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Further I find that the AO has levied penalty u/s. 271AAB(1)(c). This section read like sum computed at the rate of thirty per cent of the undisclosed income of the specified previous year.

Thus, it is clear that in order to levy penalty two things are essential (1) undisclosed income and (2) specified previous year. Here in this case Rs.186500000/- was offered for taxation by the assessee suo moto in the statement recorded at the time of search. From the ratio decided by the Hon'ble Supreme Court in the case of Sudarshan Silk & Saries (supra), it is clear that only the statement of the assessee without any corroborating evidence cannot be the only basis for levying penalty. Here it is also clear that from the statement of the assessee one cannot point out which amount of undisclosed income pertains to which specified previous year. In this situation, where nothing is clear from assessee's statement recorded at the time of search, the action of the AO to levy penalty u/s. 271AAB(1)(c) on the amount offered by the assessee suo moto to buy peace of mind, cannot be justified. The Hon'ble Supreme Court has also categorically decided the ratio that penalty cannot be levied on the amount offered by the assessee in order to buy peace of mind [in the case of Sudarshan Silk & Sarees (supra)]. Thus, respectfully following the ratio decided by the Hon'ble Supreme Court, the AO is directed to calculate and levy penalty u/s. 271AAB(1)(c) on Rs.13585737/- only. Accordingly, assessee's appeal on grounds no 1, 2 and 3 are partly allowed."

8. It is in this backdrop of pleadings that we notice that the instant issue as to whether the impugned sec. 271AAB penalty is automatic post search involving the searched assessee's disclosure followed by assessment proceedings or not; stands answered in this tribunal's co-ordinate bench's decision in DCIT vs. AKA Logistics Pvt. Ltd. & Ors. in ITA No. 1604, 1607 & 1610/Kol/2017 decided on 27.02.2019 as follows:-

"9. We have given our thoughtful consideration to rival contentions. There is hardly any dispute between the parties about the basic facts inter alia that the department had conducted the impugned search in these three assessees' cases wherein they declared their respective additional incomes they filed their respective returns accordingly including said additional incomes therein. The Assessing Officer accepted the same in consequential assessments. The sole dispute between the parties herein is about operation of the impugned penal provision i.e. section 271AAB of the Act. The Revenue's case before us is that it automatic comes into play the moment the searched-assessee makes any disclosure of undisclosed income whereas the assessee pleads that this penal provision applies in case the search itself leads to some specified material indicating undisclosed income defined in Sec. 271AAB Explanation (c) of the Act. The Revenue admittedly raises its arguments as per hon'ble apex court's decision in Sandeep Chandak (supra) declining the taxpayer's Special Leave petition in limine challenging hon'ble Allahabad high court's decision reviving the penalty therein. The Revenue's case appears to be carrying substance ab initio that as per hon'ble apex court's clinching observations whilst declining assessee's special leave petition that no ground was made out to interfere with the hon'ble high court's judgment under challenge. It does not stand on the correct side of law when we carefully study in all these legal developments. We find that the tribunal's co-ordinate bench's order in Sandeep Chandak vs. ACIT (2017) 185 TTJ 265 (Luc) had deleted sec. 271AAB penalty in issue primarily for the reasons that the Assessing Officer served only u/s. 271(1)(c) penalty notices, granted very short time to the taxpayer before levying the impugned penalty. It then observed that the Assessing Officer had not applied u/s 271AAB Explanations clause (a) to (c) as well in the given facts and circumstances. The Revenue preferred its appeal before hon'ble Allahabad high court finally culminating in judgment reported as (2018) 93 taxmann.405 (All) PCIT Vs. Sandeep Chadak. It raised three substantial question of law in its appeal as follows:-

(c) Whether the benefit of Section 292BB was correctly denied to the AO/appellant by the ITIAT?"

10. It is in this factual backdrop that hon'ble high court had held that the Assessing Officer had issued the relevant notice u/s 271(1)(c) r.w.s. 274 containing all particulars and section 292B of the Act would apply since the assessee had never objected correctness thereof before ITA No.232, 234,1485, 1535,1541, & 2293/Kol/2017 & C.O No.37, 27,84, 88, 108/K/2017 & 107/Kol/2018 A.Y 2013-14 & 14-15 Page 12 the Assessing Officer in corresponding proceedings and had in fact respond to the notice in writing with an undertaking that this was the notice issued by the Assessing Officer u/s 271AAB of the Act. In other words, the assessee had not contended that the impugned notice was issued u/s 271(1)(c) r.w.s. 274 in its reply and was clear that the notice was issued to levy penalty u/s 271AAB of the Act. It is thus clear that the CIT-DR's argument that the Revenue has already succeeded on the issue as to whether the impugned penalty is automatically flows than from the additional income declaration made during search; does not find support from the hon'ble high court's discussion. We therefore go by various co-ordinate benches' decisions (supra) in these facts and circumstances to confirm the CIT(A)'s action deleting the impugned penalt(ies) to the extent indicated hereinabove forming part of subject-matter of adjudication of these three Revenue's appeals holding that sec. 271AAB comes into play in case of corresponding material only than automatic in case of a search. We wish to reiterate here in these facts that the tribunal's decisions (supra) have already held that Sec. 271AAB penalty applies in case of additional income defined under Explanation (c) of the Act. We therefore decline Revenue's three appeals. The assessee's cross objections No. 96 & 98/Kol/2017 supporting the CIT(A)'s order to this extent are rendered infructuous.

ITA No.232, 234,1485, 1535,1541, & 2293/Kol/2017 & C.O No.37, 27,84, 88, 108/K/2017 & 107/Kol/2018 A.Y 2013-14 & 14-15 Page 13 4.3 The Appellant refers to the judgement of Hon'ble Andhra Pradesh High Court in the case of Madhucon Projects Ltd. vs. CCE for Settlement Commission [2016] 72 taxmann.com 71 (AP), which provides at para 50 that two different expressions in a statute must be construed to carry different meanings.

4.4 The relevance of the phrase "in which search was conducted" used in definition of "specified previous year" would be found from reading of clause (ii) of Explanation (c) below section 271AAB of the Act. There the words "specified previous year" has been used for the purposes of levy of penalty under section 271AAB of the Act. Thus if it is found that the assessee has made some claim of bogus expenditure in the books of accounts of the year in which search is conducted and/or in the books of accounts of the previous year for which the previous year has ended but the due date of furnishing the return of income has not expired and the assessee has not furnished the return of income, in those cases penalty could be levied in as much as the phrase "specified previous year" has been used in clause (ii) to Explanation (c) below section 271AAB of the Act.