The DCIT, Central Circle-4,, Surat v. Shri Govindprasad G.Sarawagi(HUF), Surat

ITA 7/AHD/2013 | 2009-2010
Pronouncement Date: 25-10-2013 | Result: Dismissed

Appeal Details

RSA Number 720514 RSA 2013
Assessee PAN AAGHS8859F
Bench Ahmedabad
Appeal Number ITA 7/AHD/2013
Duration Of Justice 9 month(s) 23 day(s)
Appellant The DCIT, Central Circle-4,, Surat
Respondent Shri Govindprasad G.Sarawagi(HUF), Surat
Appeal Type Income Tax Appeal
Pronouncement Date 25-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 25-10-2013
Date Of Final Hearing 15-10-2013
Next Hearing Date 15-10-2013
Assessment Year 2009-2010
Appeal Filed On 02-01-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMADABAD BEFORE SHRI N. S. SAINI ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICIAL MEMBER ITA NO. 7/AHD/2013 ASSESSMENT YEAR :2009-10 THE DY. COMMISSIONER OF INCOME- TAX CENTRAL CIRCLE-4 SURAT. V/S . SHRI GOVINDPRASAD G SARAWAGI- HUF V-2131 SURAT TEXTILE MARKET RING ROAD SURAT. PAN NO. A A GHS8859F (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI O. P. BATHEJA SR. D.R. /BY RESPONDENT SHRI M. J. SHAH A.R. /DATE OF HEARING 15.10.2013 /DATE OF PRONOUNCEMENT 25.10.2013 O R D E R PER : SHRI N. S. SAINI ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-II AHMEDABAD DATED 04.10.2012. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL OF THE RE VENUE IS THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE PE NALTY OF RS. 75 70 000/- IMPOSED U/S. 271AAA OF THE INCOME TAX ACT 1961. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER LEVIED PENALTY OF RS. 75 70 000/- U/S.271AAA OF THE INCOME TAX ACT IN RESPECT OF UNDISCLOSED INCOME OF RS.7 75 00 000/- ON THE GROUN D THAT THE ASSESSEE DID NOT DESCRIBE THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED. THE ITA NO. 7/AHD/13 A.Y. 09-10 PAGE 2 ASSESSEE ALSO DID NOT GIVE ANY SPECIFIC DETAILS OF AMOUNT RECEIVED AND DID NOT SUBSTANTIATE THE MANNER IN WHICH SUCH INCOME HAS BE EN DERIVED. IT WAS FURTHER OBSERVED BY THE A.O. THAT THE ASSESSEE NEIT HER EXPLAINED THE MANNER OF DERIVING UNDISCLOSED INCOME DURING SEARCH OR DUR ING COURSE OF ASSESSMENT PROCEEDING. THE ASSESSING OFFICER FURTHER HELD THA T ASSESSEE DID NOT FULFILL THE CONDITIONS LAID DOWN U/S. 271AAA(2) OF THE IT ACT F OR GETTING IMMUNITY FROM PENALTY AND HE LEVIED PENALTY OF RS.75 70 000/-. 4. ON THE APPEAL BEFORE THE CIT(A) THE ASSESSEE SU BMITTED THAT PENALTY U/S. 271AAA IS LEVIABLE ONLY IN A CASE WHERE SEARCH PROCEEDING U/S. 132 OF THE ACT HAS BEEN INITIATED. IT WAS SUBMITTED THAT IN THE CASE OF THE ASSESSEE SUCH PROCEEDINGS NEVER TOOK PLACE U/S. 132 OF THE A CT. IT WAS FURTHER SUBMITTED BY FILING OF COPY OF THE RELEVANT PANCHNA MA DATED 20.01.2009 THAT THE NAME OF THE PERSONS IN WHOSE CASES SEARCH WARR ANTS WERE ISSUED WERE (A) SHRI GOVINDPRSAD G. SARAWAGI (B) SHRI RAKESHKUM AR G. SARAWAGI. IT WAS THEREFORE POINTED OUT THAT THE NAME OF THE AS SESSEE SHRI GOVINDPRASAD G. SARAWAGI HUF IS NOT STATED AGAINST THE COLUMN REQUIRING SPECIFICATION OF NAME OF THE PERSON IN WHOSE CASE SEARCH WARRANT WAS ISSUED. IT WAS FURTHER SUBMITTED THAT AS PER THE PROVISIONS U/S. 153A AND 153C WHENEVER THE UNDISCLOSED INCOME OF A PERSON OTHER THAN THE PERSO N SEARCHED U/S. 132 OF THE ACT FOUND AS A RESULT OF THE SEARCH PROCEEDINGS THEN IN THE CASE OF SUCH OTHER PERSON THE ASSESSMENT OF INCOME OF SIX SPECI FIED ASSESSMENT YEARS WILL BE MADE UNDER THE PROVISIONS OF SECTION 153A OF THE ACT. IT WAS ITA NO. 7/AHD/13 A.Y. 09-10 PAGE 3 THEREFORE SUBMITTED THAT EVEN IN SUCH A CASE NOWHE RE IT IS STATED IN THE RELEVANT PROVISIONS OF SECTIONS 153A AND 153C OF TH E ACT THAT UNDER SUCH CIRCUMSTANCES ALL THE PROVISIONS OF THE INCOME TAX ACT 1961 SHALL APPLY AS IF A SEARCH HAD TAKEN PLACE U/S. 132 OF THE ACT IN THE CASE OF SUCH OTHER PERSON. IT WAS FURTHER SUBMITTED THAT SUB-CLAUSE (2) OF EXP LANATION 5 TO SECTION 271(1)(C) OF THE ACT APPLICABLE TO SEARCH CONDUCTED BEFORE THE 1 ST JUNE 2007. THE CONDITIONS FOR CLAIMING IMMUNITY FROM PENALTY L EVIABLE U/S.271(1)(C) OF THE ACT APPLICABLE TO SEARCH CONDUCTED AFTER 1 ST JUNE 2007. 5. THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS MAD E BY THE ASSESSEE DELETED THE PENALTY. 6. LD. SR. D.R. SUPPORTED THE ORDER OF THE ASSESSIN G OFFICER. THE LD. A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A) A ND RELIED ON THE DECISION OF AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. RAJENDRA PRASAD DOKANIA REPORTED IN (2012) 32 CCH 260 AHD TRIB WHEREIN IT WAS HELD THAT: THUS ASSESSEE CLEARLY SPECIFIED THAT INCOME IS EAR NED BY WAY OF GETTING ON MONEY IN LAND DEALINGS. NOW COMING TO THE SECOND CONDITION THERE IS NO DISPUTE ABOUT THE FACT THAT NEITHER AT THE STAGE OF RECORDING OF STATEMENT OF THE ASSESSEE NOR AT TH E STAGE OF ASSESSMENT PROCEEDING ASSESS WAS ASKED EITHER BY T HE AUTHORIZED OFFICER OR BY THE A.O. THE SUBSTANTIATE THE MANNER IN WHICH THIS UNDISCLOSED INCOME WAS DERIVED. UNDER THESE CIRCUM STANCES THE ASSESSEE BE DEEMED TO HAVE DISCHARGED HIS ONUS OF S UBSTANTIATING THE MANNER IN WHICH THIS UNDISCLOSED INCOME WAS DER IVED BY HIM AND THEREFORE IT CANNOT BE SAID DURING PENALTY PROC EEDING THAT ASSESSEE DID NOT FULFILL THIS CONDITIONS. THERE IS NO DISPUTE ABOUT THE THIRD CONDITION AS ASSESSEE HAD PAID TAX WITH INTER EST ON THE ITA NO. 7/AHD/13 A.Y. 09-10 PAGE 4 UNDISCLOSED INCOME. SINCE THE ASSESSEE HAS FULFILL ED ALL THE THREE CONDITIONS AS LAID DOWN FOR EXEMPTION TO THE ASSES SEE FROM IMPOSITION OF PENALTY U/S 271AAA OF THE ACT. THE A.R. OF THE ASSESSEE SUBMITTED THAT NEITHER AT THE STAGE OF RECORDING STATEMENT OF ASSESSEE NOR AT THE STAGE OF ASSESSMEN T PROCEEDING THE ASSESSEE WAS ASKED BY THE AUTHORIZED OFFICER OR BY THE A.O. TO SUBSTANTIATE THE MANNER IN WHICH UNDISCLOSED INCOME WAS DERIVED. THEREFORE THE ASSESSEE WOULD BE DEEMED TO HAVE DISCHARGE HIS ONUS OF SUBSTANTIATING THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED BY HIM AND THEREFORE IT CANNOT BE SAID DURING THE PENALTY PROCEEDING THAT T HE ASSESSEE HAD NOT FULFILLED THIS CONDITION. THE A.R. FURTHER REFERRE D TO THE ASSESSMENT ORDER AND SUBMITTED THAT THE ASSESSING OFFICER IN THE ASSESSM ENT ORDER AT PAGE NO.1 PARA 2 HAS STATED THAT DURING THE YEAR UNDER CONSID ERATION THE ASSESSEE HAS EARNED RENT INCOME UNDER THE HEAD INCOME FROM HOUS E PROPERTY OTHER SOURCE AND INTEREST INCOME. IN RESPONSE TO THE NOT ICE THE A.R. OF THE ASSESSEE HAS FIELD DETAILS AND DOCUMENTS DURING THE ASSESSMENT PROCEEDING AS WELL AS WITH RETURN OF INCOME WHICH HAS BEEN SCR UTINIZED. THERE IS SUFFICIENT REPLY OF THE SOURCE OF DISCLOSED INCOME. HE THEREFORE SUBMITTED THAT IN VIEW OF THIS CATEGORICAL FINDING OF THE ASS ESSING OFFICER THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INITIATING PENALTY PRO CEEDING AND LEVYING PENALTY OF RS.75 70 000/- U/S. 271AAA OF THE ACT AND THE LD. C IT(A) RIGHTLY DELETED THE ADDITION. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE PENALTY ITA NO. 7/AHD/13 A.Y. 09-10 PAGE 5 LEVIED U/S. 271AAA OF RS.75 70 000/- BY THE A.O. W AS DELETED BY THE LD. CIT(A) BY OBSERVING AS UNDER: I HAVE ALSO PERUSED THE ENGLISH VERSION OF RELEVAN T QUESTIONS AND ANSWERS ALONGWITH COPY OF STATEMENTS RECORDED U/S.1 32(4) ON 20.01.2009 AND 21.01.2009 FROM SHRI MANOJ G.SARAWAG I & RAKESH G.SARAWAGI. IN ADDITION TO THE STATEMENT I HAVE A LSO PERUSED THE NOTICE ISSUED U/S.142(1) DATED 29.01.2010 14.06.20 10 AND 06.08.2010. FROM THE COPY OF THE STATEMENT AND NOTI CE ISSUED U/S.142(1) ON VARIOUS DATES IT IS CLEARLY FOUND AN D ESTABLISHED THAT NEITHER DURING THE SEARCH PROCEEDINGS NOR DURING TH E ASSESSMENT PROCEEDINGS ANY QUESTION WAS PUT FORWARD BEFORE TH E APPELLANT OR ITS MEMBERS TO DESCRIBE AND SUBSTANTIATE THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS EARNED. FROM THE DETAILED STATEMENT OF SHRI MANOJ SARWAGI & SHRI RAKESH SARAWAGI IT IS CLEAR THAT EXCESS STOCK OF GREY CLO TH AND FINISHED GOODS WERE CLAIMED TO BE BELONGING TO THEIR TRADING SECTION WHICH IS UNDER THE OWNERSHIP OF THE APPELLANT SHRI GOVINDPRA SAD SARAWAGI HUF. THE VARIOUS AMOUNTS WRITTEN IN THE SEIZED PAPE RS (ANNEXURE A-27) REPRESENTS THE DETAILS OF RECEIVABLES OF THE APPELLANT. THE UNDISCLOSED INCOME DISCLOSED AND ADMITTED ON ACCOUN T OF UNACCOUNTED STOCK OF GREY CLOTH FINISHED GOODS AND RECEIVABLES WERE ADMITTED IN THE HANDS OF THE APPELLANT HUF ONL Y. THE UNDISCLOSED INCOME WAS ADMITTED AS ADDITIONAL INCOM E OVER AND ABOVE ORDINARY BUSINESS INCOME AGAINST WHICH THE ME MBERS OF HUF SUBMITTED THAT NO SET OFF OF ANY UNABSORBED DEPRECI ATION OR CARRY FORWARD OF BUSINESS LOSS OR EXPENDITURE OF ANY NATU RE SHALL BE CLAIMED. IT CAN BE INFERRED FROM THE STATEMENTS OF THE MEMBERS OF THE HUF THAT THE INCOME WAS OFFERED ON ACCOUNT OF U NACCOUNTED TRADING AND BUSINESS OF HUF. THE APPELLANT HAS OFFE RED THE SAME ITA NO. 7/AHD/13 A.Y. 09-10 PAGE 6 INCOME OF RS.7 57 00 000/- AS BUSINESS INCOME AND T HE SAME HAS BEEN ASSESSED BY THE ACIT WITHOUT MAKING ANY FURTHE R ADDITION. THE ASSESSING OFFICER HAS CLEARLY OBSERVED IN THE ASSES SMENT ORDER THAT THERE IS SUFFICIENT REPLY OF THE SOURCE OF DISCLOSE D INCOME. THE APPELLANT HAS PAID TAX AND INTEREST DUE ON UNDISCLO SED INCOME OFFERED IN THE RETURN AND ASSESSED BY THE ASSESSING OFFICER AND THE SAME IS CONFIRMED BY THE ASSESSING OFFICER IN THE P ENALTY ORDER ALSO. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE IT IS HELD THAT THE UNDISCLOSED INCOME HAS BEEN ADMITTED BY TH E MEMBERS OF THE HUF IN THE STATEMENTS RECORDED U/S.132(4) OF TH E ACT AND THE MANNER OF EARNING THE INCOME HAS BEEN SPECIFIED IN THE STATEMENT RECORDED U/S. 132(4) OF THE ACT. THE DETAILS OF UND ISCLOSED INCOME IN THE FORM OF EXCESS STOCK OF GREY CLOTH FINISHED GO OD AND RECEIVABLES WERE ALSO FURNISHED IN THE STATEMENT RECORDED U/S.1 32(4) OF THE ACT. CLAUSE (II) LAYS DOWN THE SECOND CONDITION THAT ASS ESSEE SHOULD SUBSTANTIATE THE MANNER IN WHICH UNDISCLOSED INCOME HAS BEEN DERIVED. THE AUTHORISED OFFICER DID NOT ASK ANY SPE CIFIC QUESTION ON SUBSTANTIATING THE MANNER IN WHICH INCOME WAS DERIV ED IT IS FURTHER CLEAR THAT THE PRINCIPLES LAID DOWN BY THE HON'BLE HIGH COURTS IN THE CASES OF CIT V. MAHENDRA C. SHAH [2008] 299 ITR 305 (GUJ.) AND SECOND CIT V. RADHA KRISHNA GOEL [2005] 278 ITR 454 /[2006] 152 TAXMAN 290 (AIL.) ARE ALSO SQUARELY APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE . IN THE CASE OF CIT V. MAHENDRA C. SHAH HON'BLE JURISDICTIONAL HIGH COURT HAS OBSERVED THAT WHEN THE STATEMENT IS BEING RECORDED BY THE AU THORIZED OFFICER IT IS INCUMBENT UPON THE AUTHORIZED OFFICER TO EXPL AIN THE PROVISION OF EXPLANATION 5 IN ENTIRELY TO THE ASSESSEE CONCERNED AND THE AUTHORIZED OFFICER CANNOT STOP SHORT AT A PARTICULA R STAGE SO AS TO PERMIT THE REVENUE TO TAKE ADVANTAGE OF SUCH LAPSE IN THE STATEMENT. ITA NO. 7/AHD/13 A.Y. 09-10 PAGE 7 THE REASON IS NOT FAR TO SEEK. IN THE FIRST INSTANC E THE STATEMENT IS BEING RECORDED IN THE QUESTION AND ANSWER FORM AND THERE WOULD BE NO OCCASION FOR AN ASSESSEE TO STATE AND MAKE AVERM ENTS IN THE EXACT FORMAT STIPULATED BY THE PROVISIONS CONSIDERI NG THE SETTING IN WHICH SUCH STATEMENT IS BEING RECORDED. SECONDLY C ONSIDERING THE SOCIAL ENVIRONMENT IT IS NOT POSSIBLE TO EXPECT FRO M AN ASSESSEE WHETHER LITERATE OR ILLITERATE TO BE SPECIFIC AND TO THE POINT REGARDING THE CONDITIONS STIPULATED BY THE SECOND EXCEPTION W HILE MAKING STATEMENT UNDER SECTION 132(4). EVEN IF THE STATEME NT DOES NOT SPECIFY THE MANNER IN WHICH THE INCOME IS DERIVED IF THE INCOME IS DECLARED AND TAX THEREON PAID THERE WOULD BE SUBST ANTIAL COMPLIANCE NOT WARRANTING ANY FURTHER DENIAL OF THE BENEFIT. IN THE CASE OF CIT V. RADHA KRISHNA GOEL [2005] 278 ITR 454 THE HON'BLE ALLAHABAD HIGH COURT GAVE SIMILAR FINDINGS AND LAID DOWN SIMILAR PRINCIPLES AS UNDER.- ...FROM A PERUSAL EXPLANATION 5 IT IS EVIDENT THA T THE CIRCUMSTANCES WHICH OTHERWISE DID NOT ATTRACT THE PENALTY PROVISI ONS OF SECTION 271(1)(C) NOW BY A DEEMING PROVISION ATTRACT PENAL TY PROVISIONS. BUT AN EXCEPTION IS PROVIDED IN CLAUSE (2) OF EXPLANATI ON 5 WHERE THE DEEMING PROVISION WILL NOT APPLY IF DURING THE COUR SE OF SEARCH THE ASSESSES MAKES THE STATEMENT UNDER SUB-SECTION (4) OF SECTION 132 THAT THE MONEY BULLION JEWELLERY ETC. FOUND IN HI S POSSESSION HAS BEEN ACQUIRED OUT OF HIS INCOME WHICH HAS NOT BEEN DISCL OSED SO FAR IN HIS RETURN OF INCOME AND ALSO SPECIFIES IN THE STATEMEN T THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED AND PAYS THE TAX TOGETHER WITH INTEREST IF ANY IN RESPECT OF SUCH INCOME....UNDE R SECTION 132(4) OF THE ACT UNLESS THE AUTHORIZED OFFICER PUTS A SPECIFIC QUESTION WITH REGARD TO THE MANNER IN WHICH INCOME HAS BEEN DERIVED IT IS NOT EXPECTED FROM THE PERSON TO MAKE A STATEMENT IN THIS REGARD AND I N CASE IN THE STATEMENT THE MANNER IN WHICH INCOME HAS BEEN DERIV ED HAS NOT BEEN STATED BUT HAS BEEN STATED SUBSEQUENTLY IT AMOUNTS TO COMPLIANCE WITH ITA NO. 7/AHD/13 A.Y. 09-10 PAGE 8 EXPLANATION 5(2). IF THERE IS NOTHING TO THE CONTRA RY IN THE STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT IN THE AB SENCE OF ANY SPECIFIC STATEMENT ABOUT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED IT CAN BE INFERRED THAT SUCH UNDISCLOSED INCOME WAS DE RIVED FROM THE BUSINESS WHICH HE WAS CARRYING ON. THE OBJECT OF TH E PROVISION IS ACHIEVED BY MAKING THE STATEMENT ADMITTING THE NON- DISCLOSURE OF MONEY BULLION JEWELLERY ETC. THUS MUCH IMPORTAN CE SHOULD NOT BE ATTACHED TO THE STATEMENT ABOUT THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED. IT CAN BE INFERRED ON THE FACTS AND C IRCUMSTANCES OF THE CASE IN THE ABSENCE OF ANYTHING TO THE CONTRARY. T HEREFORE MERE NON- STATEMENT OF THE MANNER IN WHICH SUCH INCOME WAS DE RIVED WOULD NOT MAKE EXPLANATION 5(2) INAPPLICABLE.(P.454).' 5.3 AFTER GOING THROUGH THE STATEMENT RECORDED UNDER SECTION 132 (4) OF THE L.T. ACT AND THE NOTICES ISSUED U/S.142( 1) BY THE ACIT DURING THE ASSESSMENT PROCEEDINGS IT IS CLEAR THAT THE AUTHORIZED OFFICER THE CONCERNED ADIT(LNV) AND THE ASSESSING OFFICER HAS NOT RAISED ANY FURTHER QUERY REGARDING SUBSTANTIATING T HE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED AND THE PR INCIPLES LAID DOWN BY THE HONOURABLE GUJRAT HIGH COURT AND ALLAHA BAD HIGH COURT IT IS OBSERVED THAT THE HONOURABLE COURTS HA VE LAID DOWN THE PRINCIPLE THAT THE AUTHORIZED OFFICER IS TO EXPLAIN THE PROVISION TO THE ASSESSEE AND ASK THE RELEVANT QUESTIONS ON THE MANN ER IN WHICH THE UNDISCLOSED INCOME WAS EARNED AND IN THE PRESENT CA SE IT IS APPLICABLE FOR SECTION 271AAA INSTEAD OF EXPLANATIO N 5 OF SECTION 271(1). IN THE WHOLE THE STATEMENT RECORDED UNDER SECTION 132(4) ON 20-01-2009 & 21.01.2009 THE AUTHORIZED OFFICER HAS NOT ASKED ANY FURTHER QUESTION BUT WAS SATISFIED WITH THE MAN NER THE INCOME WAS EARNED BY THE ASSESSEE AND WAS SATISFIED ABOUT SUBSTANTIATING THE MANNER IN WHICH THE UN-DISCLOSED INCOME WAS EAR NED. ITA NO. 7/AHD/13 A.Y. 09-10 PAGE 9 CLAUSE (III) LAYS DOWN THE THIRD CONDITION REGARDIN G THE PAYMENT OF TAX ALONG WITH INTEREST ON UNDISCLOSED INCOME ADMIT TED IN THE COURSE OF SEARCH. IT IS UNDISPUTED FACT THAT THE TAX AND I NTEREST HAD BEEN PAID BY THE ASSESSEE. THE ASSESSING OFFICER HIMSELF STATED THE SAME IN THE PENALTY ORDER. ON THE BASIS OF PRINCIPLES LAID DOWN BY THE HONOURA BLE JURISDICTIONAL HIGH COURT AND BY THE ALLAHABAD HIGH COURT IN THE A BOVE CITED CASES AND THE DECISION OF ITAT 'D' BENCH AHMEDABA D IN THE CASE OF RAJENDRA PRASAD DOKANIA THE ASSESSEE CAN BE SAI D TO HAVE SUBSTANTIALLY DISCHARGED THE ONUS OF EXPLAINING AND SUBSTANTIATING THE MANNER OF EARNING UNDISCLOSED INCOME BECAUSE TH E ASSESSING OFFICER MADE ASSESSMENT OF DISCLOSURE MADE BY ASSES SEE ON THE BASIS OF ACTUAL INCOME AND NOT ON THE BASIS OF THE INVESTMENT/EXPENDITURE UNDER THE VARIOUS DEEMING PR OVISIONS. THE ASSESSEE HAS MADE DISCLOSURE OF UNACCOUNTED INCOME WHILE RECORDING STATEMENT UNDER SECTION 132(4) OF THE INC OME TAX ACT AND PAID THE TAXES WITH INTEREST. MOREOVER THE ASSESSI NG OFFICER IN THE ASSESSMENT ORDER PASSED U/S.143(3) OF THE ACT ACCE PTED THE RETURNED INCOME DECLARED BY THE ASSESSEE. THE RETUR NED INCOME INCLUDED DISCLOSURE AMOUNT OF RS.7 57 00 000/- MADE DURING SEARCH WHILE RECORDING STATEMENT U/S.132(4) OF THE ACT. TH E ASSESSING OFFICER HAS OBSERVED IN THE ASSESSMENT ORDER THAT T HERE IS SUFFICIENT REPLY OF THE SOURCE OF DISCLOSED INCOME THIS SHOWS THAT THE A.O. HIMSELF WAS SATISFIED ABOUT THE INCOME OFFERED IN R ETURN OF INCOME. IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CAS E AND THE PRINCIPLES LAID DOWN IN THE DECISIONS BY THE HON'BL E HIGH COURTS NARRATED ABOVE IN THIS ORDER AND FOLLOWING THE DEC ISION IN THE CASE OF RAJENDRA PRASAD DOKANIA BY THE ITAT D BENCH A HMEDABAD IN ITA. NO. 525/AHD/2012 DATED 04/05/2012 IT IS HELD THAT THE ITA NO. 7/AHD/13 A.Y. 09-10 PAGE 10 ASSESSING OFFICER WAS NOT JUSTIFIED IN LEVYING THE PENALTY OF RS.75 70 000/- U/S 271AAA OF THE ACT AS THE APPELLA NT'S CASE IS CLEARLY COVERED BY THE IMMUNITY PROVIDED U/S.271AAA (2) OF THE L.TACT AND HENCE THE PENALTY LEVIED IS HEREBY CANC ELLED. 8. LD. SR. D.R. COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE FINDING OF THE CIT(A). WE FIND THAT ORDER OF THE LD. CIT(A) FINDS SUPPORT FROM THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT AS QUOTED BY THE LD. CIT(A). IN THE ABOVE FACTS AND CIRCUMSTANCES WE DO NOT FIND ANY E RROR IN THE ORDER OF THE LD. CIT(A). HENCE THE ORDER OF THE LD. CIT(A) IS CONF IRMED AND APPEAL OF THE REVENUE IS DISMISSED. 9. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON FRIDAY THE 25 TH OF OCTOBER 2013 AT AHMADABAD. SD/- SD/- ( KUL BHARAT ) (N. S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ) ) 12( / DR ITAT AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ 8/ 1 ': ) 12( ;