Dy. Commissioner of Income Tax-1, Kanpur V. M/s. Sagun Malhotra Beneficiary Trust, Kanpur

ITA 379/LKW/2012

• Counselvise Citation: 37923714 RSA 2012
• Duration Of Justice: 1 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-02-2014
• Assessment Year: 2000-2001
• Appeal Filed On: 09-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: VIKAS GARG
• Keywords: Gift; Wrong claim; Revised return
• Section: 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.379/LKW/2012 ASSESSMENT YEAR:2000 - 2001 A.C.I.T. - 1, KANPUR. VS. M/S SAGUN MALHOTRA BENEFICIARY TRUST, 58, TAGORE ROAD, KANPUR. PAN:AADTS2663N (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ALOK MITRA, D.R. RESPONDENT BY SHRI VIKAS GARG, ADVOCATE DATE OF HEARING 04/02/2014 DATE OF PRONOUNCEMENT 1 1 /04/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, KANPUR DATED 20/03/2012 FOR THE ASSESSMENT YEAR 2000 - 2001. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.3,50,000/ - LEVIED UNDER SECTION 271(1)(C) OF INCOME TAX ACT, 1961, ON THE CONCEALED INCOME OF RS.10,00,000/ - WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ABOVE PENALTY WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER SHOWING THAT THE ASSESSEE HAD DELIBERATELY FURNISHED INACCURATE PARTICULARS OF ITS INCOME. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ABOVE PENALTY WITHOUT APPRECIATING THE FACT THAT T HE ACTION WAS TAKEN BY THE ASSESSING OFFICER ON THE BASIS OF CREDIBLE INFORMATION REGARDING TAX EVASION IN THE FORM OF BOGUS 2 GIFTS AS PROVIDED BY THE DIRECTOR OF INCOME TAX (INVESTIGATION), KANPUR. 4. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) - II, KANPUR, DATED 23.03.2012 NEEDS TO BE QUASHED AND THE PENALTY ORDER DATED 27.03.2008 PASSED BY THE ASSESSING OFFICER TO BE RESTORED. 5. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL MENTIONED ABOVE AND/OR TO ADD ANY FR ESH GROUNDS AS AND WHEN IT IS REQUIRED TO DO SO. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER. HE ALSO PLACED RELIANCE ON THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF MAC DATA P. LTD. VS. CIT ON 31.10.2013, COPY AVAILABLE ON RECORD. 4. AS AGAINST THIS, LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THIS ISSUE WAS DECIDED BY LEARNED CIT(A) IN FAVOUR OF THE ASSESSEE AS PER PARA 5 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 5. IN THE INSTANT CASE ALSO, NO CONCEALMENT WAS DETECTED BY THE ASSESSING OFFICER UP TO THE TIME OF SURRENDER OF THE GIFT BY WAY OF FILING THE REVISED RETURN OF INCOM E ON 16/10/2003. FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE CITED ABOVE AND ALSO OF THE JURISDICTIONAL ITAT, I AM OF THE VIEW THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE, PENALTY U/S 271(1)( C) OF THE INCOME TAX ACT,1961 IS NOT LEVIABLE. 6. FROM THE ABOVE PARA OF THE ORDER OF LEARNED CIT(A), WE FIND THAT THE ASSESSEE HAS SURRENDERED THE GIFT BY WAY OF FILING REVISED RETURN OF INCOME ON 16/01/2013. AS PER THE ASSESSMENT ORDER, WE FIND THAT TH E ORIGINAL RETURN WAS FILED ON 27/11/2000 BUT SUBSEQUENTLY THE ASSESSEE REVISED RETURN OF INCOME ON 16/10/2003 WHEREAS THE NOTICE U/S 148 WAS ISSUED BY THE CIT(A) ON 09/03/2004. FIRST OF ALL WE EXAMINE THE APPLICABILITY OF THE JUDGMENT OF HON'BLE APEX COU RT RENDERED IN THE CASE OF MAC DATA P. LTD. (SUPRA). IN 3 THAT CASE , RETURN OF INCOME WAS FILED BY THE ASSESSEE DECLARING AN INCOME OF RS.16 LAC S . IN THE COURSE OF ASSESSMENT PROCEEDINGS IN THAT CASE, THE ASSESSING OFFICER NOTICED CERTAIN DOCUMENTS COMPRIS ING OF SHARE APPLICATION FORMS, BANK STATEMENTS , BLANK SHARE DEED ETC , WHICH HAVE BEEN IMPOUNDED DURING THE COURSE OF SURVEY U/S 133A. IN THE FACTS OF THAT CASE, IT WAS NOTED BY HON'BLE APEX COURT THAT IN THAT CASE , THE SURRENDER OF INCOME WAS NOT VOLUNTA RY BECAUSE THE OVERALL SURRENDER WAS MADE IN VIEW OF THE DETECTION MADE BY THE ASSESSING OFFICER IN THE SEARCH CONDUCTED IN THE SISTER CONCERN OF THE ASSESSEE. IN THE PRESENT CASE, IN OUR CONSIDERED OPINION, THE FACTS ARE DIFFERENT. IN THE PRESENT CASE, NO SEARCH OR SURVEY WAS CONDUCTED IN THE CASE OF THE ASSESSEE OR IN ANY OF ITS SISTER CONCERN. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER IS ALLEGING THAT THE ASSESSEE FAILED TO PRODUCE SO CALLED DONOR AND THE ASSESSEE COULD NOT FURNISH ANY CONVINCING ANSWER IN RESPECT OF THE IDENTITY AND CAPACITY OF THE DONOR AND REGARDING NATURAL LOVE AND AFFECTION. UNDER THESE FACTS, IN OUR CONSIDERED OPINION, THE ADDITION MADE BY THE ASSESSING OFFICER MAY BE JUSTIFIED BUT STILL IN OUR CONSIDERED OPINION, IT IS NOT THE CASE OF THE CONCEALMENT FOR WHICH PENALTY U/S 271(1)(C) CAN BE IMPOSED BECAUSE APART FROM THE FAILURE OF THE ASSESSEE TO ESTABLISH THE FACTUM OF ALLEGED GIFT, NOTHING ADVERSE HAS BEEN BROUGHT ON RECORD TO ESTABLISH THAT THIS CLAIM OF TH E ASSESSEE REGA RDING GIFT IS AL TOGETHER A BOGUS OR FALSE CLAIM. UNDER THESE FACTS, IN OUR CONSIDERED OPINION, THE PENALTY IS NOT JUSTIFIED AND HENCE, WE DECLINE TO INTERFERE IN THE ORDER OF LEARNED CIT(A) ON THIS ISSUE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 1 /04/2014 *C.L.SINGH 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR