M/s. Amrutlal Punjabhai Patel(HUF), Surat V. The Income tax Officer,Ward-3(2), Surat

ITA 1710/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9261 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 09-12-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 11-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMIT KUMAR VARMA
• Assessee Lawyers: ANIL K SHAH
• Keywords: Reopening of assessment; Gift; Opportunity of being heard; Question of law; Assessment record
• Section: 147; 27; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NOS. 1710 & 1711/AHD/2013 / ASSESSMENT YEAR : 2003-04 M/S. AMRUTLAL PUNJABHAI PATEL HUF), C/O. DR. DIPAK PATEL, 1 ST FLOOR, WELCOME TOWER, TADWADI, RANDER ROAD, SURAT - 395009 PAN : AAEHP 8694 P VS ITO, WARD 3 (2), SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI ANIL K SHAH, AR REVENUE BY : SHRI SUMIT KUMAR VARMA, DR DATE OF HEARING : 09 /12/2016 DATE OF PRONOUNCEMENT IN COURT : 06/02/20 17 / O R D E R THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST THE ORDERS OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-IV , SURAT DATED 25.03.2013 & 31.03.2013 FOR ASSESSMENT YEAR 2003-04 . ONE APPEAL AGAINST THE QUANTUM ADDITION AND OTHER AGAINST THE PENALTY LEVIED U/S 271(1)(C) AMOUNTING TO RS.6,09,972/. 2. THE GROUNDS RAISED IN ITA NO.1710/AHD/2013, I.E. QUANTUM APPEAL, READ AS UNDER: (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE SUBJECT, THE CIT(A) HAS WRONGLY HELD THAT THE 'A' HAD NOT ARGUE D GR. NO.2 CHALLENGING THE RE-OPENING OF THE ASSESSMENT U/S 148. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE & LAW ON THE SUBJECT, THE CIT(A) HAS TOTALLY IGNORED THE AFFIDAVIT OF THE COU NSEL REGARDING THE ARGUMENTS BEFORE CIT(A). (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE & LAW ON THE SUBJECT, THE CIT(A) HAS WRONGLY HELD THAT THE PROCEEDING U/S 148 HAD BEEN VALIDLY INITIATED. (4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE SUBJECT, THE CIT(A) HAS WRONGLY DISALLOWED OUR CLAIM TO RAISE AD DITIONAL GROUND OF SMC-ITA NOS. 1710 & 1711/AHD/2013 M/S AMRUTLAL PUNJABHAI PATEL (HUF) VS. ITO AY : 2003-04 2 APPEAL REGARDING THE NON-ISSUE OF THE NOTICE U/S 14 3(2) BEFORE MAKING THE ASSESSMENT. 2.1 THE LD. COUNSEL FOR THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND OF APPEAL AS UNDER:- THE LEARNED AO HAS WRONGFULLY MADE THE ADDITION ON ACCOUNT OF GIFT RECEIVED AS UNDER:- A. SANTOKBEN P. PATEL RS.8,28,000/- B. SANTOKBEN P. PATEL (ORNAMENT) RS.2,12,826/- C. AMRUTLAL P. PATEL RS.9,00,000/- ----------------- RS.19,40,826/- ========== 3. THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT T HIS IS SECOND ROUND OF APPEAL. THE ITAT, AHMEDABAD BENCH VIDE ORDER DATED 22.02.2011 IN ITA NO.3740/AHD/2008 HAD SET ASIDE THE MATTER TO LD. CI T(A) BY FOLLOWING OBSERVATIONS:- 4.1 CONSIDERING THE TOTALITY OF THE FACTS AND C IRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT IT WILL MEET THE ENDS OF JUSTI CE, IF THE IMPUGNED ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS SET ASIDE AND HE BE DIRECTED TO VERIFY WHETHER THE COUNSEL OF THE ASSESSEE ACTUA LLY ARGUED THE GROUND NO.2 CHALLENGING THE REOPENING OF ASSESSMENT UNDER SECTI ON 148 OF THE I.T. ACT, 1961. AFTER ADJUDICATING THIS GROUND OF APPEAL, IF REQUIRED, LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WILL ADJUDICATE THE REMAINING GROUNDS OF APPEAL, IN ACCORDANCE WITH LAW, AFTER GI VING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. RESULTANTLY, FOR STATISTIC AL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 3.1 CONSEQUENT THERETO, LD. CIT(A) RE-DECIDED THE A PPEAL AS UNDER:- 4. DECISION: THE HON'BLE ITAT HAD DIRECTED THAT IT SHOULD BE VERIFIED WHETHER THE APPELLANT HAD ARGUED THE GROUND NO.2 CH ALLENGING THE REOPENING OF ASSESSMENT U/S. 148 BEFORE THE CIT(A). THE CIT(A ) IN HIS ORDER DATED 25.07.2008 HAS MENTIONED, 'GROUND NO. 1 - IN THIS GROUND OF APPEAL, THE ASSES SES HAS CONTESTED THE INITIATION OF PROCEEDINGS U/S. 147, AND THE CON SEQUENT ISSUE OF NOTICE U/S. 148 OF THE IT ACT. SMC-ITA NOS. 1710 & 1711/AHD/2013 M/S AMRUTLAL PUNJABHAI PATEL (HUF) VS. ITO AY : 2003-04 3 FROM THE WRITTEN SUBMISSIONS, I FIND THAT THE AR HA S NOT PRESENTED ANY ARGUMENT ON THIS GROUND OF APPEAL, WHICH INDICA TES THAT EITHER THE AR IS NOT KEEN TO PRESS THIS GROUND, OR HAS NO SUBS TANTIVE ARGUMENT AGAINST THE ACTION TAKEN BY THE AO, WHICH IS THEREF ORE SUSTAINED AND THE ASSESSEE'S APPEAL IS DISMISSED.' 4.2 DURING THE PRESENT APPEAL PROCEEDINGS, THE AP PELLANT WAS ASKED TO PRODUCE THE COPY OF THE SUBMISSIONS MADE BEFORE THE CIT(A) (MY PREDECESSOR) IN THE APPEAL PROCEEDINGS BEFORE HIM B UT THE APPELLANT DID NOT FILE THE COPY OF THE WRITTEN SUBMISSIONS WHICH HE H AD FILED DURING THE COURSE OF APPEAL PROCEEDINGS ON 1.07.2008. THIS ONLY CONFI RMS THAT THE APPELLANT HAD NOT PRESENTED ANY ARGUMENT IN ITS WRITTEN SUBMI SSION ON THIS GROUND OF APPEAL BEFORE THE CIT(A) WHEN THE HEARING TOOK PLAC E ON 01.07.2008. 4.3 DURING THE PRESENT APPEAL PROCEEDINGS WHICH ARE FOR LIMITED PURPOSE OF VERIFYING WHETHER ANY SUBMISSIONS/ARGUMENTS WERE MADE AGAINST THE VALIDITY OF REOPENING OF ASSESSMENT, THE APPELLANT HAS CHOSEN TO RELY ON VARIOUS CASE LAWS WHICH ARE NOT RELEVANT TO THE FAC TS OF HIS CASE RATHER THAN PRODUCING EVIDENCES WHICH COULD SHOW THAT THE ISSUE WAS PURSUED BEFORE MY PREDECESSOR IN APPELLATE PROCEEDINGS. 4.4 IN VIEW OF THE ABOVE FACTS AND DISCUSSIONS, IT IS HELD THAT THE APPELLANT HAS NOT MADE ANY ARGUMENTS ON THE VALIDITY OF THE R EASSESSMENT PROCEEDINGS BEFORE MY PREDECESSOR AND THEREFORE THE GROUND NO.2 REGARDING REOPENING OF ASSESSMENT WAS CORRECTLY DISMISSED BY MY PREDECESSO R VIDE HIS ORDER DTD. 25- 07-2008. THE OTHER GROUNDS OF APPEAL HAVE BEEN DEAL T IN DETAIL AND ADJUDICATED BY CIT(A) IN HIS ORDER DTD. 25-07-2008 AND THESE ARE NOT REQUIRED TO BE ADJUDICATED AGAIN AS NO FRESH FACTS HAVE BEEN SUBMITTED BEFORE ME. 4.5. DURING THE PRESENT APPELLATE PROCEEDINGS BEFOR E ME, THE APPELLANT RAISED AN ADDITIONAL GROUND OF APPEAL WHICH HAD NOT BEEN R AISED EITHER BEFORE THE ITAT OR THE CIT(A). THE APPELLANT SUBMITTED THAT NO TICE U/S. 143(2) HAD NOT BEEN ISSUED BY THE AO. IT IS SEEN THAT THE APPELLAN T HAD NEVER CHALLENGED BEFORE THE AO OR THE CIT(A) OR THE ITAT THAT NOTICE U/S. 143(2) HAD NOT BEEN ISSUED TO HIM WITHIN THE STIPULATED TIME. THIS GROU ND OF APPEAL WAS RAISED FOR THE FIRST TIME WHEN THE APPELLANT FILED A FRESH FORM NO.35 ON 17.03.2012. THIS ADDITIONAL GROUND OF APPEAL FILED BY THE APPEL LANT CANNOT BE ADMITTED AS THIS WAS NEVER RAISED BEFORE THE ITAT & THE HON'BLE ITAT VIDE ITS ORDER DATED 22.02.2011 SET ASIDE SPECIFIC ISSUE TO THE CI T(A) WITH A VERY SPECIFIC DIRECTIONS WHICH WAS 'TO VERIFY WHETHER THE COUNSEL OF THE ASSESSEE ACTUALLY ARGUED THE GROUND NO. 2 CHALLENGING THE REOPENING O F ASSESSMENT UNDER SEC. 148 OF THE IT ACT, 1961.' THE JURISDICTION OF THE U NDERSIGNED IN THE PRESENT PROCEEDINGS ARE ONLY FOR THIS LIMITED PURPOSE AND N O MORE. THEREFORE CONSIDERING THIS, THE ADDITIONAL GROUND OF APPEAL F ILED ON 17.03,2012 SMC-ITA NOS. 1710 & 1711/AHD/2013 M/S AMRUTLAL PUNJABHAI PATEL (HUF) VS. ITO AY : 2003-04 4 SUBSEQUENT TO THE ORDER OF THE CIT(A) AND THE HON'B LE ITAT CANNOT BE ADMITTED. 3.2 THE LD. COUNSEL FOR THE ASSESSEE PLACED RELIANC E ON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERM AL POWER CORPORATION V. CIT, REPORTED IN 229 ITR 383 (SC). 3.3 THE LD. DEPARTMENTAL REPRESENTATIVE OPPOSED THE ADMISSION OF ADDITIONAL GROUND CONTENDING THAT THE ISSUE WAS SET ASIDE BY THE ITAT FOR THE LIMITED PURPOSE OF VERIFYING WHETHER GROUND NO. 2 OF THE ASSESSEE CHALLENGING THE REOPENING WAS RAISED AND IF SO, ADJ UDICATED. THE ADDITIONAL GROUND BEING RAISED BY THE ASSESSEE WAS NOT RAISED IN THE ORIGINAL PROCEEDINGS, IT IS BEYOND THE PURVIEW OF THE ORDER OF ITAT. BESIDES, IT IS TOTALLY A NEW GROUND, FACTUAL IN NATURE AND WILL RE QUIRE ADJUDICATION OF FACTS. CONSEQUENTLY, THE ADDITIONAL GROUND SHOULD NOT BE ADMITTED. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. I FIND MERIT IN THE CONTENTION OF LD. DR THAT THE SUBJECT MATTER IN THIS APPEAL IS CONSEQUENT TO SETTING ASIDE ORDER WHICH WAS FOR ONLY A LIMITED PURPOSE AS MENTIONED ABOVE AND POINTED OUT BY THE LD. DR. THE JUDGMENT O F HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORA TION (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE SC OPE OF ITAT DIRECTION CANNOT BE INCREASED ON THE SET ASIDE MATTER. FURTH ER, THE CLAIM MADE BY THE ASSESSEE IS FACTUAL IN NATURE AND REQUIRES EXTENSIV E VERIFICATION OF FACTS. THIS WAS NOT RAISED BEFORE THE ORIGINAL PROCEEDINGS. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE CANNOT BE ADMITTED. THEREFORE, THE PLEA IN THIS BEHALF IS DI SMISSED. 5. APROPOS MAIN GROUNDS, LD. COUNSEL FOR THE ASSESS EE REITERATED THE AFFIDAVIT FILED BEFORE THE LOWER AUTHORITIES AND WR ITTEN SUBMISSIONS TO THE SMC-ITA NOS. 1710 & 1711/AHD/2013 M/S AMRUTLAL PUNJABHAI PATEL (HUF) VS. ITO AY : 2003-04 5 EFFECT THAT THERE IS NEITHER SUFFICIENT REASON FOR REOPENING OF ASSESSMENT NOR THERE IS ISSUANCE OF NOTICE U/S 143(2) OF THE ACT A ND THE ITAT HAS JURISDICTION TO EXAMINE A QUESTION OF LAW ARISING F ROM THE FACTS. RELIANCE IS PLACED ON FOLLOWING HIGH COURT JUDGMENTS:- I) CIT VS. CELLULOSE PRODUCTS OF INDIA LTD, (1985) 151 ITR 499 (FB), II) CIT VS. NATIONAL THERMAL POWER CO. LTD, 157 CTR 024 9 III) CIT VS. SMT. MANIBEN VALJI SHAH, 204 CTR 0249 IV) CIT VS. GENO PHARMACEUTICALS LTD, 32 TAXMAN.COM 162 V) CIT VS. MR. SALMAN KHAN IN ITA NO.2362 OF 2009 6. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HA ND, VEHEMENTLY CONTENDS THAT THE LD. CIT(A) IN CATEGORICAL TERMS, AFTER DUE VERIFICATION OF RECORDS, HAS HELD THAT NO ARGUMENTS WERE MADE BY TH E ASSESSEE AT THE TIME OF HEARING, NO 154 APPLICATION WAS EVER FILED BEFOR E THE CIT(A) TO INDICATE THAT GROUND NO.2 REGARDING RE-OPENING WAS CONTESTED AND NOT DECIDED. THE ASSESSEE IS BUILDING SMALL TRICK TO WRIGGLE OUT OF THE SITUATION BY HOOK OR BY CROOK AND ENTERED IN MULTIPLICITY OF PROCEEDI NGS TO DIVERGE THE ATTENTION FROM ACTUAL FACTS. 7. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. FROM THE RECORD, IT EMERGES THAT THE ASSESSEE FILED AFFIDAVI T BEFORE THE LOWER AUTHORITIES AND THE RELEVANT PART OF WHICH READS AS UNDER:- 02. DURING THE PERSONAL HEARING, I HAD CONTESTED T HE INITIATION AND VALIDITY OF PROCEEDINGS UNDER SECTION 147 AND CONSEQUENT ISS UE OF NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961. I HA D ARGUED THIS GROUND IN DETAIL AND PRODUCED JUDICIAL PRONOUNCEMENTS IN SUPP ORT OF MY ARGUMENTS BUT TO MY GREAT SURPRISE, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS STATED THAT AR IS NOT KEEN TO PRES S THIS GROUND OR HAS NO SUBSTANTIVE ARGUMENT AGAINST THE ACTION TAKEN BY TH E AO AND HE DISMISSED MY APPEAL. I REITERATE THAT I HAD VEHEMENTLY ARGUED THE VALIDI TY OF THE PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT,1961 BEFORE THE CIT(A)-II, SURAT. I SMC-ITA NOS. 1710 & 1711/AHD/2013 M/S AMRUTLAL PUNJABHAI PATEL (HUF) VS. ITO AY : 2003-04 6 HAVE FILLED THIS AFFIDAVIT TO SUBMIT IN MY APPEAL N O 3740/AHD /2008 BEFORE THE HONORABLE ITAT-AHMEDABAD. 7.1 THE CONTENTS OF THE DEPOSITION HAVE BEEN CATEGO RICALLY REBUTTED BY LD. CIT(A) BY HOLDING THAT THERE WAS NOTHING ON RECORD TO SUGGEST THAT THE ASSESSEE MADE ANY ARGUMENTS OR GAVE CITATIONS. THER E IS NO MENTION THAT ANY WRITTEN SUBMISSIONS WERE FILED ON THE GROUND OF CHALLENGING THE REOPENING; WHEREAS ON MERITS THE ASSESSEE HAS FILED DETAILED WRITTEN SUBMISSIONS. THUS, THE ASSESSEES AFFIDAVIT IS ONL Y A SELF SERVING DEVISE INASMUCH AS THE AFFIDAVIT ALSO DOES NOT MAKE ANY AV ERMENT THAT THE WRITTEN SUBMISSIONS QUA THE REOPENING OF THE ASSESSMENT WER E FILED. THE INFERENCE THAT THE ASSESSEE DID NOT CONTEST GROUND NO.2 IS FU RTHER SUPPORTED BY THE FACT THAT THE ASSESSEE DID NOT FILE ANY 154 APPLICA TION BEFORE THE LD. CIT(A) FOR NON-ADJUDICATION OF THE GROUND. THUS, THE GLAR ING FACTS AND INCONSISTENCIES IN ASSESSEES SUBMISSIONS ARE TO TH E EFFECT THAT THOUGH WRITTEN SUBMISSIONS WERE FILED, NO SUBMISSIONS WERE MADE ABOUT THE REOPENING AND AFTER RECEIPT OF THE ORDER, THE ASSES SEE DID NOT SEEK THE MOST EFFICIENT REMEDY OF FILING ANY 154 APPLICATION. ON AN APPLICATION U/S 154, THE APPELLATE AUTHORITY IS OBLIGED TO DECIDE THE GROUND TO CORRECT THE MISTAKE. THE LD. CIT(A) IS A RESPONSIBLE APPELLATE AUTHORITY AND THERE BEING A SPECIFIC FINDING ABOUT GROUND NO.2, IT CANNOT BE HELD THAT S UCH CATEGORICAL FINDING WAS GIVEN WITHOUT JUSTIFICATION. BESIDES, THE SUCC ESSOR CIT(A) ALSO FOUND THE ASSESSEES ASSERTION TO BE BASELESS. IN VIEW O F THESE FACTS AND CIRCUMSTANCES, I FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN THIS BEHALF WHICH IS UPHELD. THE ASSESSEES APPEAL IS ACCORDIN GLY DISMISSED. 8. APROPOS ITA NO.1711/AHD/2013, I.E. THE APPEAL AG AINST PENALTY IMPOSED U/S 271(1)(C) OF THE ACT, THE LD. COUNSEL F OR THE ASSESSEE CONTENDS THAT THERE IS NEITHER ANY CONCEALMENT OF INCOME NOR ANY FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE ASSESSEE FIL ED FOLLOWING DOCUMENTS:- SMC-ITA NOS. 1710 & 1711/AHD/2013 M/S AMRUTLAL PUNJABHAI PATEL (HUF) VS. ITO AY : 2003-04 7 (1) THE DONORS HAVE CONFIRMED THE GIFT. (2) THE 'A' HAD FILED THE GIFT DEED AS WELL AS AFFI DAVIT OF THE DONORS CONFIRMING THE GIFT. (3) THE DONORS ARE ASSESSED TO TAX. THE DONOR HAD REMAINED PRESENT BEFORE AO TO GIVE THE STATEMENT, BUT AO REFUSED TO RECORD THE STATEMENT OF THE DONORS ULTIMATELY THE DONORS FILED THE SUO MOTO STA TEMENT CONFIRMING THE GIFT. (4) THE DONORS HAVE FILED DETAILS OF ITRETURN, PAN CARD, CASH BOOK, BALANCE SHEET, PROOF OF HOLDING AGRICULTURE LAND, COPY OF I NVOICES AFFIDAVITS. (5) THERE IS NO MATERIAL TO SHOW THAT THE AMOUNT OF GIFT OF RS. 19,40,826/- GIFTED BY THE DONORS WERE THE MONEY GIVEN BY THE DO NEE IN ANY FORM AT ANY TIME. (6) THE DONORS ARE THE MEMBERS OF THE HINDU UNDI VIDED FAMILY AND NOT ANY OUTSIDER.' 8.1 THE LD. CIT(A) UPHELD THE PENALTY BY FOLLOWING OBSERVATIONS:- 6. I HAVE GONE THROUGH THE ORDER OF PENALTY U/S. 27 1(1)(C), SUBMISSION OF THE APPELLANT AND THE ASSESSMENT RECORD. FROM THE ASSES SMENT RECORD, IT IS SEEN THAT THE APPELLANT HAD NOT FILED THE BALANCE SHEET AND THE CAPITAL ACCOUNTS OF THE DONORS BEFORE THE AO. THE CIT(A) VIDE HIS ORDER DATED 25.07.2008 HAS ALSO HELD THAT THE RETURN FILED BY SMT. SANTOKBEN P . PATEL FOR AY 2006-07 WAS AN INVALID RETURN. THE INCOME SHOWN IN THE RETU RNS OF INCOME FILED BY SHRI AMRUTLAL P. PATEL AND SMT. SANTOKBEN P. PATEL SHOWED VERY MEAGER INCOME DURING THE YEAR UNDER CONSIDERATION. IN THE CAPITAL ACCOUNT OF THESE TWO INDIVIDUALS SUBSTANTIAL OPENING BALANCES HAD BE EN SHOWN AGAINST SAVINGS FROM AGRICULTURAL INCOME WHICH THE AO HAD P ROVED THAT IT WAS NOT GENUINE. FURTHERMORE, THE SOURCE OF THE GIFTS WERE CLAIMED TO BE OUT OF AGRICULTURAL INCOME WHICH HAD BEEN SOLD IN CASH TO A CO-OWNER, SHRI VINODBHAI PATEL WHO WAS THE BROTHER OF SHRI AMRUTLA L P. PATEL AND SON OF SMT. SANTOKBEN P. PATEL. FROM THE COPIES OF THE SA LE BILLS THE CIT(A) HAD OBSERVED THAT ALL THE SALE BILLS WERE IDENTICAL AND WRITTEN IN THE SAME HAND- WRITINGS. IN VIEW OF THESE FACTS, IT IS RIGHTLY HEL D BY THE AO THAT THE CREDITWORTHINESS OF THE DONORS COULD NOT BE ESTABLI SHED. AS THE APPELLANT FAILED TO DISCHARGE THE ONUS ON HIM TO PROVE THE GE NUINENESS OF THE GIFT TRANSACTION AND CREDITWORTHINESS OF THE DONORS, THE AOS ACTION IN IMPOSING PENALTY OF RS.6,09,972/- U/S 271(1)(C) OF THE IT AC T IS UPHELD. 8.2 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE ASSESSEE DISCHARGED A PROPER EXPLANATION WHICH IS NOT FOUND TO BE FALSE BY THE AUTHORITIES BELOW. SMC-ITA NOS. 1710 & 1711/AHD/2013 M/S AMRUTLAL PUNJABHAI PATEL (HUF) VS. ITO AY : 2003-04 8 THE LD. DR, ON THE OTHER HAND, CONTENDS THAT THE AS SESSEE HAD A VERY MEAGER INCOME AND SHOWED DISPROPORTIONATE AGRICULTURAL INC OME WHICH HAS BEEN ESTABLISHED BY THE ASSESSING OFFICER TO BE NOT GENU INE. SIMILARLY, THE GIFTS WERE FOUND TO BE OUT OF AGRICULTURAL INCOME SOLD IN CASH TO A CO-OWNER BROTHER. THE BILLS PRODUCED BY THE ASSESSEE WERE F OUND TO BE BOGUS. UNDER THESE CIRCUMSTANCES, THE PENALTY HAS BEEN RIGHTLY U PHELD. 9. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IN MY CONSIDERED VIEW, THE CASE OF THE ASSESSEE REPRESENT S A CLASSIC CASE OF CREATING THE DUBIOUS CAPITAL. THE ASSESSEE IS OWNED AGRICUL TURAL INCOME WHICH HAS BEEN FOUND TO BE NOT JUSTIFIED AND THE GIFTS FROM C O-OWNER BROTHER SHRI VINODBHAI PATEL HAS BEEN FOUND TO BE NOT CORRECT AS THE BILLS WERE FOUND TO BE BOGUS. IN VIEW OF THESE FACTS AND CIRCUMSTANCES , I FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHICH IS UPHELD. ACCORDINGL Y, THIS APPEAL OF THE ASSESSEE IS ALSO DISMISSED. 10. IN THE RESULT, BOTH APPEALS FILED BY THE ASSESS EE ARE DISMISSED. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 06/02/2017 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD