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TMI Blog2018 (4) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The ratio emanating out of those decisions was that if the search party doesn't put question to the assessee about the source of income, any adverse inference for the levy of penalty under section 271AAA, cannot be taken. No contrary decision by the Revenue has been shown to us. - Decided against revenue - I.T.A. No. 5576/Mum/2015 - - - Dated:- 13-4-2018 - Shri Shamim Yahya, AM And Shri Ram Lal Negi, JM Appellant by : Ms. Pooja Swarup Respondent by : None ORDER Per Shamim Yahya, A. M. This appeal by the Revenue is directed against order of the ld. Commissioner of Income Tax (Appeals) dated 28.08.2015 and pertains to assessment year 2009-10. 2. The grounds of appeal read as under: 1. Whether on the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs which has not been accepted by the Revenue and appeal u/s 260 A has already been filed and admitted vide ITL 85/2013? 4. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was right in attempting to bring out the difference between the provisions of Section 271(l)(c ) those of Section 271AAA when only the latter provisions were applicable and the conditions thereunder remained unfulfilled. 5. The appellant prays that the order of the Commissioner of Income Tax (Appeals) on the above ground be set aside and that of the ITO / AC / DC be restored. The appellant craves leave to amend or alter any grounds or to add a new ground, which may be necessary. 3. Brief facts of the case leading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t dated 30.12.2010. 4. During the course of penalty proceedings, a fresh penalty notice U/S.271AAA was issued to the assessee on 28.02.2013. The ld. Ld. Counsel of the assessee filed his reply vide letter dated 15.03.2013 which is reproduced on pages 3-5 of the impugned order. The Assessing Officer considered the submissions of the assessee but did not find these to be tenable. In the opinion of the Assessing Officer, though the assessee had admitted undisclosed income of ₹ 7,00,353/- in his statement recorded u/s.132(4) of the Act, he had failed to specify as well as substantiate the manner in which the undisclosed income was derived. In view of the above, the Assessing Officer found that the assessee s case was fit for imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.132(4) in the course of search on account of investment in gold and diamond jewellery, wrist watches, household appliances and expenditure on foreign travel during the A.Y. under consideration. The said income is stated to have been offered to tax in his return under the head 'Income from Other Sources'. The A.O. is found to have accepted this position and assessed the said income as 'Income from Other Sources'. There is no dispute that the appellant has paid due tax in respect of the amount disclosed during the course of search. It is a matter of record that in his statement recorded during the course of search, the appellant had explained that since he was not able to substantiate the acquisition of gold and diamond jewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration of the Hon'ble Allahabad High Court in the case of Radha Kishan Goel (supra) wherein it has been held that the exception under clause (2) of Explanation 5 to Section 271(l)(c) appears to be to provide an opportunity to the assessee to make a clean and fair confession and to surrender Ms income and also to deposit the tax and interest thereon which may result in an agreed assessment. While elaborating the true import of Explanation 5{2) below Section 271(l)(c), it has been held that under 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. It has also been held that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch, no question was put to the appellant by the authorized officer explaining the provisions of Section 271AAA{2) and requiring him to specify as well as substantiate the manner in which such undisclosed income had been derived. Under these circumstances, the appellant cannot be put into a disadvantageous position owing to a lapse or omission on part of the authorized officer who recorded the statement of the appellant. There is no specific procedure/format prescribed in the Act for specifying and substantiating the manner of earning undisclosed income. In view of the above discussion, it is held that the appellant had satisfied the conditions laid down u/s.271AAA(2) and will be deemed to have discharged his onus of specifying and substa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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