Smt. Kusum Lata Thakral, Panipat V. ITO, Panipat

ITA 4128/DEL/2009

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2736 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 15-10-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 16-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RICHA RASTOGI SENIOR
• Keywords: Gift
• Section: 68; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI I.C. SUDHIR AND SHRI L.P. SAHU ITA NO. 4128/DEL/2009 ASSESSMENT YEAR: 2003-04 KUSUM LATA THAKRAL, VS. ITO, H.NO. 126-R, WARD-3, MODEL TOWN, PANIPAT PANIPAT (HR.) (PAN: ABLPT6458R) (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI VED JAIN , CA DEPARTMENT BY: MS. RICHA RASTO GI, SENIOR DR DATE OF HEARING : 15 .10.2015 DATE OF PRONOUNCEMENT: 13 :01.2016 ORDER PER I.C. SUDHIR: JUDICIAL MEMBER THE ASSESSEE HAS QUESTIONED SUSTAINING OF PENALTY OF RS.3,15,000 LEVIED UNDER SEC. 271(1(C) OF THE INCOME-TAX ACT, 1 961 BY THE LEARNED CIT(APPEALS). 2. HEARD AND CONSIDERED THE ARGUMENTS ADVANCED BY T HE PARTIES IN VIEW OF ORDERS OF THE AUTHORITIES BELOW, MATERIAL AVAILA BLE ON RECORD AND THE DECISIONS RELIED UPON.. IN SUPPORT OF THE GROUNDS, THE LEARNED AR SUBMITTED THAT THERE WAS NO CONCEALMENT OF PARTICULARS OR FUR NISHING INACCURATE PARTICULARS THEREOF ON THE PART OF THE ASSESSEE TOW ARDS THE ADDITIONS OF RS.10 LACS MADE UNDER SEC. 68 OF THE ACT TO ATTRACT THE P ENAL PROVISIONS UNDER 2 SECTION 271(1)(C) OF THE ACT. HE SUBMITTED THAT GIF T OF RS.10 LACS WERE RECEIVED FROM VARIOUS PERSONS. RS.2,50,000 AS A GIF T WAS RECEIVED FROM SMT. NEELAM RANI, RS.3,25,000 FROM SMT. KIRAN RANI AND R S.3,75,000 FROM SMT. BHIRAWAN BAI, ALL FROM ROHTAK. THE ASSESSEE COULD N OT PRODUCE THE ONUS FOR VERIFICATION BEFORE THE ASSESSING OFFICER AT PANIPA T. BEFORE THE ASSESSING OFFICER, THE DONORS DENIED TO HAVE GIVEN THE CLAIME D GIFTS TO THE ASSESSEE. THEY ALSO DENIED ANY RELATIONSHIP WITH THE ASSESSEE AND THEY SHOWN THEIR UNAWARENESS AS TO WHO HAD DEPOSITED AMOUNT IN THEIR BANK ACCOUNTS. THEY, HOWEVER, CONFIRMED THAT THE DONATION PAPERS WERE SI GNED BY THEM BUT THEY WERE NOT KNOWING WHAT WERE THOSE PAPERS AND FOR WHA T PURPOSE THEY WERE TO BE USED. IN THE CIRCUMSTANCES, THE ASSESSING OFFICE R MADE ADDITION OF THE AMOUNT OF THE ALLEGED GIFTS WHICH WAS CONFIRMED BY THE LEARNED CIT(APPEALS) AND SUBSEQUENTLY UPHELD BY THE ITAT. O N THIS ADDITION, PENALTY OF RS.3,15,000 HAS BEEN LEVIED. HE SUBMITTE D THAT ASSESSMENT AS WELL AS PENAL PROCEEDINGS ARE INDEPENDENT TO EACH OTHER. THERE WAS NO POSITIVE EVIDENCE THAT ASSESSEE HAD CONCEALED PARTICULARS OF INCOME OR HAD FURNISHED INACCURATE PARTICULARS THEREOF TOWARDS THE ADDITION AS THE GIFTS WERE PAID BY THE DONORS THROUGH BANK ACCOUNT AND CHEQUES/DRAFTS WERE SIGNED BY THEM. BESIDES THEIR STATEMENTS WERE RECORDED AT THE BACK OF THE ASSESSEE WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THEM. THE 3 LEARNED AR ALSO REFERRED PAGE NOS. 1 TO 31 OF THE P APER BOOK I.E. COPIES OF RETURN FILING ACKNOWLEDGEMENT SHOWING GIFT DEED FIL ED WITH THE RETURN, GIFT DEEDS, STATEMENT OF DONORS SMT. BHIRAVA BAI AND SMT NEELAM ARORA, EXPLANATION FURNISHED ON 28.2.2006 IN RESPONSE TO N OTICE DATED 17.2.2006, REPLY FURNISHED AGAINST SHOW-CAUSE NOTICE ISSUED UN DER SEC. 271(1)(C) OF THE ACT DATED 5.06.2009, WRITTEN SUBMISSIONS TO THE LEA RNED CIT(APPEALS), ORDER OF THE ITAT IN QUANTUM AND COPY OF PUNJAB NAT IONAL BANKS A/C. NO. 01207126 OF THE ASSESSEE SHOWING GIFT CREDITED. HE PLACED RELIANCE ON THE FOLLOWING DECISIONS: I) CIT VS. ORISSA CORPORATION (P) LTD. 159 ITR 7 8 (S.C); II) CIT VS. DAULAT RAM RAWAT MAL 53 ITR 574 (S.C ); III) CIT VS. RAM NARAIN GOYAL 224 ITR 180 (P&H); 3. THE LEARNED SENIOR DR ON THE OTHER HAND TRIED TO JUSTIFY THE ORDERS OF THE AUTHORITIES BELOW WITH THE SUBMISSIONS THAT IN THE CLAIMED GIFTS ELEMENTS OF LOVE AND AFFECTION ARE MISSING. THE FACTS AND CI RCUMSTANCES OF THE CASE SUGGESTS THAT ASSESSEE HAD MANAGED THE ENTRIES OF G IFT. THUS, THERE WAS CONCEALMENT OF PARTICULARS OF INCOME AND FURNISHING OF INACCURATE PARTICULARS THEREOF ON THE PART OF THE ASSESSEE TOWARDS THE ADD ITION. 4 4. CONSIDERING THE ABOVE SUBMISSION, WE FULLY CONCU R WITH THE SUBMISSION OF THE LEARNED AR THAT ASSESSMENT PROCEE DINGS AND PENAL PROCEEDINGS UNDER SEC. 271(1)(C) ARE TWO INDEPENDEN T PROCEEDINGS. IN OTHER WORDS, UPHOLDING OF AN ADDITION DOES NOT AUTOMATICA LLY LEAD TO IMPOSITION OF THE PENALTY. BEING PENAL IN NATURE, THE LEGISLATURE HAS PRESCRIBED SOME PRECAUTION FOR INVOCATION OF THE PROVISIONS UNDER S EC. 271(1)((C) OF THE ACT. THESE PRECAUTIONS ARE THAT THERE MUST BE CONCEALMEN T OF PARTICULARS OF INCOME OR FURNISHING IN ACCURATE PARTICULARS THEREO F ON THE PART OF THE ASSESSEE TOWARDS THE ADDITION I.E. SUBJECT MATTER O F THE PENALTY. IN THE PRESENT CASE BEFORE US, THE ONE UNDISPUTED FACTS IS THAT TH E GIFT AMOUNTS WERE PAID TO THE ASSESSEE THROUGH THEIR BANK ACCOUNTS VIDE CHEQU ES/DRAFTS. THE DONORS HAVE, HOWEVER, DENIED THE CLAIMED GIFTS AND ANY REL ATIONSHIP WITH THE ASSESSEE ON THE BASIS OF WHICH ADDITION UNDER SEC. 68 OF THE ACT HAS BEEN MADE BY THE ASSESSING OFFICER AND UPHELD BY THE ITA T. THERE MAY BE SEVERAL REASONS FOR THEIR DENIAL TO THE CLAIMED GIF TS BY THEM AND THEIR STATEMENTS WITHOUT THEIR CROSS EXAMINATION BY THE A SSESSEE CANNOT LEAD TO A FINDING WITHOUT DOUBT THAT THERE WAS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS THEREOF ON THE PA RT OF THE ASSESSEE TOWARDS THE CLAIMED GIFT TO ATTRACT THE PENALTY PROVISIONS UNDER SEC. 271(1)(C) OF THE ACT ESPECIALLY WHEN THERE IS UNDISPUTED MATERIAL FA CT THAT THE GIFT AMOUNT 5 WERE PAID THROUGH BANKING CHANNEL. UNDER THESE FACT S AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT IT MAY BE A GOOD CASE FOR JUST IFICATION OF ADDITION UNDER SEC. 68 OF THE ACT BUT NOT A FIT CASE TO ATTRACT PE NAL PROVISIONS UNDER SEC.271(1)(C) OF THE ACT . WE THUS WHILE SETTING AS IDE THE ORDERS OF THE AUTHORITIES BELOW, DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY OF RS.3,15,000 LEVIED AND SUSTAINED BY THE AUTHORITIES BELOW. THE GROUNDS INVOLVING THE ISSUE ARE ACCORDINGLY ALLOWED. 5. IN RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 .01.2016 SD/- SD/- ( L.P. SAHU ) ( I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 /01/2016 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR 6 DATE DRAFT DICTATED ON COMPUTER 12.01.2016 DRAFT PLACED BEFORE AUTHOR 12.01.2016 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 13.01.20 16 APPROVED DRAFT COMES TO THE SR.PS/PS 13.01.2016 KEPT FOR PRONOUNCEMENT ON 13.01.2016 FILE SENT TO THE BENCH CLERK 13.01.2016 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.