Shri Prabhudas Hemraj Bajaj, Ahmedabad V. The Income tax Officer.Ward-2(2), Ahmedabad

ITA 526/AHD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51067 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 19-08-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 22-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Gift; Search and seizure; Opportunity of being heard
• Section: 143(3); 260A; 133(6); 68; 246; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI D. K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 526/ AHD/2011 (ASSESSMENT YEAR 2004-05) PRABHUDAS HEMRAJ BAJAJ (HUF), C/O M/S. K. MAHESHKUMAR, 2820/1, HASIJA HOUSE, SAKAR BAJAR, AHMEDABAD VS. ITO, WARD 2(2), AHMEDABAD PAN/GIR NO. : AAAHP6862R (APPELLANT) .. (RESPONDENT) APPELLANT BY: MS. URVASHI SHODHAN, AR RESPONDENT BY: SHRI MAHESH KUMAR, SR. DR DATE OF HEARING: 18.11.2011 DATE OF PRONOUNCEMENT: 22.12.2011 O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) XVI, AHMEDABAD DATED 25.01.2011 FOR THE ASSE SSMENT YEAR 2004- 05. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDE R: 1. THE ID. COMMISSIONER OF INCOME TAX (APP EALS) - XVI, AHMEDABAD [HEREINAFTER REFERRED TO AS CIT(A)] HAS G RIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY U/S. 271(1)(C) OF RS.1,18,5897- WHICH IS BAD IN LAW, BEING TIME BA RRED AS HAS BEEN PASSED IN TOTAL DISREGARD OF THE PROVISO TO SE CTION 275(1 )(A) INSERTED W.E.F. 01-06-2003. 2. WITHOUT PREJUDICE TO THE FIRST GROUND OF APPEAL, THE ID. CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN CON FIRMING THE PENALTY U/S. 271(1)(C) OF RS.1,18,589/- IN TOTAL DI SREGARD OF THE FACTS OF THE CASE AND LAW SETTLED BY THE APEX COURT IN THE CASE OF SURESHCHANDRA MITTAL (251 ITR 9). I.T.A.NO. 526 /AHD/2011 2 3. THE ID. DCIT HAS GROSSLY ERRED IN LAW AN D ON FACTS IN CONFIRMING THE PENALTY OF RS.1,18,589/- U/S. 271(1) (C) OF THE ACT WITHOUT ESTABLISHING THAT THE GIFTS OF RS.4,00,000/ - ADMITTED BY THE APPELLANT IS ITS CONCEALED INCOME. 4. THE APPELLANT CRAVES LEAVE TO ADD TO, AL TER, AMEND, MODIFY, SUBSTITUTE, CHANGE ANY OF THE GROUNDS AS AND WHEN T HE OCCASION MAY ARISE. 2. THE BRIEF FACTS OF THE SE TILL THE STATE OF IMPO SITION OF PENALTY ARE NOTED BY LD. CIT(A) IN PARA 2 OF HIS ORDER WHICH IS REPRODUCED BELOW: 2. IN THE PENALTY ORDER, THE AO HAS STATED THAT WH ILE FINALIZING THE ASSESSMENT AN ADDITION OF FAKE GIFTS OF RS. 5 LACS WAS MADE UNDER SECTION 68 AS UNEXPLAINED CASH CREDIT. THE ASSESSEE HOWEVER ACCEPTED THE ADDITION OF RS. 4 LAKH, BUT APPEALED A GAINST ADDITION OF RS. 1 LAKH IN RESPECT OF GIFT FROM GORDHANDAS K RISHNANI AND FILED THE APPEAL BEFORE THE CIT (A) AND ITAT IN RES PECT OF THIS GIFT OF RS. 1 LAKH. THE ITAT DIRECTED THE AO FOR THE RE ASSESSMENT IN RESPECT OF THIS GIFT OF RS 1 LAC. IN THE REA SSESSMENT THE AO ACCEPTED THE GENUINENESS OF THAT GIFT. HOWEVER, IN RESPECT OF THE BALANCE FOUR GIFTS OF RS. 4 LAKH, THE ADDITION WAS MADE UNDER SECTION 68 AGAINST WHICH THE ASSESSEE DID NOT FILE ANY APPEAL. THE AO THEREFORE ASKED THE ASSESSEE AS TO, WHY PENALTY BE NOT LEVIED. THE ASSESSEE REPLIED THAT ALL THE DONORS ARE GENUI NE AND ALL OF THEM ARE ASSESSED TO INCOME TAX. THEY FILED COPIES OF THE INCOME TAX RETURN AND CONFIRMATION AND THEREFORE THE GIFTS WERE GENUINE. THE ASSESSEE DID NOT FILE APPEAL IN ORDER TO BUY PE ACE OF MIND. THE AO DID NOT ACCEPT THIS EXPLANATION AND