Sh. Vinod Kumar Jain, New Delhi V. ITO, New Delhi

ITA 275/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96923 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 14-07-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 15-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEVI SHARAN SINGH
• Assessee Lawyers: JITENDRA KUMAR GARG
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH SMC SMC SMC SMC : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA, VICE , VICE , VICE , VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT ITA NO ITA NO ITA NO ITA NO . .. . 275/DEL/2014 275/DEL/2014 275/DEL/2014 275/DEL/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2002 2002 2002 2002 - -- - 03 0303 03 SHRI VINOD KUMAR JAIN, SHRI VINOD KUMAR JAIN, SHRI VINOD KUMAR JAIN, SHRI VINOD KUMAR JAIN, J JJ J- -- -13, VIKASPURI, 13, VIKASPURI, 13, VIKASPURI, 13, VIKASPURI, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 018. 110 018. 110 018. 110 018. PAN : ACWPJ9441Q. PAN : ACWPJ9441Q. PAN : ACWPJ9441Q. PAN : ACWPJ9441Q. VS. VS. VS. VS. INCOME TAX OF INCOME TAX OF INCOME TAX OF INCOME TAX OF FICER, FICER, FICER, FICER, WARD WARD WARD WARD- -- -26(1), 26(1), 26(1), 26(1), ROOM NO.1807, BLOCK E ROOM NO.1807, BLOCK E ROOM NO.1807, BLOCK E ROOM NO.1807, BLOCK E- -- -2, 2,2, 2, CIVIC CENTRE, MINTO ROAD, CIVIC CENTRE, MINTO ROAD, CIVIC CENTRE, MINTO ROAD, CIVIC CENTRE, MINTO ROAD, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JITENDRA KUMAR GARG, CA. RESPONDENT BY : SHRI DEVI SHARAN SINGH, SR.DR. DATE OF HEARING : 14.07.2015 14.07.2015 14.07.2015 14.07.2015 DATE OF PRONOUNCEMENT : 03.08.2015 03.08.2015 03.08.2015 03.08.2015 ORDER ORDER ORDER ORDER THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2002-03 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XVIII, NEW DELHI DATED 30 TH OCTOBER, 2013. 2. THE ONLY EFFECTIVE GROUND OF APPEAL OF THE ASSES SEE IS GROUND NO.1, WHICH IS REPRODUCED HEREUNDER:- ON THE FACTS AND IN LAW THE LEARNED CIT(APPEALS) E RRED IN SUSTAINING THE PENALTY OF RS.139730/- IMPOSED BY TH E ASSESSING OFFICER REJECTING THE SUBMISSIONS MADE BY THE APPELLANT. 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 AMOUNTING TO `1,39,730/- WAS IMPOSED ON THE ASSESSEE ON THE ISSUE THAT THE AMOUN T OF `5 LAKHS WAS ADDED TO THE INCOME OF THE ASSESSEE BY REJECTING TH E BONA FIDE ITA-275/DEL/2014 2 EXPLANATION OF THE ASSESSEE THAT THESE AMOUNTS WERE RECEIVED BY THE ASSESSEE AS GIFTS. HE SUBMITTED THAT THE ASSESSEE HAS FILED EXPLANATION WHICH WAS BONA FIDE AND THE ASSESSEE HAS FILED DOCUMENTS LIKE MEMORANDUM OF GIFT, AFFIDAVIT, PERMANENT ACCOU NT NUMBER CARD, COPY OF INCOME TAX RETURN AND WEALTH TAX RETURN, CO PY OF BANK ACCOUNT OF THE DONOR AND, THEREFORE, HAS ESTABLISHED THE ID ENTITY AND CREDITWORTHINESS OF THE DONOR AND THE GENUINENESS O F THE TRANSACTION. HE SUBMITTED THAT THE COPIES OF THESE DOCUMENTS HAV E BEEN FILED IN THE COMPILATION BEFORE THE TRIBUNAL AT PAGES 9.1 TO 9.13. HE SUBMITTED THAT MERELY BECAUSE THE ADDITION WAS MADE IN THE QU ANTUM CASE OF THE ASSESSEE AND THE ASSESSEE DID NOT PREFER ANY APPEAL AFTER THE ORDER OF LEARNED CIT(A), IT IS NOT FOLLOWED THAT PENALTY SHO ULD BE IMPOSED ON THE ASSESSEE U/S 271(1)(C) OF THE ACT. 4. LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LE ARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE H AS FAILED TO ESTABLISH THE GENUINENESS OF THE GIFT CLAIMED BY IT AND THE ADDITION HAS BEEN CONFIRMED BY THE LEARNED CIT(A). HE SUBMITTED THAT THE DOCUMENTS FILED BY THE ASSESSEE WERE SELF-SERVING D OCUMENTS. HE RELIED ON THE ORDER OF THE ASSESSING OFFICER AND TH E LEARNED CIT(A). 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT( A) AND ALSO THE COPIES OF VARIOUS DOCUMENTS FILED IN THE COMPILATIO N BEFORE THE TRIBUNAL. I FIND THAT THE ASSESSEE HAS FILED EXPLA NATION WHICH HAS BEEN CLAIMED TO BE BONA FIDE AND HAS FILED THE DOCUMENTARY EVIDENCE IN THE FORM OF MEMORANDUM OF GIFT, AFFIDAVIT, PERMANENT AC COUNT NUMBER CARD, COPY OF INCOME TAX RETURN AND WEALTH TAX RETU RN AND COPY OF BANK ACCOUNT OF THE DONOR. I FIND THAT MERELY BECAUSE T HE ADDITION MADE IN THE QUANTUM CASE OF THE ASSESSEE WAS SUSTAINED BY T HE LEARNED CIT(A) AND THE ASSESSEE DID NOT PREFER APPEAL TO THE TRIBU NAL, IT COULD NOT BE SAID THAT THE ASSESSEE SHOULD ALSO BE VISITED WITH PENALTY FOR ITA-275/DEL/2014 3 CONCEALMENT OF INCOME OR FOR FILING OF INACCURATE P ARTICULARS OF INCOME. I FIND THAT THERE IS NO FINDING OF THE REVENUE AUTH ORITIES THAT THE VARIOUS DOCUMENTS FILED BY THE ASSESSEE IN SUPPORT OF ITS CASE FOR GENUINENESS OF THE GIFT, WERE NOT GENUINE. IT IS W ELL-SETTLED THAT THE PARAMETERS FOR JUDGING THE VALIDITY OF ADDITION MAD E IN THE QUANTUM CASE AND THE PENALTY LEVIED ON THE ASSESSEE U/S 271 (1)(C) OF THE ACT FOR CONCEALMENT OF INCOME OR FOR FILING OF INACCURATE P ARTICULARS OF INCOME ARE DIFFERENT. THE ADDITION COULD BE SUSTAINED ON PREPONDERANCE OF PROBABILITIES BUT THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT COULD NOT BE SUSTAINED ON MERE PROBABILITIES. IN THE FACTS O F THE CASE, I HOLD THAT THE REVENUE COULD NOT PROVE THAT THE ASSESSEE WAS G UILTY OF CONCEALMENT OF INCOME OR FOR FILING OF INACCURATE P ARTICULARS OF INCOME AND, ACCORDINGLY, THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT IS CANCELLED, AND THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 3 RD AUGUST, 2015. SD/- (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI VINOD KUMAR JAIN, SHRI VINOD KUMAR JAIN, SHRI VINOD KUMAR JAIN, SHRI VINOD KUMAR JAIN, J JJ J- -- -13, VIKASPURI, NEW DELHI 13, VIKASPURI, NEW DELHI 13, VIKASPURI, NEW DELHI 13, VIKASPURI, NEW DELHI 110 018. 110 018. 110 018. 110 018. 2. RESPONDENT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -26(1) 26(1) 26(1) 26(1), ,, , ROOM NO.1807, BLOCK E ROOM NO.1807, BLOCK E ROOM NO.1807, BLOCK E ROOM NO.1807, BLOCK E- -- -2, 2,2, 2, CIVIC CENTRE, MINTO ROAD, NEW DELHI. CIVIC CENTRE, MINTO ROAD, NEW DELHI. CIVIC CENTRE, MINTO ROAD, NEW DELHI. CIVIC CENTRE, MINTO ROAD, NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR