Sri Ravi Shankar Gupta, Kolkata V. ITO, Ward-49(4), Kolkata, Kolkata

ITA 1358/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1632 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 21-09-2012
• Court: TRIBUNAL
• Department Lawyers: R P NAG
• Assessee Lawyers: ANIKESH BANERJEE
• Keywords: Gift

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () . .. . . .. . , ,, , , ! ''# $ ''# $ ''# $ ''# $ ] ]] ] [BEFORE HONBLE SRI P.K.BANSAL, AM & HONBLE SRI GEORGE MATHAN, JM] !& !& !& !& /ITA NO.1358/KOL/2012 '( )*/ ASSESSMENT YEAR : 2005-06 ($, / APPELLANT ) - - ( ./$, /RESPONDENT) SHRI RAVI SHANKAR GUPTA I.T.O., WARD-49(4), KOLKATA -VERSUS- KOLKATA (PAN: AGOPG 8463 B) $, 0 1 / FOR THE APPELLANT: SHRI ANIKESH BANERJEE ./$, 0 1 / FOR THE RESPONDENT: SHRI R.P.NAG, SR.DR 2 3 0 4 /DATE OF HEARING : 04.02.2013 5) 0 4 /DATE OF PRONOUNCEMENT : 04.02.2013. 6 / ORDER PER BENCH THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. C.I.T.(A), KOLKATA IN APPEAL NO.29/XXXII/11-12/49(4)/KOL DATED 14.06.2012 FOR ASSESSMENT YEAR 2005-06 AGAINST THE CONFIRMATION OF LEVY OF PE NALTY U/S 271(1)(C) OF THE ACT. 2. SHRI ANIKESH BANERJEE, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI R.P.NAG,.SR.DR REPRESENTED ON BEHALF OF THE R EVENUE. 3. IN THE ASSESSEES APPEAL THE ASSESSEE HAS RAISE D THE FOLLOWING GROUNDS :- 1. FOR THAT THE ORDER U/S 271(1)(C) OF THE ACT IS VOID & ILLEGAL. 2. FOR THAT THE PENALTY OF RS.71,951/- IS ARBITRARY & BAD IN LAW. 3. FOR THAT YOUR PETITIONER PRAYS TO PLACE NEW CONT ENTIONS AND ANY ADDITIONAL GROUND OR GROUNDS AT ANY TIME BEFORE DISPOSAL OF THE APPEAL P ETITION. 4. IT WAS SUBMITTED BY THE LD. AR THAT IN THE COUR SE OF ASSESSMENT THE GIFTS CLAIMED BY THE ASSESSEE TO THE EXTENT OF RS.2,37,00 0/- HAD BEEN DISBELIEVED AND THE ADDITION HAD BEEN MADE OF THE SAID AMOUNT. IT WAS T HE SUBMISSION THAT CONSEQUENTLY ITA NO.1358/KOL/2012 2 PENALTY HAD BEEN LEVIED ON THE ASSESSEE. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD PRODUCED ALL THE EVIDENCES TO PROVE THE GIFTS. IT W AS THE SUBMISSION THAT THE ASSESSEE HAD ALSO REPLIED TO THE SHOW CAUSE NOTICE ISSUED BY THE AO. IT WAS THE SUBMISSION THAT THE EXPLANATION GIVEN BY THE ASSESSEE WAS NOT ACCEP TED AND PENALTY WAS LEVIED WHICH WAS ALSO CONFIRMED BY THE LD. CIT(A). IT WAS THE SU BMISSION THAT THE ASSESSEE HAVING PRODUCED ALL THE EVIDENCES CALLED FOR BY THE AO IN RESPECT OF THE GIFT AND SUCH EVIDENCES HAVING NOT BEEN FOUND TO BE FALSE, JUST B ECAUSE THE ADDITION HAD BEEN MADE BY REJECTING THE EXPLANATION OF THE ASSESSEE, NO PE NALTY WAS LEVIABLE. 5. IN REPLY THE LD. DR VEHEMENTLY SUPPORTED THE ORD ER OF THE LD. CIT(A) AND THE AO. IT WAS THE SUBMISSION THAT THE GENUINENESS OF T HE GIFTS HAVING NOT BEEN PROVED THE PENALTY WAS RIGHTLY LEVIED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ASSESSMENT ORDER IN THE ASSESSEES CASE SHOWS THAT AT THE OUTSET THE AO HAS NOT SPECIFICALLY MENTIONED AS TO FOR WHICH DEFAULT THE PENALTY HAS BEEN INITIATED . THUS WE FIND THAT THE INITIATION ITSELF IS PRIMA FACIE INVALID AND ON THIS GROUND IT SELF THE PENALTY IS LIABLE TO BE DELETED AND WE DO SO. 6.1. EVEN GOING INTO THE MERITS, A PERUSAL OF THE A SSESSMENT ORDER AS ALSO THE ORDER LEVYING PENALTY SHOWS THAT THE AO HAS MENTIONED THA T THE SOURCE OF THE GIFTED AMOUNT BY THE DONOR HAD NOT PROPERLY BEEN EXPLAINED BY THE ASSESSEE.. FURTHER HE PROCEEDS TO MENTION THAT IT APPEARS THAT DOCUMENTS AS ENCLOSED BY THE CONCERNED PARTIES WERE ONLY FACADE TO IMPART A STAMP OF GENUI NENESS AND AUTHENTICITY TO TRANSACTION WHICH WAS REALITY NEVER OCCURRED AS SUC H. THE FACT THAT THE AO HAS SPECIFICALLY MENTIONED THAT THE TRANSACTION HAS NOT BEEN PROPERLY EXPLAINED AS ALSO THAT IT APPEARS THAT THE DOCUMENTS ARE ONLY FAADE CLEAR LY SHOW THERE STILL REMAINS DOUBT IN THE MIND OF THE AO THAT THE TRANSACTIONS CAN BE GEN UINE BUT THE DOCUMENTS PRODUCED ARE NOT ADEQUATE TO HIS SATISFACTION IN RESPECT OF THE GENUINENESS. THUS WHAT IS NOTICED IS THAT THE ADDITION IS MADE ONLY ON DOUBT IN THE M IND OF THE AO. THE DOUBT IN THE MIND OF THE AO DOES NOT GIVE GROUND FOR LEVY OF PEN ALTY. FURTHER THE REVENUE HAS NOT BEEN ABLE TO SHOW THAT THE EVIDENCES PRODUCED BY TH E ASSESSEE ARE FALSE OR FABRICATED. ITA NO.1358/KOL/2012 3 IN FACT THE STATEMENT OF THE AO GIVES CREDENCE TO T HE EVIDENCES PRODUCED BY THE ASSESSEE THAT THERE CAN BE TRUTH IN THOSE DOCUMENTS AND ON THIS GROUND ALSO AS NO SPECIFIC CONCEALMENT HAS BEEN PROVED AGAINST THE AS SESSEE AND THE EVIDENCES PRODUCED BY THE ASSESSEE HAVING NOT BEEN SHOWN TO BE FALSE T HE PENALTY IS NOT LEVIABLE. ON THIS GROUND ALSO THE PENALTY IS LIABLE TO BE CANCELLED A ND WE DO SO. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.02.2013. SD/- SD/- [ .., ,, , ] [ .''# $ , ] [P.K.BANSAL] [ GE ORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( (4 4 4 4) )) ) DATE: 04.02.2013. R.G.(.P.S.) 6 0 .''7 87)9- COPY OF THE ORDER FORWARDED TO: 1. SHRI RAVI SHANKAR GUPTA, JF-6, DEBANGAN APARTMENT, ASWNININAGAR, KOLKATA-59. 2 THE I.T.O., WARD-49(4), KOLKATA 3 . C.I.T. KOLKATA 4. C.I.T. (A) KOLKATA 5. C.I.T.(DR), KOLKATA BENCHES, KOLKATA /7 .'/ TRUE COPY, 62/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES