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TMI Blog2017 (2) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... d in confirming the levy of penalty without appreciating that the appellant had admitted to the undisclosed income during the course of search and specified the manner in which the same was derived and consequently paid the taxes thereon, therefore it is not a fit case u/s Appellant by: Mrs. Sanjukta Chowdhury, AR Respondent by: Mr. Maurya Pratap, DR 271AAA and the penalty so imposed may be deleted. Also it is stated that the ld. CIT(A) failed to appreciate that in the statement u/s. 132(4) it was conditionally prayed that no penalty be levied and full co-operation was extended by the appellant; hence it is not a fit case for the levy of penalty u/s. 271AAA and the same may be deleted. Without prejudice to above, it is stated that the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case for the levy of penalty u/s 271AAA. It is stated that the case of the assessee falls in sub 3 sec.(2) of section 271AAA. She further clarifies that during the recording of statement, the Director Shri. Prakash K. Jain has explained about the manner of accumulation of unaccounted cash and its sources. Shri Jain had clarified that they had not accounted this cash accumulation, as it was in the middle of the year. Reliance was placed by her on the decision in the case of CIT vs. ASK Enterprises 230 ITR (Bom.); CIT vs. Shubhagamal Mahavirchand 142 ITR 747 (Mad); CIT vs. Smt. P.K.Noorjehan 237 ITR 570(SC); P.K.Jain vs. DCIT 149 TTJ (Ctk)(UO) 36; Ashok Kumar Sharma vs. DCIT 149 TTJ (Ctk)(UO) 33; ACIT vs. M/s. Kanakia Spaces Pvt. Ltd. (ITA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent of "undisclosed income" of the "specified previous year") can be avoided. 6.1 As pointed out by the Hon'ble Supreme Court in Anantharam Veerasinghaiah & Co vs. CIT (1980) 123 ITR 457,462 (SC), the findings recorded in the assessment order constitute good evidence in the penalty proceedings but those findings cannot be regarded as conclusive for the purpose of the penalty proceedings. 6.2 The only dispute here is that the assessee has failed to substantiate the manner in which the undisclosed income was derived. We find that during the course of search in the premises of the assessee, cash amounting to Rs. 1,48,00,000/- was found out which Rs. 1,47,00,000/- was seized. In the return of income filed in response to notice u/s 153A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d u/s. 271AAA of the I.T. Act,1961 of Rs. 55,00,000/- without appreciating the fact that assessee failed to substantiate the manner in which undisclosed income was derived so as to qualify for non-levy of penalty within the meaning of sub-section(2) of section 271AAA of the I.T. Act, 1961." The Tribunal followed the judgement of the Hon'ble Gujarat High Court in CIT vs. Mahendra C. Shah (299 ITR 305) and that of Hon'ble Allahabad High Court in CIT vs. Radha Kishan Goel (2005) 278 ITR 454 (All.) and dismissed the appeal filed by the Revenue. 6.4 Also a similar issue arose in Sita Ram Gupta vs. ACIT [2014] 48 taxmann.com 327 (Delhi - Trib.). The Tribunal held that "Where Assessing Officer having completed assessment, passed a penalty order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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