TMI Blog2019 (7) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... liged to specifically ask the assessee to explain the manner in which the undisclosed income had been derived and the failure on the part of the Assessing Officer in not inquiring specifically should not go against the assessee and the assessee should not be penalised. The Revenue took notice of the statement of Shri Prajapati, a Director of the company, recorded under Section 132(4) of the Act during the search and seizure. In such statement, no such question had been asked to the assessee. We are convinced with the findings recorded by the Tribunal. In our opinion, there is no substantial question of law involved in the present appeal. - R/TAX APPEAL NO. 273 of 2019 - - - Dated:- 15-7-2019 - MR J. B. PARDIWALA AND MR A. C. RA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinguishable from the facts involved in this case vizaviz the difference in fulfillment of criteria as prescribed under explanation 5 of Section 271(1)(c) of the Income Tax Act and that of the criteria as per subsection (2) of Section 271AAA of the Income Tax Act? 3 The Tribunal, in its impugned order, while concurring with the findings of the CIT(A) in deleting the penalty, observed as under: 6. In view of findings recorded by the AO in the penalty order and conclusion drawn by the ld. CIT(A) in the first appellate order, as reproduced herein above, we observe that admittedly the appellant has offered the total of unaccounted income of ₹ 9.29 crores by AY 201112 in the statement recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other required condition has also been fulfilled by the assessee. 8. Now, we further evaluate the conclusion of the ld. CIT(A), wherein he has relied on the ratio of the decision of decision Hon ble Jurisdictional High Court in the case of Mahendra C. Shah (supra) and decision of Hon'ble High Court of Allahabad in the case of CIT vs. Shri Radha Kishan Goel (supra) and other two orders of ITAT in the case of Sulochana A, Agarwal (supra) and Shri Pramodkumar Jain (supra). In the case of Mahendra C. Shah (supra), their lordship speaking for the Jurisdictional High Court held that the AO has to specifically ask the assessee to explain the manner in which the undisclosed income has been derived and if he has not done so, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to support conclusion drawn by the ld. CIT(A) and the same does not want to press the same hence, the same are dismissed as not pressed. 4 Thus, the findings of fact recorded by the two revenue authorities is that the assessee offered the total unaccounted income of ₹ 9.29 Crores for the assessment year 2011-12 in his statement recorded during the search and seizure operation u/s. 132(4) of the Act. The Tribunal, by placing reliance on the decision of this Court in the case of CIT vs. Mahendra C. Shah [99 ITR 305 (Guj)] , took the view that the Assessing Officer is obliged to specifically ask the assessee to explain the manner in which the undisclosed income had been derived and the failure on the part of the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee to be specific and to the point regarding the conditions stipulated by exception No.2 while making statement under section 132(4) of the Act. The Court went on to observe that if the income is declared and tax is paid thereon, there would be substantial compliance. It is this principle which the CIT (Appeals) and the Tribunal have applied in the present case. As noted, CIT (Appeals) was specific that no question was put to the assessee while recording statement under section 132 regarding the manner of deriving the undisclosed income. Counsel for the Revenue, however, vehemently contended that in the present case, the penalty was being imposed under section 271AAA of the Act and the statutory provisions enabling the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make a disclosure of the undisclosed income but also to specify the manner, in which, the income has been derived and to substantiate the same. It was therefore, contended that the earlier decisions of this Court in case of Commissioner of Income Tax vs. Mahendra C. Shah and the decision of Allahabad High Court in case of Commissioner of Income Tax vs. Radha Kishan Goel rendered in backdrop of different statutory provisions would not automatically apply. 14. We do not reject this contention totally. However, insofar as the facts of the present case are concerned, the field would still be held by the decision of this Court in case of Commissioner of Income Tax vs. Mahendra C. Shah (supra). Subsection (2) of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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