Uma Bhatia, Faridabad V. ACIT, Faridabad

ITA 5119/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86954 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 05-01-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 06-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P CHANDRAKER
• Assessee Lawyers: VINAY BHATIA
• Keywords: Gift

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H : NEW DELHI BEFORE SHRI R.S.SYAL , ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 5119 /DEL/ 2013 (ASSESSMENT YEAR: 2007 - 08 ) UMA BHATIA 20/6, MATHURA ROAD, FARIDABAD PAN:ABBPB4107B VS. ACIT CENTRAL CIRCLE - 1 FARIDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SH. V INAY BHATIA , CA RESPONDENT BY : J. P. CHANDRAKER, SR. DR DATE OF HEARING 05.01.2015 DATE OF PRONOUNCEMENT 25 .02.2015 O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS PENALTY APPEAL ARISES FROM THE ORDER OF THE LD CIT(A), CENTRAL, GURGAON DATED 26.06.2013 FOR ASSESSMENT YEAR 2007 - 08. 2. THE GROUND OF APPEAL IS AS UNDER: - ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD CIT(A), CENTRAL GURGAON HAS FAILED TO APPRECIATE THAT ASSESSMENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE SEPARATE PROCEEDINGS AND WHILE IMPOSING PENALTY. THE ACIT HAS NOT BROUGHT ANYTHING RECORD TO LEVY THE PENALTY. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH OPERATION WAS CONDUCTED ON 07.02.2007, COVERING THE RESIDENTIAL AS WELL AS THE BUSINESS PREMISES OF THE ASSESSEE. JEWELLERY VALUED AT RS.11,01,066/ - WAS FOUND OUT OF WHICH RS. 4,03,610/ - WAS SEIZED OUT OF THE TOTAL WEIGHT 1469 GRAMS, THE ASSESSEE HAD EXPLAINED THAT 700 GRAMS WAS GIVEN BY THE PARENTS AND PARENTS - IN - LAWS AT TIME OF MARRIAGE AND THE BALANCE 770 GRAMS HAD BEEN ACQUIRED DURING THEIR MARRIED LIFE SPANING OVER 36 YEARS . THE AO GAVE BENEFIT TO THE EXTENT OF 500 GRAMS AS GIFTED BY THE PARENTS AND PARENTS - IN - LAW. ACCORDINGLY 200 GRAMS VALUED AT RS. 1,74,000/ - @ RS. 8,700/ - PER 10 GRAMS, WAS ADDED BACK. AS REGARDS THE BALANCE, EVIDENCE TO THE EXTENT OF ACQUISITION OF 722 GRAMS WAS PAGE 2 OF 3 FURNISHED WHICH WAS ACCEPTED AND THE BALANCE OF 48 GMS VALUE D AT RS.41,760/ - WAS SURRENDE RED. LATER ON, THE AO IMPOSED MINIMUM PENALTY OF RS.66,023/ - ON THE ASSESSEE VIDE ORDER DATED 27.03.2009. 4. AGGRIEVED BY THE SAID PENALTY LEVIED UPON HER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD CIT(A) WHO WAS PLEASED TO DISMISS THE SAME. 5. AGGR IEVED BY THE SAID ORDER OF THE LD CIT(A) THE ASSESSEE IS BEFORE US. 6. THE LD AR SUBMITTED THAT THE AUTHORITIES BELOW ERRED IN NOT TAKING INTO CONSIDERATION THAT 36 YEARS BACK AT THE TIME OF MARRIAGE OF THE ASSESSEE , SHE RECEIVED 8 00 GMS OF GOLD ORNAMENTS IN PLACE OF 500 MS OF G OLD EXCLUDED BY THE AO AND VALUING THE REST OF THE GOLD @ 8 700 - PER 10 GRAMS IS PURELY ON ESTIMATE BASIS AND SO IS WITHOUT AN BASIS ; AND ACCORDING TO HIM PENALTY CANNO T BE IMPOSED IF THE ADDITION IS MADE ON ESTIMATED BASIS. FURTHER IT WAS CONTENDED BY THE LD AR THAT THE ASSESSEE WAS ASKED TO PRODUCE THE BILLS OF JEWE LLERY WHICH WAS PURC HASED MUCH BEFORE THE YEAR 1999 - 2000 , HOWEVER ASSESSEE COULD PRODUCE BILLS FOR 722 GRMS AS AGAINST 770 GMS AND BILLS FOR ONLY 48 GMS OF GOLD ORNAMENTS COULD NOT BE LOCATED THOUGH THE JEWELLERY WAS VERY OLD AND WAS ACQUIRED BEFORE 19 9 9 - 2000 , AND ASSESSEE WHILE COOPERATING DURING THE ASSESSMENT PROCEEDINGS IN ORDER TO PURCHASE THE PEACE OF M IND T O AVOID FURTHER LITIGATION WITH THE DEPARTMENT SURRENDERED RS.41,760/ - SUBJECT TO NO PENALTY . 8 . THEREFORE THE LD AR CONTENDED THAT PENALTY U/S 271(1)(C) CANNOT BE LEVIED IN THIS CASE BECAUSE THERE HAS TO BE CONCEALMENT OF INCOME OR FU RNISHING OF INACCURAT E PARTICULARS OF INCOME FOR IMPOSING PENALTY. IN THE INSTANT CASE THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF J EWELLERY BELONGING TO HI S WIFE FOUND FROM THE RESIDENCE OF THE ASSESSEE WH I CH WAS EXPLA I NED IN WRITING AND AN AFFIDAVIT FROM THE WIFE OF ASSE SSEE WAS PLACED ON RECORD. ON THE OTHER HAND THE LD DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 9 . WE HAVE CONSIDERED THE RIVAL SUBMISSION AND PERUSED THE RECORDS . THE ORNAMENTS FOUND DURING SEARCH, WHICH WAS IN EXCESS OF 500 GMS AND FOR WHICH BILLS WERE PRODUCED WERE NOT BROUGHT TO TAX. THE ASSESSEES EXPLANATION ABOUT 248 GMS HAS BEEN TAXED AND NO APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE SAME. HOWEVER THE AO HAS LEVIED PAGE 3 OF 3 PENALTY OF RS.66,023/ - . THE ASSESSEE S EXPLANATION THAT THE GO LD SHE GOT BEFORE 36 YEARS DURING HER MARRIAGE IS PROBABLE AND THE BASIS OF ESTIMATION OF VALUE OF GOLD AT RS.8,700/ - PER 10 GMS HAS BEEN CONTESTED BY THE ASSESSEE. AND FURTHER T HE EXPLANATION OF THE ASSESSEE HAS NOT BEEN FOUND TO BE FALSE AND THEREFORE IS PROBABLE , SO WE ARE INCLINED TO DELETE THE PENALTY OF RS.66,023/ - . 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 .02.2015 . - SD/ - - SD/ - ( R.S.SYAL ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25 .02.2015 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI