Dr. Falguni D. Mehta, Morbi V. The Income Tax Officer, Ward-5(3), RAJKOT-GUJARAT

ITA 52/RJT/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0479 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2001-2002
• Appeal Filed On: 17-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S ANJARIYA
• Assessee Lawyers: HARISH RANPURA
• Keywords: Gift

Judgement Text

ITA NO.52/ RJT/201 5 ASSESSMENT YEAR: 2001 - 02 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, SMC , RAJKOT (CONDUCTED THROUGH E - COURT AT AHMEDABAD) [CORAM: PRAMOD KUMAR AM ] ITA NO. 52/ R JT / 2 0 1 5 ASSESSMENT YEAR: 200 1 - 02 DR. FALGUNI D . MEHTA, ....... .. . ..... APPELLANT C/O. SHREEJI OR THO HOSPITAL, NEAR OLD BUS STAND, MORBI. [PAN A B WPB 2911 Q ] VS. INCOME TAX OFFICER , ....... ..................RESPONDENT WARD 5(3), RAJKOT. APPEARANCES BY: HARISH RANPURA FOR THE A PPELLANT C.S. ANJARIYA FOR THE RESPONDENT DATE OF CONCLUDING T HE HEARING : NOVEMBER 30 TH , 201 5 DATE OF PRONOUNCING THE ORDER : NOVEMBER 30 TH , 2015 O R D E R PER PRAMOD KUMAR AM: 1. BY WAY OF TH IS APPEAL, THE ASSESSE APPELLANT HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 9 TH DECEMBER, 2014 PASSED BY THE LD . CI T ( A ) CONFIRMING PENALTY OF RS.38,893/ - IMPOSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 ( THE ACT FOR SHORT) FOR THE ASSESSMENT YEAR 2001 - 02. 2. WHEN THI S APPEAL WAS CALLED OUT FOR HEARING, LD. COUNSEL FOR THE ASSESS E E POINTED OUT THAT THE REL ATED ASSESSMENT ORDER PASSED ON WHICH THE IMPUGNED PENA L TY IS LEVIED ITA NO.52/ RJT/201 5 ASSESSMENT YEAR: 2001 - 02 PAGE 2 OF 4 HAS ALREADY BEEN VACATED BY THIS TRIBUNAL AND THE MATTER HAS BEEN RESTORED TO THE FILE OF A SSESSING OFFICER F OR FRESH ADJUDICATION. 3. LEARNED DEPARTMENTAL REPRESENT ATIVE DOES NOT DISPUT E THIS FACTUAL POSITION. LEARNED DEPARTMENTAL REPRESENT ATIVE, HOWEVER , SUBMITS THAT IN A SITUATION IN WHICH PENALTY IS ALREADY LE V IED, IT CANNOT BE OPEN TO THE ASSESSING OFFICER TO INITIATE THE SAME PENALTY AGAIN. HE POINTED OUT MY ATTENTION TO THE PROCE DUR AL DIFFICULTIES INVOLVED IN THE COURSE OF ACTION TO BE FOLLOWED BY THE ASSESSING OFFICER IN SUCH CASES . 4. COMING TO THE MATERIAL FACTS OF THIS CASE, THE RELEVANT POSITION IS LIKE THIS. THE ASSESS E E HAD RECEIVED FOUR GIFTS FROM HER FAMILY MEMBERS OF R S.30,000/ - EACH . T HE STATEMENT S OF THE PERSON S GIVING THE GIFTS WERE DULY RECORDED. HOWEVER, THE GIFTS WERE HELD TO BE INGENUINE PRIMARILY FOR THE REASON SAID DONORS HAVE NOT GIVEN ANY GIFTS TO THE IR BLOOD RELATIVES OR NEAR RELATIVES NOR WAS THERE ANY O CCASION FOR GIVING SUCH GIFS IT WAS IN THIS BACKDROP THAT NOT ONLY THE ADDITION IS MADE BUT PENALTY UNDER SECTION 271(1)(C) WAS IMPOSED. AGGRIEVED BY THE PENALTY SO IMPOSED, THE ASSESSE CARRIED THE MATTER IN APPEAL BEFORE THE LD . CIT(A) WHO CONFIRMED TH E ACTION OF THE ASSESSING OFFICER BY RELYING UPON A DIVISION BENCH DECISION OF THIS TRIBUNAL IN THE CASE OF BRIGHT INDIA BODY BUILDERS VS. ITO, 27 TAXMAN N .COM 323 . THE ASSESSE E IS AGGRIEVED AND IS IN APPEAL BEFORE ME. 5. I HAVE HEARD THE RIVAL CONTENTION S, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF APPLICABLE LEGAL POSITION . I F IND THAT IN THIS ITA NO.52/ RJT/201 5 ASSESSMENT YEAR: 2001 - 02 PAGE 3 OF 4 CASE , THE ASSESS E E HAD GIVEN REASONABLE EVIDENCE IN SUPPORT OF GENUINENESS OF THE GIFTS AND EVEN THE PERSONS GIVING GIFTS WERE DULY PRODUCED BEFORE THE LD . CIT(A) . THAT ASPECT OF THE MATTER IS NOT IN DISPUTE AND THE GIFTS HELD TO BE BOGUS ON THE BASIS OF PREPONDERANCE OF PROBABILITIES. THE EXPLANATION WAS THUS AVAILABLE AND IT WAS NOT REJECTED, THOUGH IT WAS NOT FOUND SUFFICIENT IN THE QUANTUM PROC EEDINGS. IN MY CONSIDERED VIEW, THE EXPLANATION GIVEN BY THE ASSESSEE WAS A REASONABLE EXPLANATION SO FAR AS PENALTY PROCEEDINGS ARE CONCERNED. IN SUCH CIRCUMSTANCES , IN MY CONSIDERED VIEW , IT WAS NOT AT ALL A FIT CASE FOR IMPOSITION OF PENALTY UNDER SECTI ON 271(1) (C) OF THE ACT . THE PENALTY IS, THEREFORE , UNSUSTAINABLE IN LAW. IN ANY EVENT, SINCE THE RELATED QUANTUM ADDITION ITSELF IS VACATED AND THE MATTER RESTORED TO THE FILE OF THE ASSESSING OFFICER , PENALTY DOES NOT SURVIVE AT ALL. AS FOR THE QUESTI ON AS TO WHETHER PENALTY SHOULD BE INITIATED AFRESH ON THE BASIS OF ORDER PASSED ON THE REMANDED PROCEEDINGS , THAT ASPECT OF THE MATTER IS SOMEWHAT ACADEMIC IN THE PRESENT CASE. I LEAV E IT AT TH A T . 6. IN THE RESULT, APPEAL IS ALLOWED. DICTATED AND PRONO UNCED IN THE OPEN COURT TODAY ON 30 TH NOVEMBER, 2015. SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) AHMEDABAD , THE 30 TH DAY OF NOVEMBER , 2015 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ITA NO.52/ RJT/201 5 ASSESSMENT YEAR: 2001 - 02 PAGE 4 OF 4 ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT