SANJAY KOHLI, MUMBAI V. ACIT CC 25, MUMBAI

ITA 4335/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4415 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Department
• Bench Allotted: E
• Assessment Year: 2003-2004
• Appeal Filed On: 19-06-2014
• Court: TRIBUNAL
• Department Lawyers: J SARAVANAN DR
• Assessee Lawyers: NISHI GANDHI
• Keywords: Gift

Judgement Text

, , E, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.4335/MUM/2014 ASSESSMENT YEAR: 2003-04 SANJAY KOHLI, 1101-106, OCEAN VIEW BLDG, DECCAN CHS, UNION PARK, KHAR (W), MUMBAI-400052 / VS. A CIT CENTRAL CIR - 2 5, MUMBAI (ASSESSEE ) (REVENUE) P.A. NO. AFDPK425 5M !' / ASSESSEE BY SHRI NISHI GANDHI (AR) / REVENUE BY SHRI J. SARAVANAN (DR) # $ % & / DATE OF HEARING : 23/12/2015 % & / DATE OF ORDER: 8/01/2016 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3 9, MUMBAI {(IN SHORT LD. CIT(A)} DATED 3.03.2012 FOR T HE SANJAY KOHLI 2 ASSESSMENT YEAR 2003-04, DECIDED AGAINST THE QUANTU M ORDER U/S 271(1)(C) OF THE ACT PASSED BY THE ASSESSING OF FICER (IN SHORT AO). 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE BY SHRI NISHI GANDHI, AUTHORISED REPRESENTATIVE (AR) ON BEH ALF OF THE ASSESSEE AND BY SHRI J. SARAVANAN, DEPARTMENTAL REPRESENTATIVE (DR) ON BEHALF OF THE REVENUE. 3. IN THIS APPEAL, ASSESSEE HAS CHALLENGED THE LEVY O F PENALTY U/S 271(1)(C) ON THE AMOUNT OF GIFT OF RS.50,00,000 /-. 3.1. WE HAVE HEARD BOTH THE PARTIES. IT IS BROUGHT TO O UR NOTICE THAT IMPUGNED AMOUNT OF ADDITION ON WHICH PENALTY W AS LEVIED HAS BEEN DELETED BY THE TRIBUNAL IN ORDER DATED 14. 01.2015 ITA NO.3831/MUM/2012, THE RELEVANT PORTION OF THE A BOVE SAID ORDER OF THE TRIBUNAL IS REPRODUCED BELOW: 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ADMITTED FACTS ARE THAT THE ASSESSEE HA D DULY DISCLOSED THE RECEIPT OF GIFT OF RS.50.00 LAKHS IN THE ORIGINAL RETURN OF INCOME FILED FOR THIS YEAR WELL BEFORE THE DATE OF SEARCH. IT IS ALSO AN UNDISPUTED FACT THAT THE ASSESSING OFFICER, DURING THE COURSE OF ORIGINAL AS SESSMENT PROCEEDINGS, HAS MADE ENQUIRIES ABOUT THE GIFT NOT ONLY WITH THE ASSESSEE, BUT ALSO WITH THE DONOR DIRECTLY . BOTH THE ASSESSEE AS WELL AS THE DONOR HAS DULY REPLIED TO THE QUERIES RAISED BY THE AO. HAVING SATISFIED WITH THE SANJAY KOHLI 3 GENUINENESS OF THE GIFT, THE ASSESSING OFFICER DID NOT MAKE ANY ADDITION. 8. DURING THE COURSE OF SEARCH PROCEEDING, THE DEPA RTMENT HAS FOUND THE GIFT CONFIRMATION LETTER AND THE AC H AS PROCEEDED TO EXAMINE THE SAME ON THE BASIS OF THIS DOCUMENT. IN THIS REGARD WE AGREE WITH THE CONTENTI ONS OF THE LD A.R THAT THIS GIFT CONFIRMATION LETTER CANNO T BE CONSIDERED TO BE AN INCRIMINATING MATERIAL WARRANTI NG AN EXAMINATION, SINCE IT ONLY CONFIRMS THE DISCLOSURE ALREADY MADE BY THE ASSESSEE AND NOT AGAINST SUCH DISCLOSUR E. A MATERIAL CAN BE CONSIDERED TO BE AN INCRIMINATING MATERIAL, ONLY IF IT SHOWS THAT THE APPARENT WAS NO T REAL. A PERUSAL OF THE PRESENT ASSESSMENT ORDER ALS O SHOWS THAT THE ASSESSING OFFICER HAS ONLY REVISITED THE CONCLUDED MATTER RELATING TO THE GIFT AND ASSESSED THE SAME ON CERTAIN NEW GROUNDS NOT EMANATING FROM THE SEARCH. 9.IN OUR VIEW, THE DECISION RENDERED BY HON'BLE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF MUR AL' AGRO PRODUCTS LTD (SUPRA) COMES TO THE SUPPORT OF T HE ASSESSEE. I.E. THE ASSESSING OFFICER IS NOT ENTITLE D TO DISTURB THE CONCLUDED ASSESSMENTS IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. ACCORDINGLY, WE ARE OF THE VIEW THAT THE LD CIT(A) WAS NOT JUSTIFIED IN CONFIR MING THE ASSESSMENT OF GIFT AMOUNT OF RS.50.00 LAKHS IN THIS YEAR. WE NOTICE THAT THE ASSESSEE HAS RAISED THIS L EGAL GROUND BEFORE THE LD CIT(A), BUT THE FIRST APPELLAT E AUTHORITY HAS DECLINED TO ADMIT THE SAME. IN OUR VI EW, SANJAY KOHLI 4 THE ACTION OF LD CIT(A) IN REJECTING THE LEGAL GROU ND IS NOT JUSTIFIED. ACCORDINGLY, WE SET ASIDE THE ORDER OF L D CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDI TION OF RS.50.00 LAKHS RELATING TO THE GIFT RECEIPT. 3.2. THUS, IT IS NOTED FROM THE ABOVE THAT THE BASIS OF LEVY OF PENALTY CEASED TO EXIST. UNDER THESE CIRCUMSTANCES, PENALTY CANNOT BE SUSTAINED. THEREFORE, PENALTY IS DIRECTED TO BE DELETED. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JANUARY, 2016. SD/- (JOGINDER SINGH) SD/- (ASHWANI TANEJA) '# / JUDICIAL MEMBER $# / ACCOUNTANT MEMBER # $ MUMBAI; ( DATED ; 8/01/2016 CTX? P.S/. . . %'&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / # 0 ( * ) / THE CIT, MUMBAI. 4. / / # 0 / CIT(A)- , MUMBAI 5. 34 - , / *& 5 , # $ / DR, ITAT, MUMBAI 6. 6! 7$ / GUARD FILE. / BY ORDER, .3* - //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI