ATUL ASHAR (HUF), MUMBAI V. ITO 16(1)(4), MUMBAI

ITA 2553/MUM/2009

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2570 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-04-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 21-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S R SINGHSR
• Keywords: Gift; Income from undisclosed sources; Revised return
• Section: 143(3); 139(5); 147; 68; 148

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.2553 /MUM/2009 ( / ASSESSMENT YEAR : 2002-03) MR. ATUL ASHAR (HUF), 4B, 4 TH FLOOR, TARDEO A.C. MARKET, TARDEO ROAD, MUMBAI 400 034. / V. ITO 16(1)(4), 2 ND FLOOR, MATRU MANDIR, J.D. ROAD, MUMBAI- 400007. ./ PAN : AAFHA3328E ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI NISHIT GANDHI REVENUE BY : SHRI S.R. SINGH,SR. AR / DATE OF HEARING : 28-04-2016 / DATE OF PRONOUNCEMENT : 13-07-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE , BEING ITA NO. 2553/MUM/2009, IS DIRECTED AGAINST THE ORDER DATED 08-01-2009 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- XVI, MUMBAI (HEREINAFTER C ALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2002-03, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE PENALTY ORDER DATED 26-02-2007 PAS SED BY THE LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 271(1)(C) OF THE INCOME TAX ACT,1961 (HEREINAFTER CALLED THE ACT). ITA 2553/MUM/2009 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN MEMO OF APPEAL FILED BEFORE THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI (H EREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. THE LD CIT(A) ERRED IN DISREGARDING THE FACTS OF THE CASE & CONFIRMED THE ORDER LEVYING PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. 3. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CAS E DGIT (INV.), MUMBAI HAD RECEIVED THE INFORMATION FROM PUNE DIRECTORATE REGA RDING BOGUS GIFTS TAKEN BY THE SHAH GROUP DURING THE COURSE OF SEARCH IN THE M ONTH OF OCTOBER, 2002. THERE WERE MANY BENEFICIARIES OF THE SAID BOGUS GIF TS. THE PUNE DIRECTORATE HAD IDENTIFIED THE BENEFICIARIES OF THESE BOGUS GIF TS OF MUMBAI REGION AND THE ASSESSEE IS ONE OF THE BENEFICIARIES WHO HAD RECEIV ED RS. 5 LACS. ON THE BASIS OF THE INFORMATION RECEIVED, THE ASSES SEES CASE WAS REOPENED U/S 147 OF THE ACT BY RECORDING OF REASONS FOR RE-O PENING THE ASSESSMENT U/S. 147 OF THE ACT , AND NOTICE U/S. 148 OF THE ACT DAT ED 14.07.2005 WAS ISSUED TO THE ASSESSEE. THE ASSESSMENT WAS COMPLETED BY TH E AO U/S 143(3) R.W.S. 147 OF THE ACT VIDE ASSESSMENT ORDERS DATED 28 TH AUGUST, 2006 WHEREBY THE SAID AMOUNT OF RS.5,00,000/- OF GIFT RECEIVED BY TH E ASSESSEE AND RS.33/- BEING INTEREST ON SAVING BANK ACCOUNT WAS BROUGHT T O TAX BY THE REVENUE , ALBEIT THE ASSESSEE HAD ALREADY FILED REVISED RETUR N OF INCOME WITH THE REVENUE ON 21-10-2004 I.E. PRIOR TO ISSUE OF NOTICE U/S 148 OF THE ACT ON 14- 07-2005 WHEREBY THE SAID AMOUNT OF RS.5,00,000/- WA S DISCLOSED AS MISCELLANEOUS INCOME UNDER THE HEAD INCOME FROM OT HER SOURCES AND DUE TAXES PAID TO THE REVENUE , AS IT WAS HELD BY THE A O IN THE ASSESSMENT ORDERS DATED 28-08-2006 U/S 147 R.W.S. 143(3) OF THE ACT T HAT THE AFORESAID ADDITIONAL INCOME HAS NOT BEEN OFFERED VOLUNTARILY BY THE ASSESSEE AND THE REVISED RETURN WAS FILED ONLY AFTER THE ASSESSEE WA S CORNERED AS THE SAME WAS DETECTED BY THE REVENUE DURING SEARCHES ON SHAH GRO UP IN OCTOBER 2002 , THAT THE ASSESSEE WAS ONE OF THE RECIPIENT BENEFICI ARY OF BOGUS GIFT OF ITA 2553/MUM/2009 3 RS.5,00,000/-. CONSEQUENTLY, THE AO INITIATED PENA LTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AGAINST THE ASSESSEE. THE ASSESSEE SUBMITTED IN PENALTY PROCEEDINGS THAT HE HAS FILED REVISED RETURN OF INCOME ON 21 ST OCTOBER, 2004 WHEREIN THE AMOUNT OF RS.5,00,000/- WAS DECLARED AS MISCELLANEOUS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES AND THE DUE TAXES HAS BEEN DULY PAID TO TH E REVENUE AND THUS THERE WAS NO CONCEALMENT OF INCOME , AND HENCE PENALTY U/ S 271(1)(C) OF THE ACT CANNOT BE IMPOSED. THE AO REJECTED THE CONTENTIONS OF THE ASSESSEE AND OBSERVED THAT THERE WAS A SEARCH ON SHAH GROUP BY PUNE DIRECTORATE IN THE M ONTH OF OCTOBER, 2002 WHEREIN IT WAS FOUND THAT SOME OF THE BENEFICIARIES HAVE RECEIVED BOGUS GIFTS. THE NAME OF THE ASSESSEE AS BENEFICIARY OF BOGUS G IFT OF RS. 5,00,000/- WAS THERE IN THE LIST PREPARED BY PUNE DIRECTORATE FOR MUMBAI REGION . THE ASSESSEE HAD FILED REVISED RETURN ON 1ST AUGUST, 20 04 ( CORRECT DATE AS PER CLAIM OF THE ASSESSEE IS 21-10-2004) WHEREIN HE HAD OFFERED THE SAID SUM OF RS. 5 LACS AS MISCELLANEOUS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES AND PAID DUE TAXES TO THE REVENUE. DURING THE ASSESSMENT PROCEEDINGS U/S 147 READ WITH SECTION 143(3) OF THE ACT, IT WAS HELD BY THE AO THAT THE ASSESSEE FAILED TO PRODUCE ANY EXPLANAT ION OR DETAILS OR ANY DOCUMENTARY EVIDENCE TO PROVE THE GENUINENESS OF TH E MISCELLANEOUS RECEIPT AMOUNT OF RS. 5 LACS BY THE ASSESSEE AND HENCE THE A.O. TREATED THE SAME AS THE ASSESSEES INCOME FROM UNDISCLOSED SOURCES U/S 68 OF THE ACT. THE AO OBSERVED THAT THE ASSESSEE FILED HIS REVISED RETURN OF INCOME ONLY AFTER THE SAME WAS DETECTED BY THE REVENUE AND IT WAS NOT A V OLUNTARY DECLARATION BY THE ASSESSEE. THE ASSESSEE HAS ALSO NOT FILED APPE AL AGAINST THE QUANTUM ASSESSMENT ORDER U/S 143(3) READ WITH SECTION 147 O F THE ACT OF THE ACT, ALTHOUGH NO SEPARATE ADDITION WAS MADE TO THE INCOM E DECLARED IN THE REVISED RETURN OF INCOME FILED WITH THE REVENUE. THE A.O., HOWEVER, TREATED THE ITA 2553/MUM/2009 4 ADDITIONAL INCOME AS CONCEALED INCOME AND THUS PENA LTY OF RS. 1,45,089/- U/S 271(1)(C) OF THE ACT WAS LEVIED BY THE A.O. VID E PENALTY ORDERS DATED 26- 02-2007 PASSED U/S 271(1)(C ) OF THE ACT. 4. AGGRIEVED BY THE PENALTY ORDER OF THE A.O. DATED 26-02-2007 PASSED U/S 271(1)(C) OF THE ACT, THE ASSESSEE FILED HIS FIRST APPEAL BEFORE THE LEARNED CIT(A). 5. BEFORE THE LEARNED CIT(A), THE ASSESSEE REITERAT ED THE SAME SUBMISSIONS WHAT WERE MADE BEFORE THE A.O. AND SUBMITTED THAT T HE ASSESSEE HAS FILED HIS ORIGINAL RETURN ON 23 RD JULY, 2002 AND THE REVISED RETURN ON 21 ST OCTOBER, 2004. THE ADDITIONAL INCOME OF RS.5,00,000/- WAS D ULY OFFERED BY THE ASSESSEE IN THE REVISED RETURN OF INCOME FILED ON 21 ST OCTOBER, 2004 AS MISCELLANEOUS INCOME UNDER THE HEAD INCOME FROM OT HER SOURCES AND DUE TAXES WERE ALSO PAID TO THE REVENUE. THE NOTICE U/S 148 OF THE ACT WAS ISSUED ON 14-07-2005 WHICH IS SUBSEQUENT TO THE FILING OF REVISED RETURN BY THE ASSESSEE ON 21-10-2004. THE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTABLE TO THE LEARNED CIT(A). THE LEARNED CIT(A) HELD THAT THE REASON BEHIND THE FILI NG OF REVISED RETURN OF INCOME ON 21-10-2004 WAS THE SEARCH CONDUCTED BY TH E DIRECTORATE OF INVESTIGATION IN SHAH GROUP OF CASES IN OCTOBER 200 2, WHEREBY IT WAS DETECTED THAT THE SHAH GROUP HAS RECEIVED BOGUS GIF TS. THE ASSESSEE IS ALSO BENEFICIARY OF BOGUS GIFT OF RS.5,00,000/- AS PER T HE LIST PREPARED BY PUNE DIRECTORATE FOR MUMBAI REGION. THE ASSESSEE HAS NOT DECLARED THE SAID INCOME BY WAY OF BOGUS GIFT OF RS.5,00,000/- IN HIS ORIGINAL RETURN OF INCOME FILED ON 23-07-2002 U/S 139(1) OF THE ACT, WHEREBY RETURNED INCOME WAS RS.1,00,820/-. THEREFORE, THE SUBMISSION OF THE AS SESSEE THAT HE FILED REVISED RETURN OF INCOME SUO MOTU DOES NOT APPEAR TO BE COR RECT AND THE ASSESSEE FILED REVISED RETURN OF INCOME AFTER DETECTION BY T HE REVENUE DURING COURSE OF ITA 2553/MUM/2009 5 SEARCH ON SHAH GROUP IN OCTOBER 2002. ACCORDINGLY T HE LEARNED CIT(A) CONFIRMED THE PENALTY LEVIED BY THE A.O. U/S 271(1) (C) OF THE ACT, VIDE APPELLATE ORDERS DATED 08-01-2009. 6. AGGRIEVED BY THE APPELLATE ORDERS DATED 08-01-20 09 PASSED BY THE LEARNED CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. 7. THE LD. COUNSEL FOR THE ASSESSE SUBMITTED THAT T HE ASSESSEE HAS FILED REVISED RETURN ON 21 ST OCTOBER, 2004 WHEREBY INCOME OF RS 5,00,000/- BEIN G GIFT RECEIVED WAS DECLARED IN THE REVISED RETURN O F INCOME AS MISCELLANEOUS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES A ND DUE TAXES PAID TO REVENUE, WHICH IS PRIOR TO THE ISSUE OF NOTICE U/S 148 OF THE ACT I.E. ON 14 TH JULY, 2005. THE REVISED RETURN OF INCOME FILED BY THE ASSESSE WAS ACCEPTED BY THE REVENUE. THE SEARCH WAS CONDUCTED BY THE DIREC TORATE OF INVESTIGATION IN PUNE IN THE CASE OF SHAH GROUP IN THE MONTH OF OCTO BER, 2002 AND LATER ON REVISED RETURN WAS FILED ON 21 ST OCTOBER, 2004 WHEREBY THE ASSESSEE DECLARED THE GIFT OF RS. 5 LACS AS MISCELLANEOUS INCOME UNDE R THE HEAD INCOME FROM OTHER SOURCES. TAXES WERE DULY PAID TO THE REVENU E BY THE ASSESSEE BEFORE FILING OF REVISED RETURN OF INCOME ON THIS INCOME O F RS.5,00,000/- DECLARED AS MISCELLANEOUS INCOME UNDER THE HEAD INCOME FROM OT HER SOURCES. IT IS SUBMITTED THAT THE REVISED RETURN OF INCOME FILED B Y THE ASSESSEE ON 21-10- 2004 WAS ALSO SUBMITTED AS RETURN OF INCOME IN PURS UANCE TO NOTICE U/S 148 OF THE ACT. THE SAID RETURN OF INCOME IS ACCEPTED B Y THE REVENUE WHILE FRAMING ASSESSMENT ORDERS DATED 28-08-2006 PASSED U /S 147 READ WITH SECTION 143(3) OF THE ACT. HENCE, THE LD. COUNSEL P RAYED THAT NO TAX HAS BEEN EVADED BY THE ASSESSEE AS THERE IS NO CONCEALMENT O F INCOME U/S 271(1)(C) OF THE ACT AND NO PENALTY CAN BE LEVIED. 8. THE LD. D.R., ON THE OTHER HAND, RELIED UPON THE ORDERS OF THE LEARNED CIT(A). ITA 2553/MUM/2009 6 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING CASE LAWS RELIED UPON . WE HAVE OBSERVED THAT THE ASSESSEE HAS FILED HIS ORIGINAL RETURN OF INCOM E WITH THE REVENUE FOR THE IMPUGNED ASSESSMENT YEAR ON 23 RD JULY, 2002 U/S 139(1) OF THE ACT WHEREBY THE INCOME DECLARED WAS RS. 1,00,820/-. THERE WAS A SEARCH OPERATION U/S 132(1) OF THE ACT CONDUCTED BY PUNE DIRECTORATE IN THE CASE OF SHAH GROUP IN THE MONTH OF OCTOBER, 2002. IT WAS FOUND BY THE REV ENUE DURING THE SEARCHES THAT THE SAID SHAH GROUP HAS RECEIVED BOGUS GIFTS , AND IT WAS REVEALED THAT THE ASSESSEE IS ALSO ONE OF THE BENEFICIARY OF BOGU S GIFTS OF RS.5,00,000/- . THE LIST WAS PREPARED BY PUNE DIRECTORATE FOR MUMBA I REGION CONSEQUENT TO THE SEARCH ON SHAH GROUP IN OCTOBER 2002 AND THE AS SESSEES NAME ALSO FIGURED IN THE SAID LIST BEING BENEFICIARY OF BOGUS GIFT RECEIVED OF RS.5,00,000/- . THUS, AS PER LIST PREPARED BY PUNE DIRECTORATE, THE ASSESSEE WAS BENEFICIARY OF GIFT OF RS. 5,00,000/- AS DETECT ED BY REVENUE. POST SEARCH OPERATIONS IN OCTOBER 2002 ON SHAH GROUP, THE ASSES SEE FILED HIS REVISED RETURN ON 21-10-2004 (COPY OF THE ACKNOWLEDGEMENT O F REVISED RETURN IS PLACED IN THE FILE) WHEREBY THE SO CALLED BOGUS GIF T OF RS.5,00,000/- RECEIVED BY THE ASSESSEE WAS SURRENDERED BY THE ASSESSEE AND DECLARED IN THE REVISED RETURN OF INCOME FILED WITH REVENUE ON 21-10-2004 A S MISCELLANEOUS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. WE HAVE OBSERVED THAT THE ASSESSEE HAS FILED HIS REVISED RETURN OF INCOME ON 21-10-2004 WHICH IS BEYOND THE PRESCRIBED TIME LIMIT AS STIPULATED U/S 139(5) OF THE ACT AND THE SAID REVISED RETURN OF INCOME SHALL BE DEEMED TO BE A NON-EST RETURN OF INCOME BEING NON-EXISTENT IN THE EYES OF LAW. THE R EVENUE RECORDED REASONS FOR RE-OPENING BEING RECEIPT OF BOGUS GIFTS OF RS.5 ,00,000/- BY THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR AND NOTICE DATED 14-07-2005 U/S 148 OF THE ACT WAS ISSUED TO THE ASSESSEE ASKING THE ASSESSEE TO FILE RETURN OF INCOME IN PURSUANCE TO NOTICE U/S 148 OF THE ACT. THE SAID R EVISED RETURN WHICH WAS FILED BY THE ASSESSEE ON 21-10-2004 WAS ALSO SUBMI TTED BY THE ASSESSEE ITA 2553/MUM/2009 7 BEFORE THE REVENUE TO BE TREATED AS THE RETURN OF I NCOME IN PURSUANCE OF NOTICE DATED 14-07-2005 U/S 148 OF THE ACT. SINCE T HE REVISED RETURN OF INCOME FILED ON 21-10-2004 WAS FILED BEYOND THE PER IOD PRESCRIBED U/S 139(5) OF THE ACT, THE SAID REVISED RETURN OF INCOME SHALL BE DEEMED TO BE NON-EST AND ANY DISCLOSURE MADE THEREIN SHALL HAVE NO EVIDE NTIARY VALUE. THE DISCLOSURE OF THE SAID BOGUS GIFT OF RS.5,00,000/- WHICH WAS MADE BY THE ASSESSEE IN THE RETURN OF INCOME FILED IN PURSUANCE OF NOTICE DATED 14-07- 2005 ISSUED U/S 148 OF THE ACT IS POST RECODING OF REASONS BY THE REVENUE ABOUT ESCAPEMENT OF INCOME TO THE TUNE OF RS.5,00,0 00/- BEING BY VIRTUE OF BOGUS GIFTS RECEIVED BY THE ASSESSEE DETECTED PURSU ANT TO THE SEARCHES CONDUCTED ON SHAH GROUP ON OCTOBER 2002. THE REVENU E THEN PROCESSED THE SAID RETURN OF INCOME U/S 147/148 OF THE ACT AND PA SSED ASSESSMENT ORDERS DATED 28-08-2006 U/S 147 READ WITH SECTION 143(3) O F THE ACT WHEREBY RETURNED INCOME WHICH , INTER-ALIA, ALSO CONSISTED OF SURRENDERED INCOME OF RS.5,00,000/- BEING RECEIPT OF BOGUS GIFT , WAS AC CEPTED BY THE AO. THE ASSESSEE DID NOT CONTEST DURING THE ASSESSMENT PROC EEDINGS ABOUT SURRENDER OF BOGUS GIFT OF RS.5,00,000/- AS MISCELLANEOUS INC OME UNDER THE HEAD INCOME FROM OTHER SOURCES AS NO EXPLANATION WHATS OEVER WAS SUBMITTED BY THE ASSESSEE ABOUT THESE ALLEGED BOGUS GIFTS OF RS. 5,00,000/- NOR THE ASSESSEE FILED ANY APPEAL AGAINST THE QUANTUM ASSES SMENT ORDERS DATED 28- 08-2006 U/S 147 READ WITH SECTION 143(3) OF THE ACT DECLARING THE SAID INCOME BY THE REVENUE AS NOT VOLUNTARY AND UNACCOUN TED INCOME OF THE ASSESSEE AND THE SAID QUANTUM ASSESSMENT ORDER REA CHED ITS FINALITY. THUS KEEPING IN VIEW THE FACTUAL MATRIX OF THE CASE, THE REVISED RETURN OF INCOME FILED BY THE ASSESSEE ON 21-10-2004 WAS NOT A VOLUN TARY ACT OF THE ASSESSEE RATHER WHEN THE ASSESSEE WAS CORNERED AFTER DETECTI ON BY THE REVENUE DURING THE COURSE OF SEARCHES ON SHAH GROUP IN OCTOBER 200 2, THE SAID REVISED RETURN PROBABLY WAS FILED BY THE ASSESSEE ON 21-10- 2004 , ALBEIT NOTICE U/S 148 OF THE ACT WAS ISSUED BY REVENUE LATER ON 14-07 -2005 AS PER THE FACTS AS EMERGING FROM THE RECORDS BEFORE US. THE ASSESSEE D ID NOT OFFER ANY ITA 2553/MUM/2009 8 EXPLANATION WHATSOVER ABOUT THE SURRENDER OF THE BO GUS GIFT OF RS.5,00,000/- DURING THE ASSESSMENT PROCEEDINGS U/S 143(3) READ W ITH SECTION 147 OF THE ACT NOR ANY EXPLANATIONS WITH RESPECT TO THESE GI FT OF RS.5,00,000/- RECEIVED BY THE ASSESSEE DURING RELEVANT PREVIOUS YEAR WERE SUBMITTED DURING THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT . EVEN DURING THE APPELLATE PROCEEDINGS WITH RESPECT TO LEVY OF PENALTY U/S 271 (1)(C) OF THE ACT WITH THE LEARNED CIT(A) AND EVEN BEFORE US , NO EXPLANATION WITH RESPECT TO THE RECEIPT OF THESE GIFTS OF RS.5,00,000/- WERE FURNISHED BY T HE ASSESSEE. THUS KEEPING IN VIEW THE EXPLANATION 1 TO SECTION 271(1)(C) OF T HE ACT , THE PRIMARY ONUS WAS ON THE ASSESSEE TO OFFER EXPLANATION WITH RESP ECT TO THE RECEIPT OF GIFT OF RS.5,00,000/- WHILE THE ASSESSEE DID NOT OFFER ANY EXPLANATIONS WHATSOVER WITH RESPECT TO THE RECEIPT OF THESE GIFTS OF RS.5, 00,000/- DURING THE RELEVANT PREVIOUS YEAR AND HENCE THE ASSESSEE HAS RENDERED H IMSELF LIABLE FOR PENALTY U/S 271(1)(C) OF THE ACT. THE ASSESSEE HAS RELIED U PON THE DECISIONS OF THE MUMBAI TRIBUNAL IN THE CASE OF PARINEE DEVELOPERS P RIVATE LIMITED V. ACIT IN ITA NO. 6772/MUM/2013 VIDE ORDERS DATED 11.09.2015 AND ALSO DECISION IN THE CASE OF PREMA GOPAL RAO V. DCIT IN ITA NO 8653/ MUM/2911 VIDE ORDERS DATED 07.01.2015 , WITH DUE RESPECT, WE WOULD LIKE TO SUBMIT THAT THE FACTS ARE COMPLETELY DISTINGUISHABLE IN THESE CASE VIS-A- VIS FACTS IN THE CASE OF THE ASSESSEE AND THESE DECISIONS ARE NOT RELEVANT FOR D ECIDING THE LEVYING OF PENALTY AGAINST THE ASSESSEE KEEPING IN VIEW FACTS AND CIRCUMSTANCES OF THE ASSESSEES CASE . THE ABOVE CASES DEALS WITH ESTIM ATION OF INCOME OR POSTPONEMENT OF SALE , CHANGE OF METHOD OF ACCOUNTI NG , CHANGE OF HEAD OF INCOME ETC. BUT THEY DID NOT DEAL WITH THE CASE OF BOGUS GIFTS WHICH WAS ADMITTEDLY DECLARED AS INCOME BY THE ASSESSEE IN R EVISED RETURN FILED BEYOND THE PERIOD STIPULATED U/S 139(5) OF THE ACT , WHILE THE SAID BOGUS GIFTS WERE NOT DECLARED AS INCOME IN THE ORIGINAL RETURN OF IN COME FILED U/S 139(1) OF THE ACT. IN THE CASE OF PREMA GOPAL RAO(SUPRA) , THE TA X-PAYER FILED REVISED RETURN OF INCOME DECLARING LONG TERM CAPITAL GAINS AFTER I SSUANCE OF NOTICE U/S 143(2) OF THE ACT , THE PENALTY WAS DELETED BECAUSE THE AO IN THE NOTICE DID NOT ITA 2553/MUM/2009 9 SPECIFICALLY ASKED QUESTION ABOUT DISCREPANCY IN LO NG TERM CAPITAL GAINS AND HENCE IT WAS HELD THAT THE SAID DISCREPANCY WAS NOT DETECTED BY THE REVENUE PRIOR TO FILING OF REVISED RETURN OF INCOME WHICH R ETURN WAS HELD TO BE VOLUNTARY BUT IN THE INSTANT CASE UNDER APPEAL THER E IS DETECTION BY REVENUE AUTHORITIES OF THE ASSESSEE BEING BENEFICIARY OF BO GUS GIFT OF RS.5,00,000/- CONSEQUENT TO SEARCHES ON SHAH GROUP IN OCTOBER 200 2 AND LISTS WERE PREPARED BY PUNE DIRECTORATE FOR MUMBAI REGION WHER EBY THE ASSESSEE WAS LISTED AS ONE OF THE BENEFICIARY OF BOGUS GIFT OF R S.5,00,000/- AND THE ASSESSEE FILED REVISED RETURN OF INCOME ON 21-10-2004 DECLAR ING AND SURRENDERING RS.5,00,000/- AS MISCELLANEOUS INCOME UNDER THE HEA D INCOME FROM OTHER SOURCES IN THE SAID REVISED RETURN OF INCOME WHICH WAS FILED BEYOND THE PRESCRIBED TIME LIMIT U/S 139(5) OF THE ACT FOR FIL ING REVISED RETURN AND WAS AN INVALID RETURN BEING NON-EXISTENT IN THE EYES OF LA W. THE ASSESSEE FILING RETURN IN RESPONSE TO NOTICE DATED 14-07-2005 U/S 148 OF T HE ACT WHEREBY THE SAID GIFT OF RS.5,00,000/- WAS SURRENDERED AND OFFERED A S MISCELLANEOUS INCOME WAS POST RECORDING OF THE REASONS FOR RE-OPENING AN D CANNOT BE SAID TO BE VOLUNTARY ACT ON THE PART OF THE ASSESSEE. IN OUR C ONSIDERED VIEW, THE ACTION OF THE A.O. IN LEVYING THE PENALTY U/S 271(1)(C) OF TH E ACT OF RS. 1,45,089/- FOR CONCEALMENT OF INCOME , WHICH WAS LATER CONFIRMED/S USTAINED BY THE LEARNED CIT(A) WAS QUITE JUSTIFIED AND WE CONFIRM THE SAME. WE ORDER ACCORDINGLY. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA N0. 2553/MUM/2009 FOR THE ASSESSMENT YEAR 2002-03 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JULY , 2016. # $% &' 13-07-2016 ( ) SD/- SD/- (AMIT SHUKLA) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 13-07-2016. [ ITA 2553/MUM/2009 10 .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI A BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI