RAJENDRAKUMAR CHAMPALAL JAIN, MUMBAI V. ASST CIT CEN CIR 29, MUMBAI

ITA 241/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8621 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 15-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESH
• Assessee Lawyers: RAKES H SAKARIA
• Keywords: Corroborative evidences
• Section: 132

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.241/MUM/2016 ASSESSMENT YEAR: 2012-13 RAJENDRAKUMAR CHAMPALAL JAIN 1901/1902, DARSHAN HEIGHTS, ZAOBAWADI, THAKURDWAR, MUMBAI-400002 / VS. DCIT, CENTRAL CIRCLE-4(2), ROOM NO.411, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO. AAAPJ8332J $% & # ' / DATE OF HEARING : 02/11/2017 & # ' / DATE OF ORDER: 02/11/2017 !' # ! / ASSESSEE BY SHRI RAKESH SAKARIA $ ! / REVENUE BY SHRI SAURABH DESHPANDE-DR ITA NO. 241/MUM/2016 RAJENDRAKAMAL CHAMPALAL JAIN 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS IN APPEAL, CHALLENGING THE IMPUGNED ORDER DATED 28/10/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI, UPHOLDING THE LEVY OF PENALTY OF RS.1,08,088/- U/S 271AAA OF THE INCOME TAX ACT, 196 1 (HEREINAFTER THE ACT) ON THE INCOME DISCLOSED DURIN G SEARCH ACTION U/S 132 OF THE ACT. 2. DURING HEARING, SHRI RAKESH SAKARIA, LD. COUNSEL FOR THE ASSESSEE, STATED AT BAR THAT THE AD DITION ON THE BASIS WHICH PENALTY WAS IMPOSED HAS BEEN DEL ETED AND THE APPEAL HAS BEEN DECIDED IN FAVOUR OF THE AS SESSEE, THEREFORE, THE PENALTY WILL NOT SURVIVE. THIS CONTE NTION OF THE ASSESSEE WAS NOT CONTROVERTED BY SHRI SAURABH DESHPANDE, LD. DR. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE, AN INDIVIDUAL, AT THE RELEVA NT TIME WAS PARTNER IN VARIOUS PARTNERSHIP FIRM, ENGAGED IN THE BUSINESS OF CONSTRUCTION AND REDEVELOPMENT OF PROPE RTIES. ITA NO. 241/MUM/2016 RAJENDRAKAMAL CHAMPALAL JAIN 3 THE ASSESSEE DECLARED INCOME OF RS.97,20,610/- IN H IS RETURN FILED ON 20/02/2013. THERE WAS SEARCH ACTIO N U/S 132 OF THE ACT UPON THE ASSESSEE AT HIS RESIDENTIAL PREMISES, WHEREIN, CERTAIN ORNAMENTS, JEWELLERY AND SILVER UTENSILS WERE FOUND. AS PER THE ASSESSEE, THESE ITE MS WERE DULY EXPLAINED WITH SUPPORTING EVIDENCE. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE, FILED PAPER BOOK BY INVIT ING OUR ATTENTION TO PAGE-5 OF THE SAME, WHEREIN, THROUGH Q UESTION NO.1 OF THE STATEMENT OF SHRI RAJENDRA C. JAIN, THE INVENTORY OF JEWELLERY FOUND INCLUDING SILVER ITEMS VALUED AT RS.10,80,040/-. IN REPLY, THE OLD SILVER ITEMS WERE CLAIMED TO BE INHERITED FROM THE PARENTS AND NO DOCUMENTARY EVIDENCE WAS PRODUCED TO SUBSTANTIATE THE SOURCE, THEREFORE, THE ASSESSEE OFFERED RS.15 LAKH AS INCOM E TO COVER UP THE DISCREPANCY IN THE INVESTMENT IN THE S ILVER ITEMS AND ANY OTHER DISCREPANCIES, SUBJECT TO THE C ONDITION NO PENALTY/PROSECUTION PROCEEDING WILL BE INITIATED , MEANING THEREBY, THE INTEREST OF THE REVENUE HAS AL READY BEEN SAFEGUARDED. THE CONTENTS OF THE STATEMENT ARE REPRODUCED HEREUNDER:- ITA NO. 241/MUM/2016 RAJENDRAKAMAL CHAMPALAL JAIN 4 Q.3. THE INVENTORY OF JEWELLERY FOUND INCLUDE SILVE R ITEMS (20.770 KGS.) VALUED AT RS.10,80,040/- YOU AR E THEREFORE REQUESTED TO FURNISH THE SOURCE OF ACQUIS ITION OF SUCH ASSETS ALONG WITH DOCUMENTARY EVIDENCE THER EOF. ANS. THE SILVER ITEMS/UTENSILS ARE VERY OLD ITEMS INHERITED BY ME FROM MY PARENTS AND SAME WERE BELONGING TO THEM. HOWEVER, I DO NOT HAVE ANY DOCUMENTARY EVIDENCES AS ON DATE OF SUBSTANTIATE TH E SAME. I AM TENDERING A PAY ORDER OF RS.10,80,000/- DATED 12.11.2011 WITH A REQUEST NOT TO SEIZE THE SI LVER ITEMS. Q.4. DOU YOU WANT TO SAY ANYTHING ELSE? ANS. SIR, I AM OFFERING RS.15,00,000/- AS MY CURRENT YEARS INCOME BEING BROKERAGE EARNED FROM R EAL- ESTATE TRANSACTIONS DONE FOR OTHERS TO COVER UP THE DISCREPANCIES IN THE INVESTMENT IN SILVER ITEMS AND ANY OTHER DISCREPANCIES. I REQUEST YOUR HONOUR SINCE TH E ABOVE ADMISSION OF INCOME HAS BEEN MADE VOLUNTARILY EXPLAINING THE SOURCE, NO PENALTY AND PROSECUTION PROCEEDINGS MAY BE INITIATED AGAINST ME OR ANY OF M Y FAMILY MEMBERS. THE CONTENTS OF THE STATEMENT WERE NOT CONTROVERTED BY THE REVENUE. IT WAS ALSO EXPLAINED THAT THE AFORESAID AMOUNT WAS SURRENDERED WHICH WAS EARNED FROM BROKERAGE AND DUE TAXES THEREUPON WERE PAID. THIS CLAIM OF THE ASSES SEE WAS NOT CONTROVERTED BY THE REVENUE. THUS, WE ARE OF TH E VIEW, IT MAY BE A GOOD CASE FOR QUANTUM ADDITION BUT NOT FOR PENALTY. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED AND THE LD. ASSESSING OFFICER IS DIRECTED TO DELETE THE PENALTY . ITA NO. 241/MUM/2016 RAJENDRAKAMAL CHAMPALAL JAIN 5 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 02/11/2017. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ) DATED : 02/11/2017 F{X~{T? P.S / /. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. /0-. / THE ASSESSEE. 3. 1 1 2# ( +, ) / THE CIT, MUMBAI. 4. 1 1 2# / CIT(A)- , MUMBAI, 5. 4$5 /# , 1 +,' + 6 , % / DR, ITAT, MUMBAI 6. ! 7% / GUARD FILE. ! / BY ORDER, 04,# /# //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI