The ITO, Ward-2(6), Baroda V. Smt. Seema Anil Modani, Baroda

ITA 1986/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5842 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-05-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 03-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1986/AHD/2014 (ASSESSMENT YEAR: 2004-05) THE INCOME-TAX OFFICER, WARD 2(6), BARODA V/S SMT. SEEMA ANIL MODANI C/O. SHRI G.L. MAHESHWARI, C-2, VARDHMAN PARK, GOTRI ROAD, BARODA-390021 (APPELLANT) (RESPONDENT) PAN: ACIPM0760H APPELLANT BY : SHRI JAMES KURIAN, SR. D. R RESPONDENT BY : SHRI MUKUND BAKSHI, A.R. ( )/ ORDER DATE OF HEARING : 12 -05-201 7 DATE OF PRONOUNCEMENT : 16 -05-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-II, BARODA DATED 05.03.2014 PERTAINING TO A.Y. 2004-05. ITA NO.1986/ AHD/2014 . A.Y. 2004-0 5 2 2. THE ONLY GRIEVANCE OF THE REVENUE IS THAT THE LD. C IT(A) ERRED IN DELETING THE PENALTY OF RS. 16,78,208/-. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 30.12.2009 MADE U/S. 143(3) R.W.S. 254 OF THE ACT. THE ASSESSMENT WAS COMPLETED BY MAKING ADDITION U/S.68 OF THE ACT ON T HE AMOUNT RECEIVED AS GIFTS WHICH WERE TREATED AS UNEXPLAINED AMOUNTING T O RS. 25.05 LACS. THE ASSESSEE WAS UNSUCCESSFUL IN SUCCESSIVE APPEALS AGA INST THE IMPUGNED ADDITION. 4. PENAL PROCEEDINGS WERE SEPARATELY INITIATED FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. THE A.O. CONCLUDED THE PENAL PROCEEDINGS BY LEVYING PENALTY OF RS. 16,78,208/-. 5. ASSESSEE STRONGLY AGITATED THE MATTER BEFORE THE FI RST APPELLATE AUTHORITY. 6. BEFORE THE FAA, LD. COUNSEL STRONGLY CONTENDED THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS ITSELF THE ASSESSEE HAD FILED THE CONFIRMATIONS FROM THE DONORS, ALONG WITH THEIR COPY OF THE BANK STATEMENTS. IT WAS STRONGLY PLEADED THAT MERELY BECAUSE THE ADDITIONS WERE CONFIRMED U/S. 68 WOULD NOT IPSO FACTO LEAD TO THE LEVY OF PENALTY U/ S. 271(1)(C) OF THE ACT. 7. AFTER CONSIDERING THE FACTS AND SUBMISSIONS, THE LD . CIT(A) WAS OF THE OPINION THAT THE IMPUGNED ADDITION CANNOT STRAIGHTW AY LEAD TO PENALTY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE LD . CIT(A) FURTHER OBSERVED ITA NO.1986/ AHD/2014 . A.Y. 2004-0 5 3 THAT THE EXPLANATION OF THE ASSESSEE, AT BEST, CAN BE CONSIDERED AS UNPROVED BUT NOT DISPROVED I.E. IT IS NOT ACCEPTED BUT CIRCUMSTANCES DO NOT LEAD TO THE REASONABLE AND POSITIVE INFERENCE THAT THE ASSESSEES CASE IS FALSE. THE LD. CIT(A) DIRECTED THE A.O. TO DELETE T HE PENALTY OF RS. 16,78,208/-. 8. BEFORE US, THE LD. D.R. STRONGLY SUPPORTED THE FIND INGS OF THE A.O. LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN S TATED BEFORE THE LOWER AUTHORITIES. 9. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ERS OF THE AUTHORITIES BELOW. IT IS TRUE THAT WHILE COMPLETING THE ASSESSM ENT, ADDITION OF RS. 25.05 LACS WAS MADE BY THE A.O. U/S. 68 OF THE ACT. IT IS ALSO TRUE THAT THE ASSESSEE HAD FILED COMPLETE DETAILS OF THE DONORS ALONG WITH THEIR CONFIRMATIONS AND COPY OF BANK STATEMENTS. THIS MEANS THAT THE ASSESS EE DID FILE AN EXPLANATION SUPPORTED WITH NECESSARY DOCUMENTARY EV IDENCES. THEREFORE, IT CANNOT BE SAID THAT THE EXPLANATION OF THE ASSES SEE WAS FALSE. MERELY BECAUSE ADDITION OF RS. 25.05 LACS WAS MADE UNDER T HE DEEMING PROVISIONS OF SECTION 68 OF THE ACT THAT WOULD NOT CONCLUSIVEL Y PROVE THAT THE AMOUNT IN QUESTION WAS THE UNDISCLOSED INCOME OF THE ASSES SEE, NOR IT IS THE CASE OF THE A.O. THAT ASSESSEE HAS ADMITTED THE IMPUGNED CR EDIT AS HER CONCEALED INCOME. CONSIDERING THE FACTS IN TOTALITY, WE DO NO T FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). ITA NO.1986/ AHD/2014 . A.Y. 2004-0 5 4 10. APPEAL FILED BY THE REVENUE IS ACCORDINGLY DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON 16 - 05- 201 7 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 16/05/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD