Shri Kirtibhai K.Shroff, Surat V. The Income tax Officer, Ward-3(3), Surat

ITA 342/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80443 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 08-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND SR DR
• Assessee Lawyers: M K PATEL
• Keywords: Gift
• Section: 153A

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.342/AHD/2011 [ASSTT.YEAR : 2005-2006] SHRI KIRTIBHAI K. SHROFF FLAT NO.8-F, ANJAN SHALAKA APARTMENT, OPP: JAIN TEMPLE LAL BUNGLOW, ATHWALINES, SURAT. PAN : AXIPS 8738 P /VS. THE ITO, WARD-3(3) SURAT. ( (( ( -. -. -. -. / APPELLANT) ( (( ( /0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 ) / ASSESSEE BY : SHRI M.K. PATEL + 2 3 ) / REVENUE BY : SHRI ROOP CHAND, SR.DR 5 2 &(* / DATE OF HEARING : 3 RD SEPTEMBER, 2014 678 2 &(* / DATE OF PRONOUNCEMENT : 17/10/2014 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSTT.YEAR 2005-2006 IS DIRECTED AGAINST THE OR DER OF THE CIT(A). 2. THE ONLY GROUND OF THE APPEAL OF THE ASSESSEE IS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE AO IN LEVYING PENALTY OF RS.97,113/- U/S.271(1)(C) OF THE IT ACT, 1961 ITA NO.342/AHD/2011 -2- 3. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED T HAT THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS REGARDING VALIDITY O F PENALTY UNDER SECTION 271(L)(C) OF THE ACT AMOUNTING TO ` 97,133/-. HE SUBMITTED THAT DURING THE COURSE OF SEARCH CERTAIN VALUABLES INCLUDING JE WELLERY WAS FOUND AND THE ASSESSEE HAS FILED DETAILED EXPLANATION REGARDI NG THE SOURCE OF ACQUISITION OF JEWELLERY. THE ASSESSEE HAS EXPLAIN ED THAT OUT OF THE JEWELLERY FOUND, SOME PART BELONGS TO THE WIFE OF T HE ASSESSEE, AND SOME PART THEREOF WAS GIFTED BY THE MOTHER OF THE ASSESS EE TO THE WIFE OF THE ASSESSEE. HOWEVER, THE EXPLANATION OF THE ASSESSEE WAS NOT FULLY ACCEPTED AND OUT OF JEWELLERY WEIGHING 4492.5 GRAMS FOUND AT THE TIME OF SEARCH, THE JEWELLERY WEIGHING 783.15 GRAMS WAS TREATED AS INCOME FROM UNDISCLOSED SOURCE BY THE AO. HE SUBMITTED THAT THE ASSESSEE HAS FILED EXPLANATION, AND MERELY BECAUSE IT WAS NOT ACCEPTED DURING THE ASSESSMENT PROCEEDINGS, IT DOES NOT MEAN THAT THE ASSESSEE IS GUILTY FOR CONCEALMENT OF INCOME OR FILING OF INACCURATE PARTICULARS OF INCOM E. HE SUBMITTED THAT THE EXPLANATION OF THE ASSESSEE WAS BONA FIDE . 4. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF T HE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE DISCLOSURE WAS MADE BY THE ASSESSEE AT ` 1.65 CRORES AT THE TIME OF SEARCH PROCEEDINGS. THE SAME WAS NOT FULL AND FAIR AND SOME PART OF THE JEWELLERY WE IGHING 783.15 GRAMS WAS ADDED IN THE HANDS OF THE ASSESSEE. HE RELIED O N THE ORDERS OF THE AO AND THE CIT(A). 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE AO AND THE CIT(A) AS WELL AS ASSESSMENT ORDER AND T HE ORDER OF THE APPELLATE AUTHORITY IN QUANTUM APPEAL OF THE ASSESS EE. WE FIND THAT THE ASSESSEE HAS FILED A DETAILED EXPLANATION REGARDING SOURCE OF ACQUISITION OF ITA NO.342/AHD/2011 -3- JEWELLERY FOUND AT THE LIME OF SURVEY. THE ASSES SEE HAS ALSO MADE A DISCLOSURE OF ` 1.65 CRORES AT THE TIME OF SEARCH PROCEEDINGS, TAKI NG INTO CONSIDERATION THE ON-MONEY RECEIVED ON SALE OF LAND AND CERTAIN OTHER INVESTMENT, AND HAS DISCLOSED AN AMOUNT OF ` 1.65 CRORES IN ITS RETURN OF INCOME FILED IN RESPONSE TO THE NOTICE UNDER SECTI ON 153A OF THE ACT IN THE NAME OF THE ASSESSEE OR HIS FAMILY MEMBERS. WE FI ND THAT MERELY BECAUSE THE EXPLANATION OF THE ASSESSEE WITH REGARD TO THE ACQUISITION OF SOME PART OF THE JEWELLERY NOT ACCEPTED BY THE TAXING AUTHORI TIES, IT DOES NOT FOLLOW THAT THE ASSESSEE WAS GUILTY OF CONCEALMENT OF INCO ME OR FILING OF INACCURATE PARTICULARS OF INCOME. THERE IS NO MATE RIAL BROUGHT ON RECORD ON BEHALF OF THE REVENUE TO SUGGEST THAT THE EXPLAN ATION OF THE ASSESSEE REGARDING SOURCE FOR ACQUISITION OF JEWELLERY WAS N OT BOND FIDE. IN THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT IT IS NO T A FIT CASE FOR IMPOSITION OF PENALTY UNDER SECTION 271(L)(C) OF THE ACT WHICH IS ACCORDINGLY CANCELLED, AND THE GROUND OF THE APPEAL OF THE ASSE SSEE IS ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD