RELIED FOR SEEKING IMMUNITY. LD CIT(A) FOLLOWI NG THE DECISION IN CASE OF ACIT CC PATIALA VS. GIAN CHAND GUPTA AND OTHERS DECISION S DELETED THE PENALTY. 6. BEFORE US LD. DR STRONGLY SUPPORTED THE ORDER OF AO. 7. BEFORE LD. CIT(A) VARIOUS ORDERS WERE CITED INCL UDING DECISION OF MUMBAI BENCH OF THE TRIBUNAL IN CASE OF ACIT VS. KANAKIA S PACES PVT. LTD. ITAT NO. 6763/MUM/2011. 8. ON THE OTHER HAND LD. COUNSEL SUPPORTED THE IMPU GNED ORDER AND SUBMITTED THAT ISSUE SQUARELY COVERED BY THIS DECIS ION OF TRIBUNAL IN CASE OF SUNIL KUMAR BANSAL VS. DCIT CENTRAL CIRCLE-I IN ITA NO. 874 & 875/CHD/2013. 3 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND WE FIND THAT IDENTICAL ISSUES WERE DECIDED BY THE TRIBUNAL IN CA SE OF SUNIL KUMAR BANSAL VS. DCIT CENTRAL CIRCLE-I (SUPRA) VIDE PARA 8 WHICH IS AS UNDER: 8 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFULL Y AND FIND THAT HON'BLE GUJARAT HIGH COURT IN CASE OF CIT V. MAHENDRA C. SHAH (SUPRA) HAS MADE FOLLOWING OBSERVA TIONS IN THIS REGARD. WHEN THE STATEMENT IS BEING RECORDED BY THE AUTHOR IZED OFFICER IT IS INCUMBENT UPON THE AUTHORIZED OFFICER TO EXPLAIN TH E 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 TAKE ADVANTAGE OF SUCH A LAPSE IN THE ST ATEMENT. THE REASON IS NOT FAR TO SEEK. IN THE FIRST INSTANCE THE STA TEMENT IS BEING RECORDED IN THE QUESTION AND ANSWER FORM AND THERE WOULD BE NO OCCASION FOR AN ASSESSEE TO STATE AND MAKE AVERMENTS IN THE EXACT F ORMAT STIPULATED BY THE PROVISIONS CONSIDERING THE SETTING IN WHICH SUC H STATEMENT IS BEING RECORDED. SECONDLY CONSIDERING THE SOCIAL ENVIRONM ENT IT IS NOT POSSIBLE TO EXPECT FROM AN ASSESSEE WHETHER LITERATE OR ILL ITERATE TO BE SPECIFIC AND TO THE POINT REGARDING THE CONDITIONS STIPULATE D BY THE SECOND EXCEPTION WHILE MAKING STATEMENT U/S 132(4). EVEN IF THE STATEMENT DOES NOT SPECIFY THE MANNER IN WHICH THE INCOME IS DERIV ED IF THE INCOME IS DECLARED AND TAX THEREON PAID THERE WOULD BE SUBS TANTIAL COMPLIANCE NOT WARRANTING ANY FURTHER DENIAL OF THE BENEFIT. FURTHER THIS ISSUE CAME UP FOR CONSIDERATION OF THE CHANDIGARH BENCH OF THE TRIBUNAL IN CASE OF DCIT V. AMARJIT GOYAL AND OTHERS ITAS NO. 1080 1081 & 1082/CHD/2013. FOLLOWING ISSUE WAS DECIDED VIDE PAR A 5 WHICH IS AS UNDER: 5 AFTER CONSIDERING THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD WE FIND THAT IDENTICAL ISSUES CAME UP FOR CONSIDERATION OF THE TRIBUNAL IN ITAS NO. 1005/CHD/2013 IN CASE OF A CIT V. GIAN CHAND GUPTA 1006/CHD/2013 IN CASE OF ACITV V. MOHI NDER GUPTA AND 1007/CHD/2013 IN CASE OF ACIT V. SANJAY KUMAR GOYAL AND THE ISSUES WERE DECIDED AGAINST THE REVENUE FOLLOWING T HE ORDER OF THE TRIBUNAL IN ITAS NO. 1003 & 1004/2013 IN CASE OF MU NISH KUMAR GOYAL AND HARISH KUMAR SINGLA VIDE PARAS 4 TO 11 WHICH RE AD AS UNDER: 4 AFTER CONSIDERING THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD WE FIND THAT IDENTICAL ISSUES CAME UP FOR CONSIDERATION OF THE TRIBUNAL IN ITAS NO. 1003 & 1004/2013 IN CASE O F MUNISH KUMAR GOYAL AND HARISH KUMAR SINGLA WHICH WERE ADJUDICATE D VIDE PARAS 8 TO 13 WHICH IS AS UNDER: 8 WE HAVE GONE THROUGH THE RIVAL SUBMISSIONS CAREFU LLY. THE LD. CIT(A) HAS DECIDED THIS ISSUE VIDE PARA 5 WHICH IS AS UNDER: I HAVE CONSIDERED THE BASIS OF PENALTY IMPOSED BY THE AO AND THE ARGUMENTS OF THE AR ON THE ISSUE. THE PERUSAL OF THE PROVISIONS OF SECT ION 271AAA MAKE IT CLEAR THAT THE PENALTY CAN BE LEVIED ON UNDISCLOSED INCOME OF THE SPECIFIE D YEAR IF THE CONDITIONS SPECIFIED IN SUB SECTION (2) OF SECTION 271AAA ARE NOT SATISFIED . IT THEREFORE FOLLOWS THAT FIRST THING TO DETERMINE IS WHAT IS THE AMOUNT OF UNDISCLOSED INCO ME UNDER THE GIVEN CIRCUMSTANCES. THE CONCEPT OF UNDISCLOSED INCOME HAS BEEN CLEARLY DEFINED BY EXPLANATION TO SECTION 271AAA AND THE SAME READS AS UNDER:- UNDISCLOSED INCOME MEANS- I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRES ENTED EITHER WHOLLY OR PARTLY BY ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ART ICLE 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 A) NOT BEEN RECORDED ON OR BEFORE THE DATE OF SEARCH I N THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PREVIOUS YEAR; OR 4 B) OTHERWISE NOT BEEN DISCLOSED TO THE CHIEF COMMISSIO NER OR COMMISSIONER BEFORE THE DATE OF SEARCH; OR II) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPRE SENTED 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 THE SPE CIFIED PREVIOUS YEAR WHICH IS FOUND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED;. THE PERUSAL OF ABOVE DETAILED DEFINITION SHOWS THAT IT IS EXHAUSTIVE DEFINITION AND THERE IS CLEAR IDENTIFICATION OF THE INCOME REPRESENTED EIT HER WHOLLY OR PARTLY BY ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG OR ANY ENTRY IN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OF TRANSACTIONS FOUND IN THE COURSE OF SEARCH UNDER SECTION 132. IT IS SEEN THAT THERE IS CLEAR AND DIRECT ASSOCIATION BET WEEN THE INCOME ON ONE HAND AND ASSETS / DOCUMENTS ON THE OTHER HAND FOUND DURING T HE COURSE OF SEARCH. IT FOLLOWS THAT IF CERTAIN INCOME IS NOT REPRESENTED BY ANY ASSETS/DOC UMENTS/ENTRY FOUND DURING THE SEARCH THE SAME WOULD NOT BE COVERED UNDER THE DEF INITION OF UNDISCLOSED INCOME BUT WOULD INVITE PENALTY PROCEEDINGS U/S 271(1)(C) ON T HE FULFILLMENT OF OTHER REQUISITE CONDITIONS. THIS MEANS THAT ENTIRE DISCLOSURE OF IN COME AT THE TIME OF SEARCH OPERATION MAY NOT FALL UNDER THE DEFINITION OF UNDISCLOSED IN COME IF IT COULD NTO BE RELATABLE TO SOME ASSETS/DOCUMENTS/ENTRY FOUND DURING THE COURSE OF S EARCH OPERATION. IT ALSO MEANS THAT IF THE AO DURING THE COURSE OF SEARCH OPERATION. IT AL SO MEANS THAT IF THE AO DURING THE COURSE OF SEARCH ASSESSMENT PROCEEDINGS MAKES CERTA IN ADDITIONS INDEPENDENT OF THE INCRIMINATING MATERIAL/DOCUMENTS FOUND DURING THE C OURSE OF SEARCH OPERATION THEN SUCH AN ASSESSED INCOME WOULD NOT INVITE PENALTY PROCEED INGS U/S 271AAA BUT UNDER SECTION 271(1)(C). IT ALSO MEANS THAT INITIATION OF PENALTY PROCEEDINGS WOULD DEPEND UPON THE NATURE OF THE INCOME ASSESSED AND THERE COULD BE PE NALTY PROCEEDINGS U/S 271AAA AS WELL AS 271(1)(C) FOR THE SAME ASSESSMENT YEAR HOW EVER IN RESPECT OF DIFFERENT INCOME. THE AO IN THE PENALTY ORDER HAS CLEARLY ACCEPTED THAT D ISCLOSURE OF INCOME BY THE ASSESSEE TO THE TUNE OF RS. 3 80 12 500/- IS NOT REPRESENTED BY ANY ASSETS/DOCUMENTS FOUND DURING THE COURSE OF SEARCH OPERATION AND HAS ALSO OBSERVED TH AT THE SAME WAS PART OF THE UNDISCLOSED INCOME JUST BECAUSE THIS DISCLOSURE HAD COME DURING THE COURSE OF SEARCH AND WAS THEREFORE AS A RESULT OF THE SEARCH. THERE IS A CLEAR ACCEPTANCE OF THE FACT THAT THE SAID DISCLOSURE IS NOT WITH REFERENCE TO ANY AS SETS/DOCUMENTS FOUND DURING THE COURSE OF SEARCH. IT IS ONLY BECAUSE THE SAID DISCLOSURE H APPENED DURING THE SEARCH THAT THE SAME HAS BEEN CLUBBED IN THE DEFINITION OF UNDISCLOSED I NCOME REQUIRING THE ASSESSEE TO FULFILL THE CONDITION AS SPECIFIED IN SUB SECTION (2) OF 27 1AAA. I AM OF THE CLEAR VIEW THAT INCOME TO THE EXTENT OF RS. 3 80 12 500/- DOES NOT COME UN DER THE DEFINITION OF UNDISCLOSED INCOME AS DEFINED UNDER SECTION 271AAA AND THEREFORE NO PE NALTY U/S 271AAA COULD BE LEVIED. THE SECOND ASPECT OF THE PENALTY ORDER PASSED BY TH E ASSESSING OFFICER IS THAT WHETHER THE ASSESSEE HAD FULFILLED THE REQUISITE CONDITIONS AS SPECIFIED UNDER SUB SECTION (2) OF SECTION 271AAA. THE ASSESSING OFFICER HAS ACCEPTED THAT THE ASSESSEE HAD MADE THE DISCLOSURE UNDER SECTION 132(4) DURING THE COURSE OF SEARCH OP ERATION AND SPECIFIED THE MANNER OF EARNING SUCH INCOME AND IT ALSO SUBSTANTIATED THE S AME ON THE BASIS OF SEIZED DOCUMENTS TO THE TUNE OF RS. 19 87 500/-. THE AOS VIEW THAT THE ASSESSEE IS REQUIRED TO SUBSTANTIATE THE QUANTUM OF UNDISCLOSED INCOME DOES NOT SEEM LOG ICAL FROM THE BARE READING OF THE PROVISIONS OF SECTION 271A SUB SECTION (2). THE REQ UIREMENT OF THE LAW IS THAT THE ASSESSEE SHOULD STATE THE MANNER OF EARNING UNDISCLOSED INCO ME AND ALSO SUBSTANTIATE THE SAME. IT WOULD NOT BE CORRECT INTERPRETATION OF THE PROVISIO NS TO STRETCH THE REQUIREMENT TO SUBSTANTIATE THE QUANTUM AS WELL. THERE IS NO DOUBT WITH REGARD TO THE FACT THAT THE ASSESSEES MANNER OF EARNING UNDISCLOSED INCOME BEI NG FINANCING ACTIVITIES HAS BEEN SUBSTANTIATED BY THE SEIZED DOCUMENTS. THE REQUIREM ENT OF THE LAW HAS THEREFORE BEEN FULFILLED AS THE ASSESSEE HAD STATED THE MANNER OF EARNING UNACCOUNTED INCOME SUBSTANTIATING THE SAME AND ALSO PAID THE DUE TAXES ALONG WITH THE INTEREST WITHIN THE SPECIFIED TIME LIMIT. EVEN IF THE ENTIRE INCOME BY ANY LOGIC IS INCLUDED IN THE DEFINITION OF UNDISCLOSED INCOME THE PENALTY UNDER SECTION 271AA A WOULD NOT BE LEVIABLE BECAUSE OF FULFILLMENT OF REQUIREMENT OF SUB SECTION (2) OF SE CTION 271AAA. 9 WE FURTHER FIND THAT SECTION 271AAA READS AS UNDE R: 271AAA. (1) THE ASSESSING OFFICER MAY NOTWITHSTANDING ANYT HING 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 JUNE 2007 43 [BUT BEFORE THE 1ST DAY OF JULY 2012] THE ASSESSEE SHALL PAY BY WAY OF PENALTY IN ADDITION T O TAX IF ANY PAYABLE BY HIM A SUM COMPUTED AT THE RATE OF TEN PER CENT OF THE UNDISCL OSED 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 UN DER SUB-SECTION (4) OF SECTION 132 ADMITS THE UNDISCLOSED INCOME AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; 5 (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) NO PENALTY UNDER THE PROVISIONS OF CLAUSE (C) O F SUB-SECTION (1) OF SECTION 271 SHALL BE IMPOSED UPON THE ASSESSEE IN RESPECT OF THE UNDISCL OSED INCOME REFERRED TO IN SUB-SECTION (1). (4) THE PROVISIONS OF SECTIONS 274 AND 275 SHALL SO FAR AS MAY BE APPLY IN RELATION TO THE PENALTY REFERRED TO IN THIS SECTION. EXPLANATION.FOR THE PURPOSES OF THIS SECTION (A) 'UNDISCLOSED INCOME' MEANS (I) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPR ESENTED 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 A SEARCH UNDER SECTION 132 WHICH HAS (A) NOT BEEN RECORDED ON OR BEFORE THE DATE OF SEAR CH 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 CHIEF COMMI SSIONER OR COMMISSIONER BEFORE THE DATE OF SEARCH; OR (II) ANY INCOME OF THE SPECIFIED PREVIOUS YEAR REPR ESENTED EITHER WHOLLY OR PARTLY BY ANY ENTRY IN RESPECT OF AN EXPENSE RECORDED IN THE BOOK S OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO THE SPE CIFIED PREVIOUS YEAR WHICH IS FOUND TO BE FALSE AND WOULD NOT HAVE BEEN FOUND TO BE SO HAD THE SEARCH NOT BEEN CONDUCTED; (B) NOT RELEVANT----------------- 10 PLAIN READING OF SUB-SECTION WOULD SHOW THAT IF THE ASSESSEE DURING THE COURSE OF SEARCH IN A STATEMENT ADMITS T O SOME UNDISCLOSED INCOME AND PAY TAXES ON THE SAME THEN P ENALTY CANNOT BE LEVIED IN TERMS OF SUB-SEC (1) OF THIS SE CTION. IN THE CASE BEFORE US THE AMOUNT OF RS. 4 CRORES WHICH WAS SUR RENDERED DURING SEARCH HAS BEEN DECLARED BY THE ASSESSEE IN THE RE TURN AND TAXES HAVE BEEN PAID ACCORDINGLY. THEREFORE THE ASSESSEE IS NORMALLY ENTITLED FOR THE IMMUNITY PROVIDED IN SEC 271AAA IT SELF. HOWEVER THE REVENUE HAS RAISED FURTHER DISPUTE THAT WHETHER THE ASSESSEE HAS DISCLOSED THE MANNER IN WHICH INCOME HAS BEEN E ARNED. IN THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER FOLLO WING QUESTIONS AND ANSWERS HAVE BEEN EXTRACTED: Q. DO YOU WANT TO SAY ANYTHING MORE ? ANS. I VOLUNTARILY SURRENDER A SUM OF RS. 4.00 CRO RE (RS. FOUR CRORES) FOR CURRENT FINANCIAL YEAR I.E. 2009-10 RELEVANT TO A.Y. 2010-11 IN ANY ( SHOULD BE MY) INDIVIDUAL CAPACITY. THEY COVER ALL THE DISCREPANCIES IN THE SEIZED PAPERS DU RING THE COURSE OF SEARCH PROCEEDINGS. 11 THEREFORE CLEARLY THE REVENUE HAS NOT ASKED THE ASSESSEE TO DISCLOSE THE MANNER IN WHICH SUCH INCOME WAS EARNED . IN ANY CASE ONCE THE INCOME IS SURRENDERED DURING THE COURSE OF SEARCH U/S 132(4) IT CAN BE SAFELY ASSUMED THAT DURING DISCUSS ION THE ASSESSEE MUST HAVE DISCLOSED THE MANNER. IN ANY CASE WE FIND FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE THA T IF THE EXPLANATION OF THE ASSESSEE HAS BEEN ACCEPTED FOR A SUM OF RS. 1987500 OUT OF TOTAL SURRENDER OF RS. 4 CRORES THEN SAME MANNER SHOULD HAVE BEEN ACCEPTED FOR THE WHOLE OF THE AMOU NT. IT IS NOT CLEAR FROM THE PENALTY ORDER HOW EXPLANATION FOR RS . 1987500 WAS ACCEPTED. IN ANY CASE THE LD. CIT(A) HAS CONSIDERED ALL THESE ISSUES IN DETAIL AND THE D.R. FOR THE REVENUE HAS N OT REFERRED TO ANY MATERIAL OR DECISION WHICH CAN CONTROVERT THE FINDI NGS OF THE CIT(A). IN THE FOLLOWING CASES WHICH HAVE BEEN RELI ED ON BY THE LD. COUNSEL FOR THE ASSESSEE WHICH WAS CLEARLY HELD THA T PENALTY IS NOT LEVIABLE. FOLLOWING THE ABOVE ORDER WE DECIDE THE ISSUES AGAI NST THE REVENUE. FROM ABOVE IT AS WELL AS THE OBSERVATION OF HON'BLE GUJARAT HIGH COURT IN CASE OF CIT V. MAHENDRA C. S HAH (SUPRA) IT BECOMES CLEAR THAT IF NO QUESTION IS ASK ED 6 DURING THE STATEMENT RECORDED U/S 132(4) THEN THE ASSESSEE CANNOT BE EXPECTED TO FURTHER SUBSTANTIAT E THE MANNER OF EARNING OF INCOME. SINCE TAXES HAVE ALREA DY BEEN PAID THEREFORE IN OUR OPINION PENALTY COULD NOT HAVE BEEN LEVIED. ACCORDINGLY WE SET ASIDE THE ORD ER OF LD. CIT(A) AND DELETE THE PENALTY. IN THE PRESENT CASE ALSO REVENUE NEVER ASKED ANY QU ESTION REGARDING MANNER OF EARNING THE INCOME THEREFORE FOLLOWING ABOVE ORD ER WE DECIDE THIS ISSUE AGAINST THE REVENUE. 10. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 30/04/2015 SD/- SD/- (BHAVNESH SAINI) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30/04/2015 AG COPY TO: THE APPELLANT THE RESPONDENT THE CIT TH E CIT(A) THE DR