TMI Blog2015 (4) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... t of undisclosed income has been made by the AO. He has further given a finding that AO was satisfied about the disclosed income offered in the return of income and the manner in which the income was derived. We thus find that Ld. CIT(A) by a detailed and reasoned order deleted the penalty, Revenue has not brought any material on record to controvert the findings of the CIT(A) or how the ratio of decisions relied by ld. CIT(A) not applicable to the present facts. In view of the aforesaid facts, we find no reason to interfere with the order of Ld. CIT(A). - Decided against the revenue. - ITA No. 2093/Ahd/2011 - - - Dated:- 26-2-2015 - Shri Shailendra Kr. Yadav And Shri Anil Chaturvedi JJ. For the Appellant : Shri M.K. Singh, Sr. D.R. For the Respondent : None ORDER Per : Anil Chaturvedi, ACCOUNTANT MEMBER:- This is the assessee s appeal against the order of Ld. CIT(A)-II, Ahmedabad dated 04-07-2011 for A.Y. 2008-09. 2. None appeared on behalf of the assessee though notice of hearing was served on the assessee. We therefore proceed to dispose of the appeal ex-parte qua the assessee on the basis of material on record. 3. The facts as culled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions of section 271AAA(2) are not fulfilled by the appellant. The three conditions provided in sub section (2) 271AAA are reproduced as under: (i) In the course of search, in a statement under subsection (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived; (ii) Substantiates the manner in which the undisclosed income was derived and (ii) Pays the tax together with interest, if any, in respect of the undisclosed income. Clause (i) lays down the first condition that undisclosed income should have been admitted by the assessee in the statement u/s 132(4) and assessee should specify the manner in which it has been derived. The key person of the group, Shri Jaiprakash K. Aswani in his statement recorded u/s 132(4) before the of the group, before Deputy DIT in course of search on 19, 20-02-2008, stated in reply to question no11, and disclosed total income of ₹ 20.23 crores out of which undisclosed income of ₹ 2.00 crores belonged to the asaessee company. In the same question the authorized Officer himself stated in these transactions it mainly appears that receipts of on-money from various resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplain the provision of explanation 5 in entirely to the assesaee concerned and the authorized officer cannot stop short at a particular stage so as to permit the revenue to take advantage of such lapse in the statement. The reason is not far to seek. In the first instance, the statement is being recorded in the question and answer form and there would be no occasion for an aasessee to state and make averments in the exact format stipulated by the provisions considering the setting in which such statement is being recorded. Secondly, considering the social environment it is not possible to expect from an assessee, whether literate or illiterate, to be specific and to the point regarding the conditions stipulated by the second exception while making statement under section 132(4). Even if the statement does not specify the manner in which the income is derived, if the income is declared and tax thereon paid, there would be substantial 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 Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision to the assessee and ask the relevant questions on the manner in which the undisclosed income was earned and in the present case it is applicable for section 271AAA instead of explanation 5 of Section 271(1). In the whole, statement recorded under section 132(4) on 19 20.2.2008 the authorized Officer has not asked any further question but was satisfied with the manner the income was earned by the assessee. Clause (iii) lays down the third condition regarding the payment of tax along with interest on undisclosed income admitted in the course of search. It is undisputed fact that the tax and interest had been paid by the assessee. The Assessing Officer himself stated the same in the penalty order. The assessee has made disclosure of unaccounted income while recording statement under section 132(4) of the Income tax Act and paid the taxes with interest. The disclosure was neither made against any money, bullion, jewellery or other valuable articles or things found during the course of search nor made against any entry in the books of accounts or other documents or transactions found in the course of search because no such assets or transactions were found during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue is now in appeal and has raised the following grounds:- 1 The Ld. CIT(A) has erred in law and on facts in deleting the penalty levied u/s. 271AAA of ₹ 20,00,000/- even though the assessee failed to fulfill the conditions prescribed u/s. 271AAA(2) of the Act. 6. Before us, Ld DR pointed to the various observations made by the AO in the penalty order and supported the order of AO. 7. We have heard the Ld. DR and perused the material available on record. We find that CIT(A) while deleting the penalty has noted that the conditions provided u/s. 271AAA(2) are required to be fulfilled so as to grant immunity to the asssessee from penalty. He has further noted that all the three conditions have been fulfilled by the assessee and further relying on the decision of Hon ble Gujarat High Court in the case of CIT vs. Mahendra C Shah (2000) 299 ITR 305 (Gujarat) and CIT vs. Radha Krishna Goel (2005) 278 ITR 454 had held that assessee had made disclosure of unaccounted income while recording statements u/s. 132(4) of the Act and had also paid the tax with interest. He has further given a finding that the AO in the assessment order passed u/s. 143(3) of the Act had accepted th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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