Naresh B Jindal, Aurangabad vs Department Of Income Tax

respectively. Since identical issue is involved in all the three

appeals, therefore, these were heard together and are being

disposed of by this common order for the sake of convenience.

2. Deletion of penalty levied u/s.271(1)(c) of the I.T. Act by the

Assessing Officer is the only issue raised by the Revenue in the

grounds of appeal against the order of CIT(A).

3. First we take up ITA No.1443/PN/2013 for A.Y. 2006-07 as

the lead case.

4. Facts of the case, in brief, are that the assessee is an

individual. A search action u/s.132 of the I.T. Act was conducted 2

at the business and residential premises of different

members/associate concerns of the Kalika group of Jalna. The

assessee's premises was also covered. In response to notice

u/s.153A the assessee filed return of income on 19-07-2011

declaring total income at Rs.33,37,040/- and agricultural income

of Rs.41,000/-. During the course of assessment proceedings the

Assessing Officer noted that the assessee in his computation of

income has shown income of Rs.29,96,551/- "as income declared

in search u/s.132". He noted that this income is in addition to the

income declared originally in return of income filed u/s.139 of the

I.T. Act. On being questioned by the Assessing Officer the assessee

vide submission filed on 18-10-2011 stated as under :

"The assessee has accepted income u/s.132 during the year though there is no such direct evidence of such sales were noticed or such sales were made by the assessee company/Director. The assessee has declared income in order to buy peace, to avoid litigation and paid the tax according & honoured the declaration."

5. The Assessing Officer therefore noted that this income

declared by the assessee was resultant of search action. Had it not

taken place the assessee would not have shown this income. He

therefore held that the assessee has concealed the particulars of

income to the extent of Rs.29,96,551/-. He therefore initiated

penalty proceedings u/s.271(1)(c) of the I.T. Act read with

Explanation 5A.

6. In response to the penalty notice the assessee submitted as

under :

"6.1 The assessee group has declared income during the course of search to cover all deficiencies & mistakes & honoured the declaration & paid taxes.

6.2 The assessee has co-operated in all proceedings & shall co- operate.

3 6.3 The assessee has never filed inaccurate particulars & not hidden any material facts.

6.4 The assessee has not concealed any income with the intention to evade tax & in guilt mind. The penalty u/s 271(1)(c) can be levied only when there must be concealment or there must be inaccurate particulars of income. To avoid litigation, the assessee agreed for addition.

6.5 The assessee also relies upon the latest judgment given by the Supreme Court in CIT vs Reliance Petro-products Pvt. Ltd."

7. However, the Assessing Officer was not satisfied with the

explanation given by the assessee. He observed that statement of

Shri Ghanshyam Goyal main concerned person of Kalika group

was recorded u/s.132(4) of the I.T. Act. At the time of search at

Kalika Steel Alloys Pvt. Ltd. on 08-07-2009 in the statement Shri

Ghanshyam Goyal made declaration of income of Rs.14 crores.

Later on in the statement recorded u/s.131 of the Act by the ADIT

(Investigation) Aurangabad on 17-08-2009 Shri Ghanshyam Goyal

reiterated the declaration of income and gave detailed bifurcation

of the income declared at Rs.14 crores. In reply to question No.4 of

the said statement Shri Ghanshyam Goyal declared an amount of

Rs.29,96,551/- as undisclosed income in the hands of Shri Naresh

Jindal, i.e. the assessee for A.Y. 2006-07. He observed that the

declaration of income made by Shri Ghanshyam Goyal was on

account of profit earned on unaccounted sale determined by

DGCEI in the cases of Kalika Steel Alloys Pvt. Ltd. for various

assessment years. The income estimated on unaccounted sales

was declared in the hands of the directors. The assessee was one

of such directors and an amount of Rs.29,96,551/- was declared

for the A.Y. 2006-07. He therefore held that the provisions of

Explanation 5A to section 271(1)(c) of the I.T. Act are attracted.

Further, irrespective of declaring income in the returned income

after the date of search such income has to be considered as 4

concealed income. He further observed that although the assessee

and the group as such have cooperated during assessment

proceedings it does not give immunity from imposition of penalty

for concealing of income. Rejecting the explanation given by the

assessee and distinguishing the decision of the Hon'ble Supreme

Court in the case of Reliance Petro Products Pvt. Ltd., (Supra) cited

before him the Assessing Officer levied penalty of Rs.6,58,884/-

u/s.271(1)(c) of the I.T. Act being 100% of tax sought to be evaded.

8. Before CIT(A) the assessee submitted that the income of

Rs.29,96,551/- has been offered to tax in the hands of the

assessee only to avoid protracted litigation and to buy peace of

mind. The said income represents profit on alleged suppressed

sale of Kalika Steel Alloys Pvt. Ltd., in which the assessee is a

Director; therefore, as held by the CIT(A), Aurangabad while

deciding the appeals in the cases of Kalika Steel Alloys Pvt.Ltd. for

A.Ys.2004-05 to 2010-11 and Kalika Steel Jalna Pvt. Ltd. for

A.Ys.2006-07 to 2010-11 vide orders dated 14/05/2012, the

income from manufacturing activity of the companies is to be

assessed in the hands of the said companies and not in the hands

of the Directors. It was further argued that the CIT(A), Aurangabad

has not allowed telescoping of profit of the said companies on

account of alleged suppressed sale against the same profit offered

to tax in the hands of the Directors as the status of the companies

and Directors are different. It was submitted that in view of the

above facts, it is evident that the said income of Rs.29,96,551/- as

held by CIT(A) is income of Kalika Steel Alloys Pvt.Ltd. It was

argued that it is the settled law that the income incorrectly offered

in the hands of any assessee is not liable to penalty u/s.271(1)(c) of

the Act, as the income itself is incorrectly offered and taxed, the 5

concealment penalty has no legs to stand. The assessee has filed

written submission, raising the above contentions, vide letter dated

21/03/2013 which has been considered.

9. Based on the arguments advanced by the assessee the

Ld.CIT(A) deleted the penalty levied u/s.271(1)(c) of the I.T. Act by

observing as under :

"8. I have carefully considered the facts of the case and rival contentions. It is undisputed fact that during the course of search & post search proceedings, the companies of Kalika Group have offered to tax profit on their alleged suppressed sale to buy peace of mind, which has been offered to tax in the hands of the Directors. The relevant portion of statement recorded on 17/08/2009 giving details of the said income offered is extracted below -

"Q.No.4 It is to be noted that, as the assessee had claimed all expenses, direct and indirect, during the respective years, hence the total value of the goods so removed shall be unaccounted income of the assessee. Please comment.

Ans:- I deny contention of DGCI that the members of Kalika group as mentioned in Q.No.2 had clandestinely removed the products. Even if it is assumed that such products are removed then a fact may be considered that all indirect expenses were already debited. However, since the purchase of the raw material was not accounted for, hence the credit should be given to the assessee for the same. It is to be considered that the amount of Raw material is incurred @ 60-70% in the case of manufacturing of Ingots/Billets and that of 85-90% for the manufacturing of bars. Hence it would be reasonable to compute the GP @ 35% and 15% respectively of the unaccounted sale so effected. From the record of the company, it can be seen that the cost of the material in the case of the KSAPL & KSJPL is as follows -

KSAPL KSJPL FY 06-07 61.50% FY 06-07 87.80%

FY 07-08 68% FY 07-08 87.70%

Thus, even if the GP rates are accepted 35% and 15% respectively, the unaccounted income would be as follows -

Sr. Name of company F.Y. Amount of goods GP% as No. removed Undisclosed income 1 Kalika Steel Alloys Pvt.Ltd. 06-07 11185330.00 @35-3914936 11107800.00 @35-3887730 2 Kalika Steel Jalna Pvt. Ltd. 06-07 16167552.00 @15-2425133 6

39954004.00 @i5-5993101 56810071.00 @15-8521511 3 Giriraj Re-Rolls Pvt. Ltd. 05-06 2225850.00 @35-779048 3794717.00 @35-1328151 4 Bhoomi Re-Rolls Pvt. Ltd. 07-08 3514942 @35-1230230

TOTAL 144760566.00 28079840

I want to state that I am disclosing the said amounts to buy peace of mind, however in principle, I am not accepting such result unaccounted sale. The details of the same are as follows -

Sr.No Name of Directors FY 05-06 FY 06-07 FY 07-08 company 1 Kalika Ghanshyam -- 1957468 1943865 Steel Alloys G Goyal Pvt.Ltd.

Arun -- 1957468 1943865 Agrawal 2 Kalika Anil Goyal 2996551 1212567 4260756 Steel Jalna Pvt.Ltd. Naresh 2996551 1212567 4260756 Jindal 3 Giriraj Re- Ghanshyam 779048 -- 1328152 Rolls Pvt.Ltd. G Goyal

4 Bhoomi Re- Anil Goyal -- 615115 Rolls Sunil Goyal -- -- -- 615115 Pvt.Ltd. TOTAL 6772150 6340070 1,49,67,624

From the above charts, it is evident that the profit offered to tax by the Directors of the above mentioned companies, including the appellant, in their hands in fact belonged to the said companies which have been earned by the said companies from their manufacturing activity. Therefore, the income from alleged suppressed sale is to be taxed in the hands of the companies and not the Directors. While deciding the quantum appeals in the cases of Kalika Steel Alloys Pvt. Ltd. for A.Ys.2004-05 to 2010-11 and Kalika Steel Jalna Pvt.Ltd. for A.Ys.2006- 07 to 2010-11 vide orders dated 14/05/2012, it has been held by the undersigned that the profit on suppressed sale of the companies is to be taxed in the hands of the manufacturing companies and not in the hands of the Directors. Further as the status of companies & various Directors are different telescoping of income was also not allowed. It is settled position that in order to levy penalty u/s 271(1)(c), there has to be "income" of the assessee in respect of which particulars have been concealed. If the amount on which the penalty u/s 271(1)(c) has been levied is not in fact the "income" of the assessee, the penalty u/s 271(1)(c) cannot be levied by invoking either 7

Explanation-1 or Explanation-5A to section 271(1)(c) of the Act. In view of the above facts and discussion, I am of the considered view that as the income of Rs.19,57,468/- is not assessable in the hands of the appellant but is assessable in the hands of the manufacturing companies, penalty u/s 271(1)(c) is not leviable in the case of the appellant. In view of the above facts and discussion, I am of the considered view that the A.O. is not justified in levying penalty u/s 271(1)(c) on the amount of Rs.29,96,551/-. The penalty u/s 271(1)(c) of Rs.10,23,160/- on the amount of 29,96,551/- is, therefore, cancelled. The A.O. is directed accordingly.

The appellant has also raised another contention without prejudice to above contention that the A.O. has invoked Explanation-5A for levying penalty u/s 271(1)(c) of the I.T. Act which is applicable only when the ownership of any asset such as money, bullion, jewellery or other valuable article or thing, is found and it is found that the said asset was acquired out of income which was not disclosed; in the case of the appellant no such facts existed and the income has been offered during search action to buy peace of mind and to avoid protracted litigation. This contention of the appellant is not required to be adjudicated as the first contention of the appellant is accepted and penalty has been cancelled.

Ground Nos. 2 & 3 are allowed."

10. Aggrieved with such order of the CIT(A) the Revenue is in

appeal before us with the following grounds :

"1) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the penalty of Rs. 10,23,160/-

imposed u/s 271(1)(c) of the Act.

2) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the amount on which penalty is levied, was not income of the assessee, ignoring the fact that such income was offered by the assessee himself in the return of income, which renders the decision perverse on facts and in law.

3) The appellant craves leave to add, alter, modify, delete, and amend any of the grounds, as per the circumstances of the case.

4) The appellant prays leave to adduce such further evidence to substantiate its case, as the occasion may demand."

11. The Ld. Departmental Representative strongly opposed the

order of the CIT(A) cancelling the penalty. Referring to the

statement of Shri Ghanshyam Goyal recorded u/s.132(4) on 18-07-

2009 the Ld. Departmental Representative submitted that in

response to Question No.50 Shri Ghanshyam Goyal had declared

an amount of Rs.14 crores in the hands of 4 directors @ Rs.3.5 8

crores each. He submitted that in his reply he has also mentioned

that the said disclosure is to cover up all the

discrepancies/differences in the books of account, difference in

stock and difference of opinion in regard to the issues raised and

also in relation to personal balance sheet discrepancies of partners,

directors or any other assessee of this group. He submitted that

the income declared by these assessees is on account of income

earned by them and not on account of discrepancies found in the

case of the companies. Thus, the assessee has not explained the

source of income and merely to buy peace of mind has declared the

income without substantiating the source of the same. Therefore,

the penalty u/s.271(1)(c) of the I.T. Act is clearly attracted. He

accordingly submitted that the order of the CIT(A) be reversed and

that of the order of the Assessing Officer be restored.

12. The Ld. Counsel for the assessee while supporting the order

of the CIT(A) drew the attention of the Bench to Question Nos. 46,

47 and 48 of the said statement and submitted that these

statements are in respect of alleged clandestine removal of goods

in the case of Kalika Steel Alloys Pvt. Ltd. and Kalika Steel Jalna

Pvt. Ltd. Referring to the statement of Shri Ghanshyam Goyal

recorded u/s.131 of the I.T. Act by the search party on 17-08-

2009, a copy of which is placed at pages 18 to 30 of the paper

book, the Ld. Counsel for the assessee drew the attention of the

Bench to the reply of the assessee to Question No.4 wherein the

gross profit of various companies are worked out on alleged

clandestine removal of goods for the F.Yrs. 2005-06, 2006-07 and

2007-08 at Rs.2,80,79,840/-. Referring to the said statement he

drew the attention of the Bench to the income declared in the

respective financial years by respective individuals. Referring to 9

Question No.16 of the said statement (page 27 and 28 of the paper

book) he submitted that the final tally of declaration of

Rs.14,01,61,595/- is income and in that the first item is

unaccounted sale as per details mentioned in Question in 2 & 3

amounting to Rs.2,80,79,840/- which is the amounts relating to

clandestine removal of goods by these companies. He submitted

that it is clear from the above that the income declared by these

individuals in A.Yrs. 2006-07 to 2008-09 on which penalty

u/s.271(1)(c) has been levied is the income on account of alleged

clandestine removal of goods by these companies which has been

offered in the hands of the individuals. He submitted that it is also

clear from the above that the income offered by these individuals in

A.Y. 2010-11 is on account of their personal income earned by

them which is clearly mentioned in Question No.50 of the

statement recorded u/s.132(4) on which heavy reliance has been

placed by the Revenue. He submitted that since the search took

place on 08-07-2009 relating to A.Y. 2010-11 the return of income

was not due to be filed on the date of search and therefore the

same has been declared by these individuals in the return of

income and paid taxes and accordingly the penalty u/s.271AAA

has also been correctly deleted by the CIT(A). He submitted that

since the income declared by the assessee in the return of income

does not belong to him and no particulars of income has been

concealed by the assessee, therefore, penalty cannot be levied

u/s.271(1)(c) of the I.T. Act on this issue and therefore the CIT(A)

was fully justified in cancelling the penalty.

13. The Ld. Counsel for the assessee further submitted that the

Assessing Officer has levied penalty by applying the provisions of

section 5A to section 271(1)(c) of the I.T. Act. He submitted that 10

Explanation 5A is applicable where search takes place on or after

01-06-2007, i.e. from A.Y. 2007-08 which can be leviable only after

the assessee is found to be the owner on any asset such as money,

bullion, jewellery or other valuable etc. or owner of any income

based on any entry in books of account and he claims that such

entry in the books of account represents his income. In short in

the second limb of Explanation 5A it is provided that no penalty

can be levied if the assessee does not claim that such an entry

represents his income. Referring to Question No.50 put by the

search party and the reply thereof he submitted that no such facts

existed and the assessee in his statement recorded u/s.132(4) has

categorically stated that he is offering the income to buy peace of

mind and to avoid protracted litigation. Relying on various

decisions the Ld. Counsel for the assessee submitted that if the

assessee filed return of income in response to notice u/s.153A

declared undisclosed income and the return was accepted by the

Assessing Officer (except small amount of bank interest of

Rs.1,769/- which was not offered by mistake which is bonafide one

that it is exempt u/s.80L which was previous there in the statute)

penalty u/s.271(1)(c) of the I.T. Act cannot be levied. For the above

proposition he relied on the following decisions :

1. Smt. Pramila D. Ashtekar Vs. ITO - (2014) 61 SOT 113

2. Dilip Kedia Vs.ADIT (2013) 40 taxmann.com 102

3. DCIT Vs. Purti Sekhar Karkhana (2013 59 SOT 29

4. Devidas Sukhani Vs. DCIT (2013) 158 TTJ 42

5. CIT Vs. Mahendra Shah (2008) 299 ITR 305

6. CIT Vs. Kirit Dahyabhai Patel (2009) 121 ITD 159

7. CIT Vs. Shri Inderchand Surajmal Bothra - ITA No.137/PN/2010 order dated 30-11-2011.

14. He submitted that when the income has been declared

u/s.132(4) with the condition that no penalty should be levied then

the statement should be accepted in totality and not in part. He 11

submitted that during the course of search the statement of Shri

Ghanshyam Goyal was recorded u/s.132(4) in the presence of Shri

Naresh B. Jindal, Shri Arun S. Agrawal and Shri Anil N. Goyal,

Accordingly, the declaration u/s.132(4) was conditional to the fact

that no concealment of the penalty should be levied.

15. Referring to the decision of the Mumbai Bench of the

Tribunal in the case of DCIT Vs. Goyal Properties and Estates Pvt.

Ltd. vide ITA No.7132/Mum/2010 order dated 07-05-2012 he

submitted that the Tribunal in the said decision has held that

when the assessee has given the declaration during the course of

the survey to file the revised return of income to withdraw the

claim of deduction u/s.80IB(10) with the clear understanding and

assurance that no penalty is to be levied the Department cannot

accept one part of the declaration, i.e., filing of the revised return of

income withdrawing the claim and ignore the other part of income,

i.e. assuring not to levy penalty.

16. Referring to the decision of the Hon'ble Bombay High Court

in the case of CIT Vs. Kiran and Company reported in 217 ITR 326

he submitted that the Hon'ble High Court has upheld the order of

the Tribunal deleting the penalty where the assessee had made

conditional offer of settlement stating that no penalty should be

levied on the assessee. Since the order was made with the clear

understanding that no penalty should be levied penalty levied

u/s.271(1)(c) of the I.T.Act was held as not justified. He also relied

on the following decisions on the above principle :

1. Bhagat & Company Vs. ACIT (2006) 101 TTJ (Mum) 553

2. DCIT Vs. Dr. Satish B. Gupta (2011) 135 TTJ (Ahd) 611

3. Amit Chand Vs. Ito (1994) 49 ITD 606 12

He accordingly submitted that the Ld.CIT(A) has rightly deleted the

penalty levied u/s.271(1)(c) of the I.T. Act and therefore the

grounds raised by the Revenue should be dismissed.

17. The Ld. Departmental Representative in his rejoinder

submitted that after disclosing the additional income the assessee

has not filed the balance sheet as to the manner of its utilisation.

So far as the conditional offer is concerned the Ld. Departmental

Representative referred to the decision of Hon'ble Supreme Court

in the case of Mak Data P. Ltd. reported in 358 ITR 593 and

submitted that the Hon'ble Supreme Court has already decided the

issue under such situation which is against the assessee.

Therefore, the order of the CIT(A) should be reversed and that of

the order of the Assessing Officer be restored.

18. After hearing both the sides, we find the issue involved in

this appeal is identical to the issue involved in the case of Shri

Arun S. Agrawal and others vide ITA Nos. 1433 and

1432/PN/2013 and batch of other appeals. Vide order of even

date we have dismissed the appeal filed by the Revenue by

observing as under :

"15. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find in the instant case a search took place in the residential premises of different persons/associate concerns of the Kalika group of Jalna. The statement of Shri Ghanshyam C. Goyal, who is the main person of the group, was recorded u/s.132(4) of the I.T. Act in which he has declared undisclosed income of Rs.14 crores in the name of 4 persons @ Rs.3.5 crores each, the details of which are as under :

1. Shri Ghanshyam Chunilal Goyal Rs.3.50 Crores

2. Shri Arun Shrikishan Agrawal Rs.3.50 Crores

3. Shri Anil Nandkishor Goyal Rs.3.50 Crores

4. Shri Naresh Banarasidas Jindal Rs.3.50 Crores

-------------------

Total Rs. 14 Crores ------------------ 13

15.1 We find in response to Question No.4 recorded u/s.131 on 17-

08-2009 Shri Ghanshyam C. Agrawal had replied as under :

"Q.No.4 It is to be noted that, as the assessee had claimed all expenses, direct and indirect, during the respective years, hence the total value of the goods so removed shall be unaccounted income of the assessee. Please comment.

Ans:- I deny contention of DGCI that the members of Kalika group as mentioned in Q.No.2 had clandestinely removed the products. Even if it is assumed that such products are removed then a fact may be considered that all indirect expenses were already debited. However, since the purchase of the raw material was not accounted for, hence the credit should be given to the assessee for the same. It is to be considered that the amount of Raw material is incurred @ 60-70% in the case of manufacturing of Ingots/Billets and that of 85-90% for the manufacturing of bars. Hence it would be reasonable to compute the GP @ 35% and 15% respectively of the unaccounted sale so effected. From the record of the company, it can be seen that the cost of the material in the case of the KSAPL & KSJPL is as follows -

KSAPL KSJPL FY 06-07 61.50% FY 06-07 87.80%

FY 07-08 68% FY 07-08 87.70%

Thus, even if the GP rates are accepted 35% and 15% respectively, the unaccounted income would be as follows -

Sr. Name of company F.Y. Amount of goods GP% as No. removed Undisclosed income 1 Kalika Steel Alloys Pvt.Ltd. 06-07 11185330.00 @35-3914936 11107800.00 @35-3887730 2 Kalika Steel Jalna Pvt. Ltd. 06-07 16167552.00 @15-2425133 39954004.00 @i5-5993101 56810071.00 @15-8521511 3 Giriraj Re-Rolls Pvt. Ltd. 05-06 2225850.00 @35-779048 3794717.00 @35-1328151 4 Bhoomi Re-Rolls Pvt. Ltd. 07-08 3514942 @35-1230230

TOTAL 144760566.00 28079840

I want to state that I am disclosing the said amounts to buy peace of mind, however in principle, I am not accepting such result unaccounted sale. The details of the same are as follows -

14

Sr.No Name of Directors FY 05-06 FY 06-07 FY 07-08 company 1 Kalika Ghanshyam -- 1957468 1943865 Steel Alloys G Goyal Pvt.Ltd.

Arun -- 1957468 1943865 Agrawal 2 Kalika Anil Goyal 2996551 1212567 4260756 Steel Jalna Pvt.Ltd. Naresh 2996551 1212567 4260756 Jindal 3 Giriraj Re- Ghanshyam 779048 -- 1328152 Rolls Pvt.Ltd. G Goyal

4 Bhoomi Re- Anil Goyal -- 615115 Rolls Sunil Goyal -- -- -- 615115 Pvt.Ltd. TOTAL 6772150 6340070 1,49,67,624

15.2 Similarly we find in reply to Question No.16 of the said statement he has given the bifurcation of the amount of Rs.14,01,61,595/- the details of which are as under :

"Q.No.16 Would you like to say anything further?

Ans: Yes, want to state that as a result of the search action I am offering the amount of Rs.14,01,61,595/-. The details of the same are as follows :

Sr.No. Particulars Amount 1. On account of unaccounted sale as 2,80,79,844 per details mentioned in (Question No.2 & 3) 2. Investment in Stock (Question 2,55,52,503 No.14) 3. Unaccounted sale/petty loans in 10,00,000 case of Shri Anil R. Goyal (Question No.6) 4. Investment in Construction 86,48,831 (Question No.5) 5. Investment in stock of Sagar 24,35,417 Paridhan Pvt. Ltd., (Question No.7) 6. Investment in furniture in Sagar 5,00,000 Paridhan Pvt. Ltd., (Quesetion No.7) 7. Unaccounted Income from badla 85,10,000 transaction (Question No.10) 8. Unaccounted transactions as 6,54,35,000 explained (Question No.13) TOTAL 14,01,61,595 15

The assessee declared an amount of Rs.19,57,468/- as undisclosed income for the impugned assessment year which is a part of unaccounted sale of the companies at Rs.2,80,79,844/- and which has been accepted by the Assessing Officer in the return of income. However, he initiated penalty proceedings u/s.271(1)(c) of the I.T. Act read with Explanation 5A and levied penalty of Rs.6,58,884/-. We find the Ld.CIT(A) deleted the penalty holding that the profit offered to tax by the directors of the different companies including the assessee in their hands in fact belongs to the said companies which have been earned by the said companies from their manufacturing activity. Therefore, such income has to be taxed in the hands of the respective companies and not in the hands of the directors. According to the Ld.CIT(A) it is the settled proposition of law that in order to levy penalty u/s.271(1)(c) there has to be income of the assessee in respect of which particulars have been concealed. Since in the instant case it is not the income of the assessee and the income belongs to that of the respective companies, therefore, penalty u/s.271(1)(c) of the I.T.

Act cannot be levied by invoking either Explanation 1 or Explanation 5A to provisions of section u/s.271(1)(c) of the I.T. Act. He accordingly deleted the addition. We do not find any infirmity in the above finding given by the Ld.CIT(A). Even in the hands of the company, the assessee in principle has not accepted the result of such unaccounted sale which has been categorically stated by Shri Ghanshyam C. Goyal in his reply to Question No.4. As per the provisions of Explanation 5A to section 271(1)(c) penalty cannot be levied if search took place on or after 01-06-2007 and the assessee is found to be the owner of any asset such as money, bullion, jewellery or other valuables etc or owner of any income based of any entry in books of account and he claims that such entry in the books of accounts represents his income. Therefore, in the instant case although the search has taken place after 01-06-2007, however, the fact remains that in view of second limb of the Explanation 5A no penalty can be levied if the assessee does not claim that such an entry represents his income. In the instant case the income declared and accepted by the assessee in the return filed in response to notice u/s.153A as undisclosed income is actually belongs to the company and he is not the owner of such income.

The Ld. Counsel for the assessee also made a statement at the Bar that the assessee has not taken any benefit out of the amount disclosed. The tax paid on such undisclosed income has gone waste as no benefit out of such income has been availed by the assessee. Therefore, we are of the considered opinion that this is not a fit case for levy of penalty u/s.271(1)(c) read with Explanation 5A. The order of the CIT(A) is therefore upheld and the grounds raised by the Revenue are dismissed.

16. Similar penalty of Rs. 6,63,642/- has been deleted by CIT(A) in A.Y. 2008-09 for which Revenue has filed appeal vide ITA No.1432/PN/2013. Facts being similar, therefore, following same reasonings, the appeal filed by the Revenue for A.Y. 2008-09 is also dismissed."

19. Since facts of the impugned appeal is identical to the facts of

the case decided in the cases cited (Supra), therefore, following our

reasonings in the above cited case we find no infirmity in the order 16

of Ld.CIT(A) cancelling the penalty levied u/s.271(1)(c) of the I.T.

Act. The grounds raised by the Revenue are accordingly dismissed.

20. Similar penalty has been deleted by the CIT(A) amounting to

Rs.4,06,946/- in A.Y. 2007-08 and Rs.14,57,186/- in A.Y. 2008-

09. The Revenue has filed appeals against such order of CIT(A) vide

ITA Nos. 1444 and 1445/PN/2013. Facts being similar to ITA

No.1443/PN/2013, therefore, following similar reasonings the

appeals filed by the Revenue for A.Yrs. 2007-08 &2008-09 are also

dismissed.

21. In the result, all the three appeals filed by the Revenue are

dismissed.

Pronounced in the open court on 26-06-2015.

Sd/- Sd/- (VIKAS AWASTHY) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER

satish Pune Dated: 26th June, 2015

Copy of the order forwarded to :

1. Assessee 2. Department 3. CIT(A), Aurangabad 4. CIT, Aurangabad 5. The D.R, "A" Pune Bench 6. Guard File

By order

// True Copy // Senior Private Secretary ITAT, Pune Benches, Pune