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Sita Ram Gupta, 35 Link Road, 2nd Floor, Lajpat Nagar III, New Delhi. Vs. ACIT, Central Circle-I, Faridabad.
July, 02nd 2014
                   IN THE INCOME TAX APPELLATE TRIBUNAL
                        DELHI BENCHES : F : NEW DELHI

                   BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER
                                      AND
                    SHRI J.S. REDDY, ACCOUNTANT MEMBER

                             ITA No.1835/Del/2013
                           Assessment Year : 2009-10

                       Stay Application No.433/Del/2013
                            (ITA No.1835/Del/2013)
                          Assessment Year : 2009-10


Sita Ram Gupta,                     Vs.    ACIT,
35 Link Road, 2nd Floor,                   Central Circle-I,
Lajpat Nagar III,                          Faridabad.
New Delhi.
PAN : ABOPG7349F


                              ITA No.1836/Del/2013
                            Assessment Year : 2009-10

Mohinder Kumar Gupta,               Vs.    ACIT,
35 Link Road, 2nd Floor,                   Central Circle-I,
Lajpat Nagar III,                          Faridabad.
New Delhi.
PAN : AAXPG8999B

  (Appellant)                                  (Respondent)


                Assessee By           :   Shri Ashwani Kumar, CA
                Department By         :   Shri M.B. Reddy, CIT, DR


                                    ORDER

PER A.D. JAIN, JUDICIAL MEMBER:

      These are assessees' appeals for Assessment Year 2009-10, against
the orders dated 22.1.2013 and 21.1.2013, passed by the Ld. CIT (Central),
                                                          ITA Nos.1835 & 1836/Del/2013
                                                                   Stay No.433/Del/2013

Gurgaon. The issue involved being similar in both the cases, they are being
disposed of by this composite order. The facts are being taken from ITA
No.1835/Del/2013 with reference to which the matter was argued. The
grounds of appeal read as under:-

     "1.   That the Learned Assessing Officer as well as Learned
     Commissioner of Income Tax (Appeal) have erred while
     imposing/upholing the imposition of penalty of Rs.64,27,700/-
     (Rs.55,61,700/- in ITA No.1836/Del/2013) u/s 271AAA of the Income
     Tax Act, 1961, in spite of the fact that the Assessee has admitted the
     undisclosed income in the statement recorded u/s 132 (4) (II). The
     assessee has also specified the manner in which such income has been
     derived (III) The Assessee has also substantiates the manner in which
     the undisclosed income was derived by way of furnishing cash book,
     ledger, profit & loss account, balance sheet, tax audit report etc (IV)
     and pays the tax/dues.

     2.    That the       Learned Assessing Officer as well as Learned
     Commissioner of      Income Tax (Appeal) have erred while holding that
     the particulars of   transactions, i.e., names of the parties is required to
     be disclosed to       comply with the conditions of substantiates the
     manner.

     3.    That the Learned Assessing Officer as well as Learned
     Commissioner of Income Tax (Appeal) are also wrong arithmetically.
     The total income disclosed in this case was Rs.640.00 Lakhs and the
     maximum penalty imposable u/s 271AAA comes to Rs.64.00 Lakhs.




     4.     That the Learned Assessing Officer as well as Learned
     Commissioner of Income Tax (Appeal) have failed to appreciate the
     facts of the case, the evidences produced in support of these facts. The
     Learned Assessing Officer has misinterpreted the provision of the
     Section 271AAA. The section requires the specification of the manner
     and not the particulars of the parties of the transactions. Further the
     Learned Assessing Officer has also failed to appreciate that the
     Assessee has categorically substantiated the manner by way of
     preparing the books of accounts and obtaining the Tax Audit Report."

2.   The facts are that in this case, a search and seizure operation was
conducted on 29.1.2009 covering the business premises of the assessee. The
assessee submitted that the return filed for the instant assessment year u/s
139(1) of the Act on 30.6.2009 declaring total income of ` 6,46,60,107/- be
considered as return filed in response to Section 153A. Assessment was
completed u/s 153B r.w.s. 143 (3) of the Income Tax Act at a total income of
`6,49,36,707/- on 31.12.2010. While completing the assessment, penalty

                                           2
                                                    ITA Nos.1835 & 1836/Del/2013
                                                             Stay No.433/Del/2013

proceedings u/s 271AAA of the Act was initiated in respect of surrender of `
6,40,00,000/- made by the assessee on account of cash found at different
places belonging to the assessee. The penalty was levied u/s 271AAA at `
64,00,000/-.

3.    While levying the penalty, the AO observed, inter alia, that in the
present case, penalty u/s 271AAA of the IT Act can be avoided, if all the
following conditions are satisfied:-

      a) If the assessee in a statement u/s 132 (4) in the course of the
         search admits the undisclosed income;
      b) Further, he specifies the manner, in which such income has been
         derived;
      c) He substantiates the manner, in which the undisclosed income was
         derived;
      d) He pays the tax, together with interest, if any, in respect of the
         undisclosed income.
4.    The AO further observed that in the present case, the assessee did not
satisfy all of the above conditions of Section 271AAA (2) of the Act; that in
his reply, the assessee had admitted that in his statement recorded u/s 132
(4) of the Act, the income, as had been declared in the return filed; that he
stated that he had substantiated the manner in which the undisclosed
income was derived; that this statement was totally wrong, since during the
assessment proceedings, vide letter dated 28.10.10 the assessee had been
asked to give the details of land transactions with names and addresses of
the persons from whom the land had been purchased and to whom the land
had been sold; that the assessee did not file any detail in response; that
further, from the verification of the bank account of the assessee, it had
been found that during the financial year, the assessee had made cash
deposits of ` 2.45 crores in SBI, Nizamuddin, New Delhi and of ` 1.75 crore in
J&K Bank, Mandi Govindgarh, but no source with evidence had been filed
during the assessment proceedings; that the assessee had explained that

                                       3
                                                    ITA Nos.1835 & 1836/Del/2013
                                                             Stay No.433/Del/2013

the source of the cash deposited in the banks was from land deals, but no
details of land transactions had been filed; that from the verification of the
entries recorded in the diaries seized during the search, the location and
ownership of the land was not ascertained, nor the names and addresses of
the sellers and purchasers had been disclosed by the assessee for cross
verification; that thus, the assessee had neither specified the manner, nor
substantiated the manner, in which such income had been derived; and that
therefore, the provisions of Section 271AAA of the Act were clearly attracted.


5.    Vide the impugned order, the ld. CIT (A) dismissed the appeal of the
assessee, confirming the levy of penalty. It was observed that though in his
statement recorded u/s 132 (4) of the Act, the assessee had admitted the
undisclosed income, he had not stated as to how this undisclosed income
had been derived; that the details of each transaction, and all the persons
involved had not been disclosed; that the manner in which the undisclosed
income had been derived, had also not been substantiated; that when he
was asked to furnish the evidence regarding these admitted transactions,
the assessee had stated that the dealings were in cash and the transactions
stood completed; that this statement was not sufficient; that cash of `
7,20,90,395/- had been found at the premises of the assessee, apart from
incriminating documents containing transactions and sale/purchase of land;
that therefore, something more was required on the part of the assessee to
elucidate the manner of earning such a large income not disclosed in his
return of income; and that therefore, the provisions of Section 271AAA of the
Act stood correctly applied. Applying `Dy. CIT vs. Pioneer Marbles & Interiors
(P) Ltd. (2012) 144 TTJ (Kol) 663, the ld. CIT (A) held that the assessee had
not discharged the onus of substantiating the manner in which the income
had been derived, due to which the condition laid down in Section 271AAA
(2) (ii) remained unfulfilled.




                                      4
                                                         ITA Nos.1835 & 1836/Del/2013
                                                                  Stay No.433/Del/2013

6.     The ld. Counsel for the assessee, challenging the impugned order, has
contended that the ld. CIT (A) has erred in upholding the imposition of
penalty levied on the assessees u/s 271AAA of the Act; that this despite the
fact that the assessee had admitted the undisclosed income in the statement
recorded u/s 132 (4) of the Act; that the assessee had also specified the
manner in which such income had been derived; that the assessee had also
substantiated the manner in which the undisclosed income had been
derived, by way of furnishing the cash book, ledger, Profit & Loss Account,
Balance Sheet, Tax Audit Report, etc.; that the assessee had also paid the
due taxes; that the ld. CIT (A) has erred in confirming that the particulars of
the transactions, i.e., the names of the parties is to be disclosed in order to
comply with the conditions qua the substantiation of the manner in which the
undisclosed income was derived; that the provisions of Section 271AAA of
the Act has been misinterpreted by the ld. CIT (A); that it has not been
considered that Section 271AAA requires the specification of the manner in
which the undisclosed income was derived and not the particulars of the
parties to the transactions; that it has not been taken into consideration that
by preparing the books of account and obtaining the Tax Audit Report, and
filing the same, the assessee had fully substantiated the manner in which
the undisclosed income was derived. The ld. Cousel for the assessee has
placed reliance on the following case laws:-
     1. `DCIT vs. Shri Inderchand Surajmal Bothra', ITA No.139/PN/2010
     2. `Shri Pramod Kumar Jain & M/s JRC Resources (P) Ltd. vs. DCIT', (2013)
       33 taxmann.com 651 (Cuttack Trib.)
     3. `Shri Ashok Kumar Shar & Ors vs. DCIT' (2013) 33 TAXMANN.COM 652
       (Cuttack Trib.)
     4. `Mothers   Pride   Education   Personna   Pvt.     Ltd.   vs.   DCIT',   (ITA
       No.3372/Del/2011)
     5. `Sulochanadevi A. Agarwal vs. DCIT' (ITA No.1052/Ahd/2012.
     6. `CIT vs. Mahendra C. Shah', (2008) 299 ITR 305 (Guj)
     7. `CIT vs. Radha Kishan Goel' (2005) 278 ITR 454 (All)

                                        5
                                                       ITA Nos.1835 & 1836/Del/2013
                                                                Stay No.433/Del/2013

     8. `Smt. Raj Rani Gupta vs. DCIT', (ITA No.3371/Del/2011)
     9. `Concrete Developers vs. ACIT', (2013) 34 taxmann.com 62 (Nagpur
       Trib.)
     10.        `Neerat Singal vs. ACIT' (ITA No.337/Del/2013.


7.     Per contra, the ld. DR has placed strong reliance on the impugned
orders. It has been pointed out that during the search, cash amounting to `
7,20,90,395/- was found from the residence and lockers of the assessee and
that on query, the assessee had submitted that he had surrendered ` 640
lacs as against an amount of ` 540 lacs earned as profit from land
transactions. It has been submitted that the statement recorded u/s 132 (4)
of the Act was not that of the assessee but of his son. Drawing attention to
page 57 of the assessee's paper book (`APB' for short), the ld. DR has
pointed out that in the chart showing the bifurcation of the amount of
income surrendered, as filed before the AO in the assessment proceedings,
in the column "particular source of income, if any", the assessee had merely
stated that he had "earned this money by way of undertaking transactions
of purchase & sales of land/agricultural lands. In all such cases written
documents are not available. Furthermore, the entire transactions was in
cash. The modus operandi            normally employed was to enter into an
agreement for purchase and even before the final execution of the document
transferred the amount by way of direct agreement between the original
seller and the purchaser. And the difference on these facts is taken as
income." It has been thus contended by the ld. DR that so, nowhere was the
manner of deriving the undisclosed income explained by the assessee; that
no details were given; that whereas u/s 271C of the Act the rigor of penalty is
300%, qua Section 271AAA, such rigor is only of 10%; that therefore, what is
applicable for Section 271 (1)(c) of the Act cannot be held applicable for
cases falling u/s 271AAA thereof. In this manner, according to the ld. DR, the
levy of penalty in these cases has correctly been upheld by the ld. CIT (A).
The ld. DR, has accordingly, prayed for dismissal of both the appeals.

                                          6
                                                         ITA Nos.1835 & 1836/Del/2013
                                                                  Stay No.433/Del/2013

8.    We have heard the parties and have perused the record. The issue
before us is as to whether indeed, as held by the authorities below and as
canvassed before us by the ld. DR also, penalty u/s 271AAA of the Act is
leviable on the assessee and has been correctly imposed, for the default of
not substantiating the manner in which the undisclosed income was derived
by the assessee, the condition mandated by the provisions of Section
271AAA (2) (ii).


9.    As available from the penalty order as well as the order under appeal,
the relevant portion of the statement of Shri Mohinder Kumar Gupta, the
assessee in ITA No.1836/Del/2013 and son of Shri Sita Ram Gupta, the
assessee in ITA No.1835/Del/2013, as recorded on 20.02.2009 is as follows:-

      "Ques2.      While lifting the restraint order u/s 132 (3) put on almirah
      on 30.01.2009 besides three boxes of jewellery, some clothes and a
      diary (Varindavan 1994), notebook (Neelgagan) has been found in the
      presence of two witnesses. While recording the statement, Smt.
      Mahima Gupta has expressed her ignorance about the contents of the
      diary/notebook and thenature of entries recorded there in the same
      have been seized andmarked as Annexure A-1 & A-2. I am showing you
      the same. Please state as to whom this diary and note book belong to?

      Ans: I have seen both the diary and the notebook. They are rough
      records as it appears. The Note book, i.e., Annexure A-1 contains
      transactions in the handwriting of my father, Sh. Sita Ram Gupta and
      the Annexure A-2, i.e., Diary Varndavan 1994. Contains certain noting
      under my hand. I confirm that these belong to my father and my self
      respectively.

      Ques.3:    Please explain the nature of entries recorded in diary and
      note book wherein entries running into lacs of rupees as cash received
      payment have been recorded?

      Ans: The noting relate to the transactions of sale and purchase of
      land/agricultural land/farmhouse, etc. in the both annexures. In fact,
      the transaction in the Annexure A-2, at page-5 shows that Star Wire
      has paid Rs.200 lakhs for the purchase of 25 acres agricultural land at
      village Prithla The. Palwal Distt. Faridabad. The rate agreed upon is
      Rs.56 lakhs per acre. The said land has been sold in two parts, five
      acres aldn @ Rs.75 lacs per acre and 20 acre land was sold @ Rs.70
      lalcs per acre. The transaction was completed. The Profit earned at
      Rs.375 lacs only in cash. The other transactions are also of the same
      nature.

                                         7
                                                            ITA Nos.1835 & 1836/Del/2013
                                                                     Stay No.433/Del/2013

      Ques.4 Do you have any evidence that these transaction relate to
      sale/purchase of land i.e. if any agreement to sale, sale/purchase deed
      available with you?

      Ans: No. The dealings were in cash and the transactions stands
      completed."

10.   It is evident on record that in the return filed for the year under
consideration, the assessee had declared income of ` 6,46,60,000/-. An
amount of ` 6.40 crores was surrendered. The income was assessed at `
6,49,39,700/-, or, say, at around the income declared.


11.   It is correct, as, again, patent on record that the particulars of the
transactions, i.e., the names and addresses of the parties to the transactions
and the details of the land/s transacted in were not disclosed by the
assessee. The question is as to whether still the assessee can be said to
have substantiated the manner in which the undisclosed income was
derived.


12.   In `CIT vs. Radha Kishan Goel' (supra) (CLPB 41-47), it has been, inter
alia, held as follows:-

      "8.    Section 132 (4) of the Act reads as follows:

             "(4) The authorized officer may, during the course of the
             search of seizure, examine on oath any person who is
             found to be in possession or control of any books of
             account, documents, money, bullion, jewellery or other
             valuable article or thing and any statement made by such
             person during such examination may thereafter be used
             in evidence in any proceedings under the Indian Income-
             tax Act, 1922 (11 of 1922), or under this Act.

             Explanation. ­ For the removal of doubts, it is hereby
             declared that the examination of any person, under this
             sub-section may be not merely in respect of any books of
             account, other documents or assets found as a result of
             the search, but also in respect of all matters relevant for
             the purposes of any investigation connected with any
             proceedings under the Indian Income-tax Act, 1922 (11 of
             1922), or under this Act."



                                         8
                                                   ITA Nos.1835 & 1836/Del/2013
                                                            Stay No.433/Del/2013

9.     From a perusal of Explanation 5 it is evident that in
circumstances which otherwise did not attract the penalty provisions of
section 271 (1)(c) of the Act, now a deeming provision was introduced
as to attract the penalty provisions to those cases as well. But an
exception is provided in clause (2) of Explanation 5 where the deeming
provision will not apply if during the course of search the assessee
makes the statement under sub-section (4) of section 132 of the Act
that the money, bullion, jewellery, etc., found in his possession has
been acquired out of his income which has not been disclosed so far in
his return of income to be furnished before the expiry of time specified
in section 139 of the Act and also specifies in the statement the
manner in which such income has been derived and pays the tax
together with interest, if any, in respect of such income. The exception
appears to be to provide an opportunity to the assessee to make a
clean and fair confession and to surrender his income and also to
deposit the tax and interest thereon which may result in an agreed
assessment. The paramount intention appears to be that in the case of
fair and clean confession and surrender of his income, during the
course of search further litigation may be avoided and the Revenue
may get the tax and interest, etc., at an earliest and the assessee may
be saved from further litigation.

10.    Under section 132 (4) of the Act, it is the authorized officer, who
examines on oath any person, who is found to be in possession or
control of any books of account, documents, money, bullion, jewellery
or other valuable article or thing, therefore, it is for the authorized
officer to record the statement in his own way. Therefore, it is not
expected from the person to state those things, which are not asked by
the authorized officer.




11.    It is a matter of common knowledge, which cannot be ignored
that the search is being conducted with the completed team of the
officers consisting of several officers with the police force. Usually
telephone and all other connections are disconnected and all ingress
and egress are blocked. During the course of search person is so
tortured, harassed and put to a mental agony that he loses his normal
mental state of mind and at that stage it cannot be expected from a
person to preempt the statement required to be given in law as a part
of his defence.

12.1 In these circumstances, we are of the view 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 and in
case in the statement the manner in which income has been derived
has not been stated but has been stated subsequently, that amounts
to e compliance with Explanation 5 (2) of the Act. We are also of the
opinion that in case there is nothing to the contrary in the statement
recorded under section 132 (4) of the Act, in the absence of any
specific statement about the manner in which such income has been
derived, it can be inferred that such undisclosed income was derived

                                    9
                                                        ITA Nos.1835 & 1836/Del/2013
                                                                 Stay No.433/Del/2013

      from the business which he was carrying on or from other sources.
      The object of the provision is achieved by making the statement
      admitting the non-disclosure of money, bullion, jewellery, etc. Thus, we
      are of the opinion that much importance should not be attached to the
      statement about the manner in which such income has been derived. It
      can be inferred on the facts and circumstances of the case, in the
      absence of anything to the contrary. Therefore, mere non-statement of
      the manner in which such income was derived would not make
      Explanation 5 (2) inapplicable."

13.   The above observations of their Lordships were made with reference to
penalty u/s 271(1)(c) of the IT Act.

14.   In `CIT vs. Mahendra C. Shah', (2008) 299 ITR 305 (Guj) (CLPB 30-40),
again, considering the penalty u/s 271 (1)(c) of the Act, following `Radha
Kishan Goel' (supra), it was held:-

      "15. Insofar as the alleged failure on the part of the assessee to
      specify in the statement under section 132 (4) of the Act regarding the
      manner in which such income has been derived, suffice it to state that
      when the statement is being recorded by the authorized officer it is
      incumbent upon the authorized officer to explain the provisions of
      Explanation 5 in entirety to the assessee concerned and the authorized
      officer cannot stop short at a particular stage so as to permit the
      revenue to take advantage of such a 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 assessee to state and make averments in the exact
      format stipulated by the provisions considering the setting in which
      such statement is being recorded, as noted by Allahabad High Court in
      case of Radha Kishan Goel (supra). 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 Exception No.2 while making statement under
      section 132 (4) of the Act. The view taken by the Tribunal as well as
      Allahabad High Court to the effect that 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 under Exception No.2
      in Explanation 5 is commendable."

15.   In `Neerat Singal' (supra) (CLPB 60-77), following `Radha Kishan Goel'
(supra) and `Mahendra C. Shah' (supra), penalty levied u/s 271AAA of the Act
was deleted. While doing so, it was held, inter alia, that:



                                        10
                                                         ITA Nos.1835 & 1836/Del/2013
                                                                  Stay No.433/Del/2013

      "16. In view of above facts of the present case wherefrom it is evident
      that during the course of search proceedings the authorized officer of
      the department had not raised any specific query regarding the
      manner in which the undisclosed income has been derived and on the
      contrary the assessee has tried to explain the earning of the
      undisclosed income in question in its reply during the course of
      recording of his statement u/s 132(4) of the Act and thereafter. We
      thus respectfully following the ratio of above cited decisions of Hon'ble
      Allahabad High Court and Hon'ble Gujarat High Court hold that in
      absence of query raised by the authorized officer during the course of
      recording of statement u/s 132 (4) about the manner in which the
      undisclosed income has been derived and about its substantiation, the
      AO was not justified in imposing penalty u/s 271AAA of the Act
      specially when the offered undisclosed income has been accepted
      and due tax thereon has been paid by the assessee. We thus while
      setting aside orders of the authorities below in this regard direct the
      AO to delete the penalty of Rs. 12,50,00,000/- levied u/s 271AAA of the
      Act. The ground is accordingly allowed."

16.   In `Neerat Singal', (supra) (CLPB 60-77), in the search at the residential
premises of the assessee, certain documents relating to transactions in
properties undertaken by the assessee were found and seized. As per these
documents, the assessee had an outstanding sum of ` 3 crore and ` 6 crores
from various persons, which was duly disclosed as additional income for AY
2010-11, while making statement u/s 132 (4) of the Act. Additionally, the
assessee had paid in cash a sum of ` 17,86,57,781/-, for purchase of land,
which was also declared as additional income for AY 2010-11, while making
statement u/s 132 (4) of the Act. In the said statement the assessee had
admitted that he had entered into various forward/speculative and property
transactions during the concerned period. In view of this, an income of ` 125
crores arising out of the said transactions was declared in the statement
recorded at the time of the search. This included the said amount as
undisclosed. Subsequently, the taxes due thereon were also paid and the
same income as that declared in the return of income filed was also
accepted by the department.

17.   The   facts   in   `Neerat    Singal'   (supra)   are,   mutatis    mutandis,
undisputedly, exactly similar to those present in the appeals before us now.


                                         11
                                                             ITA Nos.1835 & 1836/Del/2013
                                                                      Stay No.433/Del/2013

Therein       also,   the   manner   of   deriving   the   undisclosed     income    was
substantiated without giving the details of the transactions and the names
and addresses of the parties to the transactions. In both the matters, the
declared income was accepted as such by the department itself. In both the
matters, due taxes were paid. In both the matters, surrenders were made. In
both the matters, what was inquired of the assessees was duly replied to by
them.     The answer to the question of specifying the manner in which the
undisclosed income had been derived and substantiated, was not rejected by
the AO. In both the matters the authorized officer did not ask any other
specific question of the assessees. No decision contrary to the above
decisions has been cited before us.

18.     Sections 271AAA (1) and (2) of the Act reads as follows:-

        (1)   The Assessing Officer may, notwithstanding anything contained
        in any other provisions of this Act, direct that, in a case where search
        has been initiated u/s 132 on or after the 1st day of June, 2007 but
        before the 1st day of July, 2012, the assessee shall pay by way of
        penalty, in addition to tax, if any, payable by him, a sum computed at
        the rate of ten percent of the undisclosed income of the specified
        previous year.

        (2)     Nothing contained in sub-sec. (1) shall apply if the assessee, -

                (i)    In the course of the search, in a statement under sub-
                section (4) of Section 132, admits the undisclosed income and
                specified the manner in which such income has been derived;

                (ii) Substantiates the manner in which the undisclosed
                income was derived; and

                (iii) Pays the tax, together with interest, if any, in respect of
                the undisclosed income."

19.     Thus, evidently, penalty u/s 271AAA is not leviable if an assessee, in
his statement recorded during the search u/s 132 of the Act, admits the
undisclosed income, specifies and substantiates the manner in which it has
been derived and pays the taxes due thereon, together with interest. Here,
undisputedly, the assessee has paid due tax on the admitted undisclosed
income. The question of specifying the manner in which the undisclosed

                                             12
                                                    ITA Nos.1835 & 1836/Del/2013
                                                             Stay No.433/Del/2013

income was derived, stood duly answered by the assessee before the
authorities. The same was accepted by the AO, without variation, this fact
itself evidencing the assessee having passed the test of Section 271AAA of
the Act. Then, there is no specific format/procedure prescribed in the Act for
specifying and substantiating an undisclosed income. The statement of the
assessee, specifying the manner in which the undisclosed income was
derived and substantiated, did not face any rebuttal or rejection at the hands
of the AO. As per the statement recorded (which statement, though not of
the assessee in ITA No.1835/Del/2013, was of his son, i.e., the assessee in
ITA No.1836/Del/2013 and was ratified by him, as pointed out by the ld.
Counsel for the assessees before us), it had been admitted that the assessee
had entered into various transactions of sale/purchase of land during the
concerned period. The income arising out of the said transactions was
declared. This included the undisclosed amount. Later, due taxes thereon
were also paid.

20.    Besides, in `Mothers Pride Education Personna Pvt. Ltd.' (supra)
(authored by one of us ­ the ld. AM) (CLPB 16-21), again, `Radha Kishan Goel'
(supra) and `Mahendra C. Shah' (supra) have been followed to delete the
penalty levied u/s 271AAA of the Act.

21.    `Radha Kishan Goel' (supra) and `Mahendra C. Shah' (supra) have also
been followed in `Smt. Raj Rani Gupta' (CLPB 48-53), `Concrete Developers'
(supra) (CLPB 54-59) and `Smt. Sulochanadevi A. Agarwal' (supra) (CLPB 23-
29).

22.    For the above discussion, we hold that the assessee has substantiated
the manner in which the undisclosed income was derived and that being so,
the condition laid down by Section 271AAA (2) (ii) has been duly met. We
hold that therefore, the ld. CIT (A) erred in deciding this issue against the
assessee.




                                        13
                                                             ITA Nos.1835 & 1836/Del/2013
                                                                      Stay No.433/Del/2013

23.       Consequently, the grievance of the assessee is found to be justified
and is accepted as such.

24.       As   stated   at   the   beginning    of   this   order,   the    facts   in   ITA
No.1836/Del/2013 are, mutatis mutandis, exactly similar to those in ITA
No.1835/Del/2013. Hence, our discussion on the matter shall apply equally
for ITA No.1836/Del/2013 also.

25.       In the result, both the appeals filed by the assessee are allowed. The
Stay Application No.433/Del/2013 in ITA No.1835/Del/2013 is dismissed as
having become infructuous.

          The order pronounced in the open court on 30.06.2014.

                 Sd/-                                                      Sd/-

         [J.S. REDDY]                                              [A.D. JAIN]
     ACCOUNTANT MEMBER                                          JUDICIAL MEMBER


Dated, 30th June, 2014.

dk

Copy forwarded to:

     1.   Appellant
     2.   Respondent
     3.   CIT
     4.   CIT (A)
     5.   DR, ITAT

                                                                 AR, ITAT, NEW DELHI.




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