Mahek Pritpal Jhamtani, Pune V. ACIT, Central Cirlce-1(2), Pune

ITA 1068/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9918 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-10-2012
• Assessment Year: 1999-2000
• Appeal Filed On: 23-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Gift; Search and seizure
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1068/PN/2011 (ASSTT. YEAR : 199 9-2000) MAHEK PRITPAL JHAMTANI, APPELLANT C/O SHAH KHANDELWAL JAIN & ASSOCIATES CHARTERED ACCOUNTANTS LEVEL 3, BUSINESS BAY, PLOT NO.84, WELLESLEY ROAD, NEAR RTO, PUNE: 411 001 PAN : ACIPM4116D V. ASSISTANT COMMISSIONER OF INCOME TAX, RESPONDENT CEN-CIR : 1(2) PUNE APPELLANT BY : SHRI N ILESH KHANDELWAL RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 11/10/1 2 DATE OF PRONOUNCEMENT : 19TH-10-12 O R D E R PER R.S. PADVEKAR, JM IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IM PUGNED ORDER OF THE LD CIT(A), CENTRAL, PUNE DATED 27/5/2011 FOR TH E A.Y. 1999-2000. THE ASSESSEE HAS TAKEN FOLLOWING EFFECTIVE GROUND : 1. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE C ASE AND AS PER PROVISIONS OF THE ACT IT BE HELD THAT, PENALTY IMPO SED U/S. 271(1)(C), BY THE AO AND THAT CONFIRMED BY THE 1 ST APPELLATE AUTHORITY IS UNWARRANTED, UNJUSTIFIED, CONTRARY TO THE PROVISIONS OF LAW AND FACTS PREVAILING IN THE CASE. IT FURTHER BE HELD THAT IT IS NOT THE FIT CA SE FOR IMPOSITION OF PENALTY IN TERMS OF PROVISIONS OF SEC. 271(1)(C) OF THE ACT . IT FURTHER BE HELD THAT NO PENALTY SHOULD HAVE BEEN IMPOSED U/S. 271(1)(C ) OF THE ACT. THE PENALTY IMPOSED BY THE AO & THAT CONFIRMED BY THE 1 ST APPELLATE AUTHORITY U/S. 271(1)(C ) BE DELETED. 2. THE FACTS REVEAL FROM THE RECORD ARE AS UNDER. THERE WAS A SEARCH AND SEIZURE ACTION U/S. 132(1) OF THE ACT IN JHAMTA NI GROUP OF CASES ON 09/12/2004 AND PRESENT ASSESSEE IS A MEMBER OF JHAM TANI GROUP. IN CONSEQUENCE OF SEARCH AND SEIZURE OPERATION, ASSESS MENT OF THE ASSESSEE WAS COMPLETED U/S. 143(3) R.W.S. 153A/153C. IT IS NOTED IN THE ASSESSMENT ORDER THAT MEMBERS OF THE JHAMTANI GROUP HAVE RECEIVED SUBSTANTIAL GIFTS FROM VARIOUS PERSONS DURING THE L AST SEVERAL YEARS. IT 2 ITA NO. 1068/PN/2011 MAHEK PRITPAL JHAMTANI A.Y.1999-2000 WAS ALSO NOTICED THAT DURING THE YEAR, THE ASSESSEE HAS CLAIMED TO RECEIVE A GIFT OF RS.2,41,000/- FROM VARIOUS PERSON S OF THE ULLASNAGAR. THE ASSESSEE FAILED TO PROVE THE RELATIONSHIPS OF T HE DONORS AS WELL AS OCCASION OF THE GIFT, HENCE, THE ADDITION OF RS. 2 ,41,000/- WAS MADE IN THE HANDS OF THE ASSESSEE TREATING SAME AS NON-GENU INE. THOUGH THE ASSESSEE CHALLENGED THE ADDITIONS BEFORE THE ITAT, BUT THE SAME WAS UPHELD. THE A.O INITIATED THE PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT AND LEVIED THE PENALTY. THE LD CIT(A) CONFIRME D THE PENALTY LEVIED BY THE A.O. NOW THE ASSESSEE IS IN APPEAL BEFORE U S. 3. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBM ITS THAT THE A.O HAS ALSO LEVIED THE PENALTY U/S. 271(1)(C ) ON THE OTHER FAMILY MEMBERS ON THE IDENTICAL SET OF FACTS I.E. ADDITIONS MADE B Y DISALLOWING THE CLAIM OF GIFTS. HE SUBMITS THAT THE TRIBUNAL HAS DELETED TH E PENALTY LEVIED U/SEC. 271(1)(C) BY THE A.O IN THE CASE OF OTHER FAMILY ME MBERS. THE LD COUNSEL ALSO FILED COPY OF THE ORDER OF THE TRIBUNA L IN THE CASE OF HEENA ISHWAR JHAMTANI AND OTHERS VS. ASSTT. CIT, CEN. CIR . 1(2), PUNE BEING ITA NO. 1069, 1070, 1071, AND 1072/PN/2011 DATED 29 .8.2012. WE HAVE ALSO HEARD THE LD. D.R. 4. WE FIND THAT IN THE CASE OF HEENA ISHWAR JHAMTA NI & OTHERS (SUPRA), ON THE IDENTICAL SET OF FACTS, PENALTY LEV IED BY THE A.O. AND CONFIRMED BY THE CIT(A) IN THOSE CASES HAVE BEEN DE LETED BY THE TRIBUNAL. THE OPERATIVE PART OF THE ORDER OF THE T RIBUNAL IS AS UNDER : 5. IN THIS CASE, AS MENTIONED EARLIER THE ADDITION S HAVE BEEN CONFIRMED BY THE TRIBUNAL. IT IS NECESSARY TO REPR ODUCE THE REASONS GIVEN BY THE TRIBUNAL FOR CONFIRMING THE ADDITIONS WHICH ARE AS UNDER. 6. I FIND THAT THE ASSESSEES HAVE GIVEN REASONABLE EVIDENCE WITH REGARD TO THE IDENTITY OF THE DONOR, WITH REGARD TO THE MEANS OF THE DONOR AND WITH REGARD TO THE FACT THAT GIFTS WERE INDEED GIVEN. HOWEVER, THERE IS NO MATERIAL ON RECORD TO ESTABLISH THE RELATIONS HIP BETWEEN THE DONOR AND THE ASSESSES SO AS TO JUSTIFY THE GIFTS RECEIVE D. THE ASSESSEES HAVE ALSO NOT EXPLAINED THE OCCASION ON WHICH THE GIFTS WERE RECEIVED BY THE ASSESSEES. THEREFORE, DESPITE THE FACT THAT THE RE ASONABLE DETAILS ARE GIVEN BY THE ASSESSEES. I AM INCLINED TO HOLD THAT THE OCCASION IN WHICH THE GIFTS WERE RECEIVED IS NOT CONCLUSIVELY ESTABLI SHED. UNDER THESE CIRCUMSTANCES I UPHOLD THE ACTION OF THE AUTHORITI ES BELOW IN MAKING THE ADDITIONS ON ACCOUNT OF AMOUNTS OF GIFTS RECEIVED B Y THE ASSESSEES. THUS, THE GRIEVANCE RAISED BY THE ASSESSEES IS REJECTED. 6. WE FIND THAT WHILE CONFIRMING THE ADDITIONS IT I S ACCEPTED THAT REASONABLE DETAILS ARE GIVEN BY THESE ASSESSEES IN RESPECT OF THE DONORS. WE FURTHER FIND THAT EVEN BEFORE THE LD. CIT(A) ASS ESSEES FILED FULL DETAILS OF THE ALLEGED DONORS LIKE NAME, THEIR FULL ADDRES SES, PERMANENT ACCOUNT 3 ITA NO. 1068/PN/2011 MAHEK PRITPAL JHAMTANI A.Y.1999-2000 NOS., WARD WHERE THEY ARE ASSESSED. NOWHERE IT IS DISPUTED THAT THE ASSESSEE RECEIVED MONEY FROM THOSE ALLEGED DONORS. NOTHING THERE IS ON RECORD TO SUGGEST THAT INFACT THE ALLEGED GIFTS WER E NOT RECEIVED BY THE ASSESSEE AS CLAIMED. THE TRIBUNALS CONFIRMED THE A DDITIONS QUESTIONING THE GENUINENESS OF THE GIFTS AND RIGHT SO BUT THE QUESTION BEFORE US IS CAN DOUBT OF THE GENUINENESS OF THE GIFT JUSTIFY T HE LEVY OF PENALTY U/S. 271(1)(C ), WHERE IDENTIFY, SOURCE AND CREDITWORTHI NESS OF PERSONS AND PARTIES HAVE NOT BEEN DISPUTED. ADMITTEDLY ASSESSE E HAS FILED ALL THE PARTICULARS IN RESPECT OF THOSE TRANSACTIONS. MERE LY BECAUSE NATURE OF THE TRANSACTIONS IS NOT ACCEPTED THAT CAN BE THE GROUND TO LEVY THE PENALTY U/S. 271(1)(C ) AS IT CANNOT BE SAID THAT THE ASSES SEE HAS CONCEAL PARTICULARS OF INCOME. IN OUR OPINION, THE LEVY OF PENALTY IN THE CASE OF THESE ASSESSEES IS NOT JUSTIFIED. WE ARE UNABLE T O SUPPORT THE VIEW TAKEN BY THE LD. CIT(A) FOR CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER. 7. WE, THEREFORE, DELETE THE PENALTIES IN ALL THE C ASES OF ASSESSEES IN RESPECT OF ASSESSMENT YEARS BEFORE US AND ALLOW THE IR APPEALS. 5. AS THE FACTS ARE IDENTICAL IN THIS CASE, WE FIND NO REASON TO TAKE THE DIFFERENT VIEW. WE, ACCORDINGLY, DELETE THE PENALT Y LEVIED BY THE A.O IN THIS CASE ALSO. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 19TH OCTOBER 2012. SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (R.S.PADVEKAR ) JUDICIAL MEMBER PUNE, DATED THE 19TH OCTOBER, 2012 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT,(CENTRAL), PUNE 4. THE CIT(A),CENTRAL, PUNE 5. THE D.R. A BENCH, PUNE 6. GUARD FILE /- TRUE COPY-/ BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE