URMILA JHUNJHUNWALA, MUMBAI V. ACIT, CENT. CIR. - 7(1) (EARSTWHILE C.C. -40), MUMBAI

ITA 2759/MUM/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4286 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 15-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH LD
• Assessee Lawyers: S C TIWARI; RUTUJA PAWAR LD ARS
• Section: 143(3); 153A; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.2759/MUM/2016 ( / ASSESSMENT YEAR: 2012-13) RAJESH R. JHUNJHUNWALA AND OTHERS LEGAL HEIRS OF SMT. URMILA JHUNJHUNWALA 151-155, NARIMAN BHAVAN NARIMAN POINT, MUMBAI-400 021 / VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-7(1) [ERSTWHILE CENTRAL CIRCLE-40] ROOM NO.653,6 TH FLOOR AAYKAR BHAVAN, M.K. ROAD MUMBAI-400 020 ! ./ ./PAN/GIR NO. ABWPJ-2596-D ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) A SSESSEE BY : S.C. TIWARI & RUTUJA PAWAR, LD. ARS RE VENUE BY : CHAUDHARY ARUN KUMAR SINGH, LD. DR / DATE OF HEARING : 01/10/2018 / DATE OF PRONOUNCEMENT : 10/10/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEA R [AY] 2012- 13 CONTEST THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-49, MUMBAI [CIT(A)], APPEAL NO. CIT(A)-49/IT-768/2014-15 DATED 16/03/2016 QUA CONFIRMATION OF PENALTY U/S 271AAA FOR RS.66,700/-. THE ASSESSMENT FOR IMPUGNED AY WAS FRA MED BY LD. 2 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-4 0, MUMBAI U/S 143(3) READ WITH SECTION 153A OF THE INCOME TAX ACT ,1961 ON 12/03/2014 WHEREAS THE IMPUGNED PENALTY U/S 271AAA WAS LEVIED BY LD. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRC LE-40 ON 29/09/2014 . THE ASSESSEE HAS BEEN SADDLED WITH PENALTY OF RS.66,700/- AGAINST QUANTUM ADDITIONS OF RS.66.70 L ACS, WHICH UPON CONFIRMATION BY LD. CIT(A), IS BEING CONTESTED BEFO RE US. 2. THE MATERIAL ON RECORD REVEAL THAT THE ASSESSEE NAMELY SMT. URMILA JHUNJHUNWALA HAS EXPIRED ON 10/07/2017 AND THE DECEASED ASSESSEE HAS BEEN SUBSTITUTED BY HER LEGAL HEIR, SHRI R.K.JHUNJHUNWALA. REVISED FORM NO. 36, REFLECTING AFORESAID CHANGE, HAS BEEN FILED BY THE LEGAL HEIRS. FINDING THE SAME IN ORDER, WE PROCEED TO DISPOSE-OFF THE APPEAL AFTER APPRECIATIN G THE ARGUMENTS OF RESPECTIVE REPRESENTATIVES AS PLEADED BEFORE US. 3. PURSUANT TO SEARCH & SEIZURE ACTION U/S 132 ON 2 9/08/2011, THE ASSESSEE OFFERED RETURNED INCOME OF RS.77.19 LACS W HICH INCLUDED ADDITIONAL INCOME OF RS.66.67 LACS AS OFFERED BY TH E ASSESSEE DURING SEARCH PROCEEDINGS TO ACCOUNT FOR UNACCOUNTED GOLD / SILVER / DIAMOND JEWELLERY ETC. THE RETURNED INCOME HAS BEEN ACCEPTED AS SUCH BARRING AN AMOUNT OF RS.3,000/- WHICH REPRESEN T DIFFERENCE IN ADDITIONAL INCOME AS OFFERED BY ASSESSEE DURING SEA RCH PROCEEDINGS AND AS OFFERED BY HER IN THE RETURN OF INCOME. 4. CONSEQUENTLY, PENALTY PROCEEDINGS U/S 271AAA WER E INITIATED AGAINST THE QUANTUM ADDITIONS AND THE ASSESSEE HAS BEEN SADDLED WITH IMPUGNED PENALTY OF RS.66,700/- PRIMARILY ON T HE GROUND THAT NO 3 DOCUMENTARY EVIDENCES COULD BE SUBMITTED BY THE ASS ESSEE TO PROVE THE SOURCE OF ADDITIONAL INCOME OFFERED DURING SEAR CH PROCEEDINGS. THE PENALTY, UPON CONFIRMATION BY LD. FIRST APPELLA TE AUTHORITY, IS UNDER APPEAL BEFORE US. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIO NS AND PERUSED RELEVANT MATERIAL ON RECORD. AT THE OUTSET, IT IS N OTED THAT THE ADDITIONAL INCOME WHICH WAS THE SUBJECT MATTER OF IMPOSITION O F PENALTY WAS RS.66.70 LACS AND THE QUANTUM OF PENALTY COMPUTED @ 10% OF THE SAME COMES TO RS.6.67 LACS AS AGAINST RS.66,700/- A S COMPUTED BY LD. AO AND THE SAME BEARS COMPUTATIONAL ERROR. HOWE VER, WE ARE NOT CONCERNED WITH THE SAME, AT THE MOMENT. 6. IT IS UNDISPUTED FACT THAT THE ADDITIONAL INCOME AS OFFERED BY THE ASSESSEE IN THE SEARCH PROCEEDINGS HAS BEEN INCLUDE D IN THE RETURN OF INCOME FILED BY HER IN RESPONSE TO NOTICE U/S 153A AND THE SAME HAS ALSO BEEN ACCEPTED BY THE REVENUE. IT IS ALSO UNDIS PUTED FACT THAT THE ASSESSEE HAS ALREADY PAID THE DUE TAXES ON THE ADDI TIONAL INCOME. THEREFORE, THE ONLY REQUIREMENT LEFT TO COME UNDER THE SHELTER PROVIDED BY SECTION 271AAA WAS THE MANNER OF DERIVA TION OF UNDISCLOSED INCOME. THE ASSESSEE HAS ATTRIBUTED THE SAME TO HER PAST SAVINGS AND SUBMITTED THAT THE JEWELLERY WAS RE-MAKE OF THE OLD JEWELLERY, THE DOCUMENTARY EVIDENCES OF WHICH COULD NOT BE SUBMITTED BY HER DUE TO OLD AGE ETC. KEEPING IN VIEW THE PROF ILE OF THE ASSESSEE INCLUDING THE FACT THE ASSESSEE WAS 79 YEARS OLD AT THE TIME OF SEARCH, WE FIND THE EXPLANATION TO BE PLAUSIBLE ONE AND CON CUR WITH THE STAND OF LD. AR THAT THE ASSESSEE STOOD BENEFITTED BY THE SHELTER PROVIDED 4 BY LAW UNDER SECTION 271AAA. THEREFORE, KEEPING IN VIEW OVERALL FACTUAL MATRIX, WE ARE INCLINED TO DELETE THE IMPUG NED PENALTY. WE ORDER SO. 7. RESULTANTLY, THE ASSESSEES APPEAL STANDS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER, 2018. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED :10.10.2018 SR.PS:-THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. + ,$ - , - , / DR, ITAT, MUMBAI 6. , ./0 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI