BHAVANJI S. BHADRA, MUMBAI V. D.C.I.T. (OSD-I) CENTRAL RG.7, MUMBAI

ITA 4872/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3846 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 10-03-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 26-07-2012
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY R PARIKH
• Keywords: Gift; Search and seizure; Revised return

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE SHRI R.C.SHARMA , A M & SHRI SANDEEP GOSAIN , J M ./ ITA NO . 4872 /MUM /20 1 2 ( / ASSESSMENT YEAR : 200 3 - 200 4 ) SH RI BHAVANJI S. BHADRA, 501, NEELKANTH SOCIETY, HINGWALA LANE, GHATKOPAR (EAST), MUMBAI - 400077 VS. DCIT(OSD - I), CENTRAL RANGE - 7, MUMBAI ./ ./ PAN/GIR NO. : A A BPB 4429 M ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI SANJAY R. PARIKH /REVENUE BY : SHRI RAJENDRA KUMAR / DATE OF HEARING : 04 / 0 3 /2016 / DATE OF PRONOUNCEMENT 27/04 /201 6 / O R D E R PER R.C.SHARMA (A.M) : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), MUMBAI , DATED 22 - 5 - 2012 , FOR THE ASSESSMENT YEAR 200 3 - 0 4 , IN THE MATTER O F IMPOSITION OF PENALTY U/S. 271(1)(C) OF THE I.T.ACT . 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR LEVY OF PENALTY OF RS.3,50,000/ - IN RESPECT OF BOGUS GIFT RECEIVED BY IT. 3. LD. AR SUBMITTED THAT THE RETURN OF INCOME OF THE DONOR WAS FILED AT INCOME OF RS.43,94,916/ - FOR THE RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION, ON WHICH DONOR HAS PAID INCOME TAX OF RS.12,92 ,475/ - . OUT OF ITS INCOME THE DONOR HAS GIVEN GIFT OF RS.10 LAKHS TO THE ASSESSEE. AS PER LD. AR, THE ASSESSEE HAS FILED FULL EXPLANATION WITH REGARD TO GENUINENESS OF GIFT, CREDITWORTHINESS OF DONOR AND GENUINENESS OF ITA NO. 4872 /1 2 2 TRANSACTION, HOWEVER, THE DEPARTMENT DID NOT AGREE WITH IT AND DURING SEARCH ASSESSEE HAS ALSO AGREED TO SURRENDER THIS AMOUNT AND TO PAY TAX THEREON. 4. WE HAVE CONSIDERED RIVAL CONTENTIONS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. FROM THE RECORD WE FOUND THAT THERE WAS SEARCH A T THE ASSESSEES PREMISES. DURING THE COURSE OF SEARCH, THE ASSESSEE OFFERED RS.2.77 CRORES AS ADDITIONAL INCOME COMPRISING OF RS.2.27 CRORES, RS.10 LAKHS AND RS.40 LAKHS FOR A.Y.05 - 06, 03 - 04 AND 01 - 02 RESPECTIVELY. THE AO FURTHER STATED THAT RS.2.77 CRORE S WAS OFFERED ON ACCOUNT OF BOGUS SHORT TERM AND LONG TERM CAPITAL GIAN ON SALE OF BOLTON SHARES AND RS.50 LAKHS WAS ON ACCOUNT OF BOGUS GIFTS OBTAINED BY THE ASSESSEE IN HIS NAME AND IN THE NAME OF FAMILY MEMBERS. DURING THE COURSE OF SEARCH ASSESSMENT PR OCEEDINGS, THE ASSESSEE COULD NOT PROVE THE GENUINENESS OF THE GIFT AND ACCORDINGLY THE AMOUNT OF RS.50,00,000/ - WAS DECLARED AS HIS ADDITIONAL INCOME. THE RELEVANT PORTION OF THE ASSESSEES STATEMENT IS AS UNDER : - GIFTS RECEIVED ON PAGE NO.135 TO 139 AR E THE TOTAL GIFTS RECEIVED BY ME AND FAMILY MEMBER AMOUNT TO RS.50 LACS. ABOUT THE GIFTS AMOUNTED TO RS.50 LACS, I AM OFFERING FOR TAXATION SINCE I AM NOT ABLE TO PROVE IDENTITY OF THE DONOR AND LOVE AND AFFECTION. AS THE GIFTS AMOUNT WAS NOT EVEN DECLAR ED IN THE RETURN FILED IN PURSUANCE TO THE NOTICE U/S.153A, THE AO LEVIED PENALTY WHICH WAS CONFIRMED BY CIT(A) AFTER GIVING DETAILED FINDING AT PARA 3.6 TO 3.10 OF HIS APPELLATE ORDER, AGAINST WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE US. WE FOUND THAT S IMILAR PENALTY LEVIED BY THE AO IN ASSESSEES OWN CASE FOR ITA NO. 4872 /1 2 3 ASSESSMENT YEAR 2001 - 02 WAS CONFIRMED BY THE TRIBUNAL VIDE ITS ORDER DATED 4 - 5 - 2011 AFTER HAVING THE FOLLOWING OBSERVATIONS : - 9. WE HEARD BOTH THE PARTIES. IN THE PRESENT CASE THE DISCLOSURE BY TH E ASSESSEE HAS COME ONLY AFTER DISCOVERY OF PARTICULARS OF INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSEE FILED REVISED RETURN ONLY AFTER THE ASSESSEE HAD ADMITTED OF THE BOGUS GIFTS IN THE DISCLOSURE U/S. 132(4). HENCE THE FACT IS THAT T HE ADDITION IS BASED ON INDEPENDENT DETECTION OF BOGUS GIFTS DURING THE SEARCH AND SEIZURE OPERATION AND ONLY SUBSEQUENTLY THE REVISED RETURN OF INCOME WAS FILED BY THE ASSESSEE. THE CASE OF BILAND RAM HARGAN DASS VS CIT 171 ITR 390, THE ALLAHABHAD HIGH CO URT HAS HELD THAT ANY ADMISSION OR DISCLOSURE COMING AFTER THE DETECTION OF CONCEALMENT CANNOT BE TREATED AS VOLUNTARY AND AS SUCH, IS LIABLE TO LEVY OF PENALTY U/S. 271(1)(C) OF THE I.T. ACT. HENCE WE CONFIRM THE PENALTY IMPOSED BY THE AO AND CONFIRMED BY THE LD. CIT(A). AN APPEAL WAS ALSO FILED BEFORE THE HONBLE BOMBAY HIGH COURT, THAT WAS ALSO DISMISSED BY THE HONBLE HIGH COURT VIDE ORDER DATED 21 - 9 - 2015. AS THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDERATION ARE SAME, RESPECTFULLY FOLLOWI NG THE ORDER OF THE TRIBUNAL AS WELL AS HONBLE BOMBAY HIGH COURT, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF AO FOR LEVYING THE PENALTY. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 27/04 / 201 6 . SD/ - SD/ - ( SANDEEP GOSAIN ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 27/04 /201 6 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE R ESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//