Income Tax Appellate Tribunal - Chandigarh
Smt. Sunita Singal, Ludhiana vs Dcit, Cc-1, Ludhiana on 30 April, 2019
आयकर अपील य अ धकरण,च डीगढ़ यायपीठ "बी", च डीगढ़
IN THE INCOME TAX APPELLATE TRIBUNAL,
CHANDIGARH BENCH 'B' , CHANDIGARH
ी संजय गग , याय क सद य एवं ीमती अ नपण
ू ा गु'ता, लेखा सद य
BEFORE: SHRI SANJAY GARG, JUDICIAL MEMBER
AND SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER
आयकर अपील सं./ ITA No.935/Chd/2018
नधा रण वष / Assessment Year : 2014-15
Sh.Vishal Singal, बनाम The D.C.I.T.,
712-B, Aggar Nagar, Central Circle-1,
Ludhiana. Ludhiana.
थायी लेखा सं./PAN NO: AQAPS6628L
&
आयकर अपील सं./ ITA No.936/Chd/2018
नधा रण वष / Assessment Year : 2014-15
Smt.Sunita Singal, बनाम The D.C.I.T.,
629 B, Aggar Nagar, Central Circle-1,
Ludhiana. Ludhiana.
थायी लेखा सं./PAN NO: AIZPS1477N
नधा रती क ओर से/Assessee by : Shri Sudhir Sehgal, Adv.
राज व क ओर से/ Revenue by : Shri Manjit Singh, Sr.DR
सन
ु वाई क तार!ख/Date of Hearing : 05.03.2019
उदघोषणा क तार!ख/Date of Pronouncement : 30.04.2019
आदे श/ORDER
Per Anna pur na Gupt a, Account ant Mem ber Th e p r e se nt a p pea l s ha v e be e n f iled b y d if f e re n t asse sse e s a ga i n st t he se p ar a te or de r s of the C ommis si on e r of I n come Ta x ( Ap p e a l s) -5 , Lu d hi a na (i n sh or t 'C I T(A )' bo th da t e d 2 0. 4 .2 0 1 8 2 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 co nf ir mi ng the levy of pe na l ty u /s 2 7 1 AAB of t he I n come Ta x Ac t, 1 9 6 1 ( he re ina f te r re fe r re d to a s 'A ct') .
2. It was common ground that the issue involved in both the appeals was identical, relating to levy of penalty u/s 271AAB of the Act, subsequent to assessment framed in consequence to search carried out on Deepak Singal group of cases, which included both the assesses and it was contended that the facts leading to the levy of penalty in both the cases were identical. Therefore, both the appeals were taken up together and are being dealt with by way of this common consolidated order.
We shall first be dealing with the facts in the case of Vishal Singal Vs. DCIT in I TA No.935/Chd/2018. ITA No.935/Chd/2018(Vishal Singal):
3. Brief facts relating to the case are that a search u/s 132(1) of the Act was conducted on the assessee on 20.3.2014. During assessment proceedings thereafter, it was found that at the time of search proceedings the assessee had admitted undisclosed income amounting to Rs.10 lacs in the statement made u/s 132(4) of the Act. Penalty proceedings u/s 271AAB of the Act were 3 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 therefore initiated and show cause notice u/s 274 r.w.s.271AAB of the Act was issued to the assessee. In response, the assessee submitted that it had filed its return of income disclosing total income of Rs.9,78,250/- , which included surrendered income and which had been accepted as such. It was submitted that the assessee had substantiated the manner in which the undisclosed income had been earned and had also paid taxes on the same. It was further submitted that no valuable items had been found during search. It was thus contended that penalty proceedings initiated be therefore dropped. The Assessing Officer(A.O) did not find the reply of the assessee tenable. He reproduced the provisions of section 271AAB of the Act and also the surrender letter giving the amount and basis of surrender of additional income during search. Referring to the same, the A.O. stated that it was clear from the same that the surrender was made to cover the discrepancy found in the seized documents during search and to cover any kind of discrepancy in the regular books of account and also income yet to be recorded in the books of account. He, therefore, held that the assessee's case clearly fell under the provisions of section 271AAB(1)(a) of the Act and 4 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 thus levied the penalty accordingly on the surrendered income @ 10% thereof, which amounted to Rs.1 lac.
4. The a ssessee went in a ppe al be fore the CI T( A) , w ho upheld the order of the A.O.
5. Aggrieved by the same, the assessee has come up in appeal before us, raising the following grounds:
"1. That the Ld. Commissioner of Income Tax (Appeals) has erred in confirming the levy of penalty u/s 271AAB r.w.s. 274 of the Income Tax Act, 196,1 amounting to Rs. 1,00,000/-
2. That the confirmation of penalty is against the facts and circumstances of the case.
3. That the Appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard or disposed off."
6. During the course of hearing before us, the Ld. counsel for assessee reiterated the contentions made before the lower authorities. The Ld. counsel for assessee contended that there was no undisclosed income, as defined in section 271AAB of the Act and, therefore, no penalty could be levied. The Ld. counsel for assessee drew our attention to the definition of the undisclosed income in Explanation to section 271AAB of the Act as under:
5 ITA Nos.935 & 936/Chd/2018
A.Y.2014-15 "271AAB:-
Explanation.--For the purposes of this section,--
(a) xxxx
(b) xxxx
(i) xxxx
(ii) xxxx
(c) "undisclosed income" means--
(i) any income of the specif ied previous year represented, either wholly or par tly, by any money, bullion, je wellery 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) other wise not been disclosed to the [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner before the date of search; or
(ii) any income of the specif ied previous year represented, either wholly or par tly, by any entry in respect of an expense recorded in the books of account or other documents maintained in the normal course relating to the specified previous year which is f ound to be f alse and would not have been f ound to be so had the search not been conducted.]"
7. Referring to the same, the Ld. counsel for assessee contended that the undisclosed income meant any income which was represented by any asset found during the course of search or any entry in the books of account or 6 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 other documents, which has not been recorded before the date of search or not disclosed earlier to the Principal, Chief Commissioner or Commissioner of Income Tax Act. The Ld. counsel for assessee contended that some incriminating material representing earlier undisclosed income of the assessee ought to have been found during the course of search which would qualify as "undisclosed income" for the purpose of levy of penalty u/s 271AAB of the Act. The Ld. counsel for assessee contended that in case of the assessee there is no reference to any document or asset found during the course of search either in the assessment order or in the penalty order and, therefore, there was no case of levy of penalty at all. The Ld. counsel for assessee contended that as per the definition of undisclosed income, if any entry is found to be false, the same also qualifies as undisclosed income but even that has not been found in assessee's case. The Ld. counsel for assessee relied upon the following case laws in support of his contention that in the absence of any undisclosed income no penalty u/s 271AAB was leviable:
1. DCIT Vs. Hari Singh, IT A No.598/CHD/2017 CHD-TRIB 7 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15
2. DCIT Vs. Manish Agar wal, IT A No.1479/KOL/2015 KOL-TRIB
3. DCIT Vs. Amit Agarwal, ITA No.1471/KOL/2015 KOL-T R IB
4. AC IT Vs. S.Mar tin, IT A No.2382/CHENY/2016 CHENA I-T R IB
5. DCIT Vs. M/s Aryan Mining & Trading Corporation Ltd., IT A No.1601/KOL/2017 KOL-
TRIB
6. DCIT Vs. Rashmi Cement Ltd., IT A No.1606/Kol/2017 KOL-TRIB
7. DCIT Vs. Rashmi Metaliks Ltd., IT A No.1608/Kol/2017 KOL-TRIB
8. The Ld. DR at this juncture countered by drawing our attention to the surrender letter of the assessee reproduced in the penalty order as under:
The Joint/Additional Director of Income Tax Dt. 11-4-2014 (Inv.), Ludhiana Sir, Re: Search and seizure operations at the residential and business premises of M/s Deepak Builders and other Group of Cases.
This has a reference to the search and seizure operations carried out by the department on 20,03.2014 at the various business premises of M/s Deepak Builders Group of Companies and residential premises of the Directors/Partners. During the course of search, certain discrepancies were there in the cases of Deepak Builders .and other Companies, Partnership Firms and Individuals cases of (Group; These discrepancies were in .respect. of; the books of accounts of the business maintained by the assessee and also, there were certain entries which had not yet been recorded in the regular books of account for the different Assessment Years. The-said discrepancies relate to the same nature of business as reflected in the regular books of accounts arid otherwise and is a part and parcel of the same business activity as reflected in the return of income filed with the Department and in order to cover such discrepancies and others, we hereby offer a sum of Rs. 23 crores (Rupees twenty Three Crores Only) as additional income as declared in the return of income already filed with the Department over and above the regular income and the said income has been derived from the same source.. We .had already given an offer of surrender of Twenty Three Crores in the group as a whole and, now, in this letter, the offer remains the same and also persons in whose hands the amount has been offered are 8 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 also the same but there are some adjustments and, now, the head-wise bifurcation after examination the seized documents, the amount offered as business income from the business activities is as under.-
S.No. Name of the Assessment Amount Basis Concern/Individual Year . Surrendered
1. M/s Deepak 2014-15 14,02,00,000.00 Offered as Business income to Builders 2013-14 21,00,000.00 cover any discrepancies in the seized documents as found and seized during the course of search and also to cover any kind of discrepancy in the regular books of account and the above income was earned in the same manner as stated above as per regular books of account and that income is yet to be recorded in the books of account. The above income is reflected in various expenses i.e. payment of labour expenses etc. and other seized records and any kind of profit element found during the course of search.
The income for the Assessment Year 2013-2014 is being offered subject to no penalty U/s 271(1)(c) of the Income Tax Act, 1961 and the same may please be accepted.
2. Sh Deepak Singal 2014-15 6,70,00,000.00 Offered as Business' income to cover 2013-14 10,00,000.00 any discrepancies in the seized 2012-13 16,00,000.00 documents as found and seized 2011-12 60,00,000.00 during the course of search as per 2009-10 60,00,000.00 various Annexure and for any kind of 2008-09 21,00,000.00 discrepancy in the regular books of accounts and the above income was earned in the same manner as reflected in my return of income. The above income is reflected in various personal assets including amount spend on construction, cash and to cover any investment in the immovable/moveable asset. The income for the Assessment Year 2008-2009 to 2013-2014 is being offered subject to no penalty U/s 271(1 )(c) of the Income Tax Act, 1961 and the same' may please be accepted.
9 ITA Nos.935 & 936/Chd/2018
A.Y.2014-15
3. Smt. Sunita Singal 2014-15 15,00,000.00 Offered income earned from sale or purchase of property and the same income reflected in construction/invest merit to immovable assets and to cover any other asset or, documents as found during the course of search and jewellery, cash etc. and other misc.
activities.
4. Sh.Kamal Singal 2014-15 15,00,000.00 To cover all the documents as found during the course of search and the income has been derived from commission/brokerage from property dealing.
5. Sh.Vishal Singal 2014-15 10,00,000.00 To cover all the documents as found during the course of search and the income has been derived from commission/ brokerage from property dealing.
2. It is pertinent to mention here that there was a. survey operation on the business premises of the assesses on 8,1,2010 i.e. in the Assessment Year 2010-2011 and during the course of survey the assessee had made a surrender of Rs.4 Crores (Rs. 3 Crores in the case of M/s Deepak Builders and Rs.1 Crore in the case of Shri Deepal Singal, Proprietor M/s Deepak Buildcon). The above surrender in the case of M/s Deepak; Builders of Rs.3 Crores covers all the loose documents or any kind Of implication of income in the seized documents for the Assessment Year 2010-11 as found during the course of search, if any and Rs.1 Crore in the case of Shri Deepak Singal Proprietor M/s Deepak Buildcon covers the cash received on account of the sale of flats over and above the amount reflected in the books of account for the Assessment Years 2009-010 arid 2010-2011. The assesses Shri Deepak Singal had been earned the income on account of the sale of flats and the same income as offered during the course of survey had been reflected in the cash, recoverable and amount spends in the, construction of flats. The copy of the statement as recorded during the course of survey is being enclosed herewith for your ready reference.
3. The above amount as offered are tentative and subject to change any time during proceeding before your goodself and also filing Of the return U/s 153A but offer will remain the same and covers all the issues as per seized record or any kind of discrepancy in the regular books of account or otherwise and is the, business income of the assessee. The above offer also covers the! rough notings/estimates and other slips on account of sales, purchases outside the books of accounts, besides, profit element on account of variation in the Sale Rates of Rats etc. and to cover other discrepancies.
4. The above offer in, the .different years as mentioned .above is being made as per the provisions of income Tax Act and this offer is being made Subject to no penalty u/s 271AAA/ 271AAB/271(1)(c) and prosecution and the above income shall be declared by our group concerns in respective years .While filing the return in the relevant years over and above.
9. Referring to the same the Ld. DR pointed out that the assessee had surrendered an amount o Rs.10 lacs in his case and as per the surrender letter it was on 10 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 account of discrepancy in the books of account of the business of the assessee and certain entries not recorded in the regular books of account which were noted during se a rch. The Ld . D R pointe d out tha t the asse ssee had even stated in the surrender letter that it had derived income from commission/brokerage from property on account of which the surrender had been made. Our attention was drawn to para-1 of the surrender letter pointing out that the above facts had been stated therein. The Ld. DR thereafter drew our attention to para-3 of the letter pointing out that the assessee had reiterated the fact that the surrender was being made on account of discrepancies in the seized records and other documents found during the course of search including rough notes/assessments and other slips on account of sales, purchases outside the books of account and other discrepancies. Th e Ld.DR therefore, stated that the contention of the Ld. counsel for assessee that no incriminating material was found during the course of search which related to the surrender made was factually incor rect. The Ld. DR further re lied upon the find ings of the Ld.CI T(A) at para 4.1 of his order as under:
"The facts of the case, the order of the AO imposing the penalty and the arguments of the AR during appellate proceedings have 11 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 been considered. The AR has repeated the contentions which were raised before the AO. It is fairly conceded by the AR that in the present case provisions of Section 271AAA are not applicable and now the case is governed by the provisions of Section 271AAB. For deciding the issue and to have clarity in the matter the provisions of Sections 271AAB which are applicable to the present case under consideration are reproduced below.
"271AAB. (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 under section 132 on or after the 1st day of July, 2012, the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,-
(a) a sum computed at the rate of ten per cent of the undisclosed income of the specified previous year, if such assessee-
(i) in the course of the search, in a statement under sub-
section (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
(iii) on or before the specified date-
(A) pays the tax, together with interest, if any, in
respect of the undisclosed income; and
(B) furnishes the return of income for the specified
previous year declaring such undisclosed income therein;
(b) a sum computed at the rate of twenty per cent of the undisclosed income of the specified previous year, if such assessee-
(i) in the course of the search, in a statement under sub-
section (4) of section 132, does not admit the undisclosed income; and
(ii) on or before the specified date-
(A) declares such income in the return of income furnished for the specified previous year; and (B) pays the tax, together with interest, if any, in respect of the undisclosed income;
(c) a sum which shall not be less than thirty per cent but which shall not exceed ninety per cent of the undisclosed 12 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 income of the specified previous year, if it is not covered by the provisions of clauses (a) and (b).
(2) No 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).
(3) ...
As admitted by the AR also, that the income of Rs. 10,00,000/- was surrendered during the search. Regarding the basis it was admitted (as per the surrendered letter reproduced by the AO in the penalty order) by the assessee that cover all the documents as found during the course of search and the income has been derived from commission/brokerage from property dealing". The AO has rightly mentioned that in this case the income of Rs. 10,00,000/- was disclosed by the assessee in the return of income and the same was not disclosed to the Department till the search action. The assessee has surrendered this amount under section 132 on 11.04.2014. Therefore, provisions of section 271AAB are applicable. It is also not in dispute that the case of the assessee is covered under sub-section (l)(a) of Section 271AAB as the assessee has paid the tax along with the interest and disclosed the amount in the return. The language of the Section is very clear and unambiguous that in a case where the assessee admits the undisclosed income under Section 132(4), then the assessee shall pay penalty equal to 10% of the undisclosed income. In view of the above provisions of law, the penalty imposed by the AO in this case is found as per law and hence sustained. Accordingly, these grounds of appeal are dismissed."
10. We h a ve he a rd th e co nte nti on s of bo th th e p a r ti e s a n d p e r use d the ord e r s of t he a utho ri ti e s be l ow . The sole co nte nti on of th e Ld. C ou ns e l f or th e a s se sse e , a gai ns t t he le vy of p e n a lty un d e r se cti on 2 7 1A AB of t he Ac t, is tha t no i nc ri mi na t in g ma t e r i a l re p re se ntin g " un di sc lo se d in come " of t he a ss e s see w a s f oun d d ur i ng th e co ur se of se a r c h. W e d o not 13 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 f in d a ny me r it i n thi s c on te n tion of th e Ld . C o un se l fo r t he a ss e s see .
11. Th e s ur r e n d e r l e tte r of the a sse s see , a d mi tti ng to t he d is cr e p a n cie s i n th e boo ks of a cco un t a n d c e r ta in e n tr ie s not b e i ng re cor de d in the boo ks , a s a l so s pe ci fi c a d mi ssi on t o t he f a ct th a t th e a s se sse e h a d not disc lo se d the i n come re la t in g to co mmi s si on a nd b r ok e r a ge , c on tr a di ct s t hi s c on t e n tio n o f t he Ld . C o un se l f or the a sse ss ee . I n the s ur r e n de r le tte r , a s r e p r od uce d i n the e a r l ie r p a r t of t hi s or de r , the as se sse e ha s ca t e gor i ca l l y a dmit te d th a t the re w e re d i sc re p a ncie s i n re s pe ct of th e b ook s of acco un t of th e b usi ne s s ma i n ta i ne d by hi m a n d th e re we re c e r ta in e ntr ie s w h i ch h a d n ot b e e n re cor de d i n t he r e gu l a r b ook s of a c cou nt f or d if fe re nt Asse ss men t Y e a r s a n d th a t th e sa i d d i sc r e p a nc ie s re la te d to th e sa me na tu r e of b us in e s s a s re f lect e d i n the re g ula r b ook s of a ccoun t. F ur the r , i n th e s ur re n de r le tte r the as se s see ha s a lso sp e c if ic a l ly a d mi tte d th a t his in come fr om c om mis si on a n d b r ok e ra ge h a d r e ma i ne d un d is cl ose d . The a ss e ssee ha d s ur r e n de re d an a mou nt of Rs. 1 0 la k h s on a ccou n t of the se a dmi tte d un d i scl ose d i ncome a n d o n a ccou nt of d is cr e pa n ci e s in the d ocu me n ts f oun d d ur i n g the s e a rch . The l e t te r a ls o me n tio ns th e na t ure of di sc r e p a nc ie s f oun d , be i ng r ou gh n oti ngs /e s tima t e s, ot he r sl ip s on a cc oun t o f sa les, p u rc ha s es 14 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 ou tsi d e t he b ook s of a c cou nt, b e s id e s p r of i t e le men t on a c cou nt of v a ri a ti on i n th e s a le r a te s of fl at, e t c. C le a rly, the su r re nde r b e i ng so s pe ci fi c c a nn ot n ot b e s a id to b e me r e l y to b uy pe a ce of min d . Fu r the r , the a sse ssee has ne ve r re t ra c te d t he su r r e nde r s o ma d e ; on the c ont ra r y , h e ha s d is cl ose d the a mou nt sur r e n d e re d a s hi s b u sine ss in come in th e re tur n of i nc ome f i le d a nd a c ce p te d the a sse s sme n t of the sa me a s s uch , b y the A .O . Al l the a b ove f a cts ha ve re ma i n e d u nc ont ro ve r te d b e f ore u s. Th i s s p e ci fi c u nre t r a cte d a d mi ss ion of th e a sse ssee of e a r l ie r u nd i sclos e d i nc ome a nd d i scr e pa ncie s i n th e b ook s of a cc oun t, w e h old , is w i tho ut a ny d oub t t he b e st p ie ce of e v ide nce a g a in st th e a s se s se e an d i s i n cr i min a t i ng ma te r i a l e n ou gh re p re se ntin g u nd i sc lo se d in come f or the p ur po se of le vy of p e na l ty un d e r se c ti on 27 1 AA B of the Ac t. Th e a s se s se e had h ims e l f a d mi tte d to th e f a ct of ha v in g n ot d i sc los e d th e i n come on a c cou nt of b r ok e r a ge and co mmi s si on earned and had h ims e l f a d mi tte d to th e f a ct th a t th e re we re di sc re p a nc ie s a n d un r e c or de d e n tr ie s in h is b ook s of a cco un t a n d a l so c e r ta in r oug h n oti ng s a nd e s tima te s. Ha vi ng h i mse l f a d mi tte d to a l l th e se f a ct s a nd a t n o po in t of ti me ha v in g e ve r re t ra c te d th is a d mi ssi on , t he sa me c ons ti tut e s i n cr i min a ti ng ma te r i a l a g a in st th e a s se sse e a nd th e re w a s n o f ur th e r re q ui reme nt for t he 15 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 Re ve n ue i n such ci r cums ta n ce s to ha v e u ne a r the d e vi de n ce su p po rt in g thi s a d mi ssi on of the a s se s see .
12. Th e r e li a n ce p l a ce d by the Ld .C o un se l f or the asses see on va r i ou s ca se la ws , w e fi n d a r e of no a ss is ta n ce si n ce the y a re a l l d i sti n gui sh a b le on fa c ts. I n non e o f the ca se l a w s the a ss e s see had sp e c if i ca l ly a d mit te d to e a r l ie r un d is cl ose d i nc ome . I n the ca se of H a r i Si ngh ( su p r a ) pe na l ty l e v ie d u/s 2 7 1 A AB o f the A ct, on a d d i ti on ma d e o n a c cou nt of d if fe re n ce i n va l ua ti on of jew e l le r y wa s de le te d h old i n g th a t the d if fe re nce i n va l ue of Rs. 1 .3 la c s on v a lu a ti on of Rs .1 .2 cror e s w a s not un n a tur a l a n d co u ld be on a cc oun t of di f fe r e nce of o pi n ion a n d w a s the re fo re n ot i n the n a tu re of u nd i scl os e d inc ome o f t he a ss e s see . I n the c a se of M a ni sh Ag ga r w a l( su p r a ), it w a s n ote d th a t the a s se sse e was n ot en ga ge d in a ny b us in e s s or p r ofe ssi on a n d w a s no t r e q u ir ed t o ma i n ta i n a ny b oo ks of a cc oun ts a n d the d ocu me n ts foun d d ur i ng se a rch di sc l osi ng sp e cul a ti ve commod i ty tr a n sa c ti o n un d e r ta ke n b y th e a ss e ssee w hi c h w a s su rr e nd e re d , wa s h e l d to be r e cor de d in the "o the r d ocu me n ts" of the a sse ssee and h e n ce he l d to be not un d i scl ose d in come of the a ss e ssee a s p e r the d e fi ni ti on of t he sa me i n s e c tio n 2 7 1 AA B of th e Act. I n the ca se of S. Ma r ti n ( su pr a ) t he su r ren de r ma d e b y the a ss e ssee w a s f oun d to be not a d mi tte d on th e b a s is of a n y ma t e r i a l ,d oc ume n t a nd wa s j us t a 16 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 ge ne ra l su r re nde r, w hi ch the re f or e w a s n ot he ld to co ns true un d i scl ose d i n come f or t he p u rp os e s of le vy of pe nal ty. I n t he ca s e of Ra sh mi C e me n t(s up r a ) i t w a s n ote d th a t th e su r re nde r ma d e w a s su o moto, g e n e r a l , to b uy p i e ce of min d a nd not b a se d on a n y ma te r i a l . I n s uch cir cu msta n ce s i t wa s h e l d t ha t th e s ur re n de r di d n ot in i tse lf con st itu te in cr i min a ti ng ma te ri a l /un d is cl ose d i n come o f th e a s se sse e . The fac ts le a d i ng to th e de le tio n of pe na l ty i n the ca s e of R a smi M e ta l ik s (s up r a ) w e f i nd a r e i de nti ca l to th a t i n the ca s e of Ra sh mi C e me n ts ( su pr a ) . Th us cl e a r l y non e of th e ca se l a ws are of a ny a ss is ta n ce to the a sse ssee s in ce i n t he i mpu gn e d case t he a ss e s see ha s m a d e s pe ci f ic a d mi s si on o f h a vi n g un d is cl ose d i nc ome r e l a ti n g to com mi ss ion /b r oke r a ge a nd d i sc r e p a nc ie s i n th e bo ok s of a cc oun ts w hi ch ha s r e ma i ne d u nre t ra cte d .
13. I n vie w of the ab ov e , we con cu r w i th th e f i nd i ng s o f the Ld . C I T(A ) tha t th e spe c i fi c a d mi ss ion of the a sse s see to t he un d i scl ose d i ncome and d is cr e p a n cie s in its a cc oun ts co ns tit ute d i n cri min a ti ng ma te r i a l re p re se nti n g un d is cl ose d i nc ome of th e a sse ssee for the pu r po se s of le vy of p e n a lt y u nde r se cti on 27 1 AA B of the Act . We , the re f ore , u p hold th e or de r of th e Ld. C I T( A) c o nf i rmi n g t he l e vy of pe na l ty.
I n vie w of the a bov e t he a p pe a l fi l e d b y the a sse ssee is d is mi sse d.
17 ITA Nos.935 & 936/Chd/2018
A.Y.2014-15
14. N ow , ta k in g up the a p pe a l of th e a sse ssee in I TA N o. 9 36 /C H D /2 0 1 8 , th e f a cts of th e ca s e we f in d a r e id e n ti ca l , w i th t he a sse ssee , S mt. S un i ta S in ga l , a l so be ing o ne of t he p e r so ns se a r ched i n th e Dee pa k S in ga l gr oup of ca s e s a n d t he a ss e s see h a vi n g su rr e nde re d a n a moun t of Rs .1 5 la k h s d ur i ng th e cou r se of se ar ch , on w hi c h pe na l ty u nd e r se c tion 2 7 1A AB of th e Act w a s le vie d . Th e a r gume nts of t he Ld .C ou n se l f or the a ss e s see , a ga i nst le vy of pe na l ty w e re i de n ti ca l as in t he c ase of Sh . Vi s ha l Si ng a l i n I TA N o. 9 35 /C H D /20 1 8 de a lt w i th us a b ove , th a t n o inc ri mi na t in g ma t e r i a l re p re se nti ng un d is cl ose d i nc ome w a s f ou nd du r in g the c our s e of se a rc h.
15. I n th is ca se , we ha v e n ote d fr om the su r r e nde r l e tte r of th e a sse ssee re pr od u ce d a b ove i n p a r a , th a t th e sur re n de r of Rs .1 5 l a k hs w a s i d e n ti ca l a s in t he ca se of V is ha l S in ga l i n I TA N o. 9 35 /C H D /2 0 1 8 to cov e r a l l d ocu me n ts fou nd du r in g t he co ur se of se a rc h a n d t o c ove r the i nc ome de r i ve d f r om s a le or p ur c ha se of pr op e rt y, w hi ch re ma in e d un di sc l ose d e a r l ie r a n d th e s a me re fle c te d i n c ons tr uc tio n/i nv e st me n t i n im mov a b le a ss e ts . S in ce the fa c ts le a di n g t o l e v y of p e na l ty in t he p r e se nt ca s e a re ide n ti ca l to tha t in the c a se of t he a sse ssee i n I TA N o. 9 35 /C H D /2 0 1 8 a n d th e a r gume nt s o f the a s se s se e a g a in st th e sa me a re a l so i d e n ti ca l , our d e c is ion re n de red in the c a se of th e a s se sse e in I TA N o. 93 5 /C H D /2 0 1 8 w il l sq u a r e l y a p p l y to 18 ITA Nos.935 & 936/Chd/2018 A.Y.2014-15 th e pre se n t ca se a ls o, fo ll ow i ng w h ic h w e u p hol d the or de r of th e Ld. C I T(A ) co nf ir mi ng th e le vy of p e n a lt y und e r se cti on 2 7 1A AB of t he Act , a mo u n tin g t o Rs. 1 .5 0 l a k hs. Th e a p p e a l of th e a sse ssee i s acco rd i ng ly d i smi s se d .
16. In the re s ul t, b oth the a p pe al s of th e a s se sse e a re d is mi sse d.
Or d e r pr on ou nced i n th e O pe n C ou rt .
Sd/- Sd/-
संजय गग अ नपण
ू ा गु'ता
(SANJAY GARG) (ANNAPURNA GUPTA)
याय क सद य/Judicial Member लेखा सद य/Accountant Member
+दनांक /Dated: 30th April, 2019
*रती*
आदे श क ' त(ल)प अ*े)षत/ Copy of the order forwarded to :
1. अपीलाथ+/ The Appellant
2. ',यथ+/ The Respondent
3. आयकर आयु-त/ CIT
4. आयकर आयु-त (अपील)/ The CIT(A)
5. )वभागीय ' त न0ध, आयकर अपील!य आ0धकरण, च2डीगढ़/ DR, ITAT, CHANDIGARH
6. गाड फाईल/ Guard File आदे शानस ु ार/ By order, सहायक पंजीकार/ Assistant Registrar