9911796707
TMI Blog2019 (6) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances referred to above, this appeal fails and is hereby dismissed. - Decided in favour of assessee. - R/TAX APPEAL NO. 19 of 2019 - - - Dated:- 10-6-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Appellant (s) : MRS KALPANAK RAVAL (1046) For The Opponent (s) : None ORAL ORDER ( PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. This appeal under Section 260-A of the Income Tax Act, 1961 (for short the Act ) is at the instance of the Revenue and is directed against the order dated 28.06.2018 passed by the Income Tax Appellate Tribunal, Surat Bench, Surat in ITA No.1356/AHD/2014/SRT for the assessment year 2011-12. By the impugned order the Appellate Tribunal dismissed the appeal preferred by the Revenue and thereby affirmed the order passed by the Commissioner of Income Tax (Appeals)-II, Ahmedabad in CIT(A)-II/CC.1/432/2013-14. The Revenue has proposed the following substantial questions of law : i) Whether on the facts and in the circumstances of the case and in law, the Hon ble ITAT erred in confirming the order of the CIT(A) del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the partner of the firm was recorded u/s. 132(4) of the Act. He admitted in the statement that the pages of diary found and seized, contained entries of taxable income of ₹ 18.00 crores, relating to various firms which were not recorded in the books of accounts. It is seen that out of total ₹ 18.00 crores, an amount of ₹ 8.10 crores was disclosed in the case of the appellant firm. It has been admitted by Shri Dilipbhai K. Ravani that the pages of the diary which was found and seized, contained entries of net taxable income which was not recorded on the books of accounts and hence, the said unaccounted authorized Officer did not ask the question regarding the manner in which the undisclosed income was derived and did not seek any evidence for substantiating the manner of earning the undisclosed income. 5.2 It is seen that as per clause (i) of sub section (2) of section 271AAA, the first condition for immunity from penalty is that the undisclosed income should have been admitted by the assessee in the statement u/s.132(4) and the manner in which such income has been derived should also be specified by the assessee. The Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, in my considered view, the second condition also stands fulfilled in the case of the appellant firm. 5.4 As regards the third condition as envisaged in clause (iii) of sub section (2) which says that the tax together with interest if any, in respect of undisclosed income should be paid by the assessee for getting immunity from the penalty, the Assessing Officer has stated in the penalty order itself that full tax including interest on the disclosed income has been paid and reflected in the return of income and this condition was also satisfied. 2.3 The Revenue being dissatisfied with the order passed by the CIT preferred appeal before the Appellate Tribunal. The Appellate Tribunal dismissed the appeal holding as under : 11. We have considered the facts and perused the material available on record and also gone through the case laws cited by the parties. We find that during the course of search and seizure carried out in the case of assessee s group a statement u/s. 132(4) of the Act was recorded on 20.01.2011 from Shri Dilipbhai K. Ravani wherein, he, on behalf of all 3 firms had made a disclosure of undisclosed incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised Officer, the assessee is not expected to specify on his own the manner in which the income was earned and to substantiate the same as held by the Hon ble Gujarat High Court in the case of CIT vs. Mahendra C. Shah [2008] 299 ITR 305 (Guj). The Ld. Counsel, further placed reliance in the case of CIT vs. Radha Kishan Goel [2005] 278 itr 454 [2006] 152 taxman 290 (all) of Hon ble Allahabad High Court which was followed by the Hon ble Gujarat High Court in the above referred case while deriving the explanation 5 to section 271(1)(c), which is broadly on the same line as Hon ble Gujarat High Court in the case of Mahendra C. Shah has observed that there is no prescription about the point of time when the tax had to be paid qua the amount of income declared in the statement u/s. 132(4) of the Act. It was further pointed out that even after making these specific observations tax liability is to treat the conclusion of the assessment proceedings as outer limit for making payment of tax and interest. 15. In the light of the above decision it is clearly discernable that sub-section(2) of section 271AAA cannot be applicable when assessee is not subjected to the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o penalty under the provisions of clause (c) of sub-section (1) of section 271 shall be imposed upon the assessee in respect of the undisclosed 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 represented, 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 search 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 Commissioner or Commissioner before the date of search; or ( ii) any income of the specified previous year repr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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