STATED THAT THE ASSESSEE WAS NOT ABLE TO PRODUCE THE DONORS. THE ASSESSEE WAS NO T ABLE TO GIVE DETAILS REGARDING GENUINENESS OF TRANSACTIONS. THE GIFTS WERE OBTAINED FROM CASH DEPOSITS. IN RESPECT OF NAROTAM GOYAL AND RAJNIKANT BHAVSAR THE LETTER WRITTEN TO THE PARTY W AS 'RETURNED' BY THE POSTAL WITH A REMARK 'LEFT'. IN RESPECT OF ALL THE FOUR PARTIES, THE INSPECTOR REPORTED THAT THE PARTY WAS NOT AVAIL ABLE ON THE ADDRESS GIVEN, THE ASSESSEE HAS ALSO NOT PROVIDED T HE LATEST ADDRESSES. IN THE BACKGROUND OF THIS, THE ADDITION WAS MADE, WHICH WAS ACCEPTED BY THE ASSESSEE. IN THE PENALTY ORDER OF THE AO HAS REBUTTED THE CASE-LAWS RELIED UPON BY THE ASSESSEE. HE THEREFORE LEVIED'-THE, PENALTY SAYING THAT THE ASSESSEE HAD F ILED INACCURATE PARTICULARS. I.T.A.NO. 526 /AHD/2011 3 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) AND THE FIRST CONTENTION BEFORE CIT(A) W AS THAT THE PENALTY ORDER IS TIME BARRED AS PER THE PROVISIONS OF SECTI ON 275(1)(C) AS PER WHICH, THE PENALTY ORDER SHOULD HAVE BEEN PASSED ON OR BEFORE 31.03.2009 BECAUSE THE ORDER PASSED BY THE LD. CIT( A) IN QUANTUM PROCEEDINGS ON 21.11.2007 BUT THE PENALTY ORDER HAS BEEN PASSED BY THE A.O. ON 09.03.2010 AND HENCE, THE SAME IS TIME BARR ED. LD. CIT(A) DECIDED THIS ISSUE AGAINST THE ASSESSEE AND HELD TH AT THE PENALTY ORDER IS NOT TIME BARRED. ON MERIT ALSO, LD. CIT(A) DISMISS ED THE PAELLA OF THE ASSESSEE AND NOW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US ON BOTH THESE ISSUES I.E. REGARDING THE ISSUE OF TIME LIMITATION AND MERIT OF THE PENALTY. 4. REGARDING THE TIME LIMITATION, IT WAS SUBMITTED BY THE ASSESSEE THAT OUT OF THE TOTAL ADDITION MADE BY THE A.O. OF RS.5 LACS, RS.4 LASS WAS DECLARED BY THE ASSESSEE AS EXPENDITURE AND IN ADDI TION TO THIS, THE A.O. MADE ADDITION OF RS.1 LAC. RECEIVED AS GIFT. IT IS FURTHER SUBMITTED THAT THE APPEAL FILED BY THE ASSESSEE IN THE QUANTUM PRO CEEDINGS BEFORE LD. CIT(A) WAS IN RESPECT OF THIS AMOUNT OF RS.1 LAC AD DITION ONLY AS CAN BE SEEN FROM THE ORDER OF LD. CIT(A) WHICH IS AVAILABL E ON PAGES 16-19 OF THE PAPER BOOK. IT IS FURTHER SUBMITTED THAT THE T RIBUNAL ORDER IN QUANTUM PROCEEDING IS ALSO AVAILABLE ON PAGE 30-34 OF THE P APER BOOK AND THE ISSUE INVOLVED WAS REGARDING ADDITION OF RS.1 LAC I N RESPECT OF GIFT OF RS.1 LAC FROM SHRI GORDHANDAS CHANDIRAM KRISHNANI A ND THE MATTER WAS RESTORED BACK TO THE FILE OF THE A.O. FOR A FRESH D ECISION. IT IS SUBMITTED THAT SUBSEQUENTLY, THE ASSESSMENT ORDER WAS PASSED BY THE A.O. ON 29.09.2009 U/S 143(3) READ WITH SECTION 254 OF THE INCOME TAX ACT, 1961. IT IS SUBMITTED THAT AT LEAST FOR THE ADDITION MADE BY THE A.O. ON ACCOUNT OF GIFT OF RS.4 LASS HAS ATTAINED FINALITY WHEN THE ORIGINAL ASSESSMENT ORDER WAS PASSED BECAUSE THIS ISSUE WAS NEVER RAISE D BY THE ASSESSEE I.T.A.NO. 526 /AHD/2011 4 BEFORE LD. CIT AND HENCE, PENALTY IN RESPECT OF THI S ADDITION OF RS.4 LACS SHOULD HAVE BEEN IMPOSED WITHIN THE TIME ALLOWED WH ICH SHOULD BE COUNTED FORM THE DATE OF THAT ASSESSMENT ORDER WHIC H IS DATED 22.12.2006 AND THE RELEVANT ORDER OF LD. CIT(A) IS DATED 21.11 .2007 AND, THEREFORE, THE PENALTY IS TIME BARRED ON 31.03.2009 BUT THE PE NALTY ORDER HAS BEEN PASSED BY THE A.O. ON 09.03.2010. ON THIS ASPECT, LD. D.R. SUPPORTED THE ORDER OF LD. CIT(A). AT THIS JUNCTURE, IT WAS POIN TED OUT BY THE BENCH THAT ON THIS ASPECT, THE JUDGEMENT OF MADRAS HIGH C OURT RENDERED IN THE CASE OF ROYALA CORPORATION AS REPORTED IN 288 ITR 4 52 IS ALSO RELEVANT AND AS PER THE SAME, THE TIME LIMIT HAS TO BE COUNT ED FORM THE ORDER OF THE TRIBUNAL AND NOT FROM THE DATE OF THE ORDER OF LD. CIT(A). IN REPLY, LD. A.R. HAS NOTHING TO SAY. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. THE JUDGMENT OF HONBLE MADRAS HIGH COURT RENDERED IN T HE CASE OF ROYALA CORPORATION (SUPRA), WE REPRODUCE THE PROVISIONS OF SCION 275(1A) AND THE PROVISO OF THE INCOME TAX ACT, 1961: 275. 80 [(1A) IN A CASE WHERE THE RELEVANT ASSESSMENT OR OT HER ORDER IS THE SUBJECT-MATTER OF AN APPEAL TO THE COMMISSIONER (APPEALS) UNDER SECTION 246 OR SECTION 246A OR AN APPEAL TO T HE APPELLATE TRIBUNAL UNDER SECTION 253 OR AN APPEAL TO THE HIGH COURT UNDER SECTION 260A OR AN APPEAL TO THE SUPREME COURT UNDE R SECTION 261 OR REVISION UNDER SECTION 263 OR SECTION 264 AND AN ORDER IMPOSING OR ENHANCING OR REDUCING OR CANCELLING PENALTY OR D ROPPING THE PROCEEDINGS FOR THE IMPOSITION OF PENALTY IS PASSED BEFORE THE ORDER OF THE COMMISSIONER (APPEALS) OR THE APPELLATE TRIB UNAL OR THE HIGH COURT OR THE SUPREME COURT IS RECEIVED BY THE CHIEF COMMISSIONER OR THE COMMISSIONER OR THE ORDER OF RE VISION UNDER SECTION 263 OR SECTION 264 IS PASSED, AN ORDER IMPO SING OR ENHANCING OR REDUCING OR CANCELLING PENALTY OR DROP PING THE PROCEEDINGS FOR THE IMPOSITION OF PENALTY MAY BE PA SSED ON THE BASIS OF ASSESSMENT AS REVISED BY GIVING EFFECT TO SUCH ORDER OF THE I.T.A.NO. 526 /AHD/2011 5 COMMISSIONER (APPEALS) OR, THE APPELLATE TRIBUNAL O R THE HIGH COURT, OR THE SUPREME COURT OR ORDER OF REVISION UN DER SECTION 263 OR SECTION 264: PROVIDED THAT NO ORDER OF IMPOSING OR ENHANCING OR REDUCING OR CANCELLING PENALTY OR DROPPING THE PROCEEDINGS FOR THE IMPOSITION OF PENALTY SHALL BE PASSED (A) UNLESS THE ASSESSEE HAS BEEN HEARD, OR HAS BEE N GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD; (B) AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE COMMISSIONER (APPEALS) OR TH E APPELLATE TRIBUNAL OR THE HIGH COURT OR THE SUPREME COURT IS RECEIVED BY THE CHIEF COMMISSIONER OR THE COMMISSIONER OR THE ORDER OF REVISION UNDER SECTION 263 OR SECTION 264 IS PASSED: PROVIDED FURTHER THAT THE PROVISIONS OF SUB-SECTION (2) OF SECTION 274 SHALL APPLY IN RESPECT OF THE ORDER IMPOSING OR ENHANCING OR REDUCING PENALTY UNDER THIS SUB-SECTION.] 6. FROM THE ABOVE PROVISIONS OF SECTION 275(1A) AND ITS PROVISO, WE FIND THAT THE PENALTY ORDER CAN BE PASSED WITHIN 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE TRIBUNAL HAS BE EN RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER. AS PER THE PRO VISO, THE PENALTY ORDER SHOULD BE PASSED WITHIN 1 YEAR FROM THE END O F THE FINANCIAL YEAR IN WHICH THE ORDER OF LD. CIT(A) IS RECEIVED BY THE CH IEF COMMISSIONER OR COMMISSIONER AND IN THOSE CASES WHERE SUCH ORDER IS PASSED BY THE CIT(A) ON OR AFTER 01.06.2003. FROM THE ABOVE, WE FIND THAT THE PROVISO IS APPLICABLE IN RESPECT OF THE ORDER PASSED BY LD. CIT(A) AND IN OUR CONSIDERED OPINION, THE PROVISO WILL NOT BE APPLICA BLE WHERE FURTHER APPEAL HAS BEEN FILED BEFORE THE TRIBUNAL . THIS VI EW WAS TAKEN BY THE HONBLE MADRAS HIGH COURT IN THE CASE OF ROYALA COR PORATION (SUPRA) AND HENCE, BY RESPECTFULLY FOLLOWING THIS JUDGMENT OF HONBLE MADRAS HIGH COURT, WE FEEL THAT THE PENALTY ORDER SHOULD H AVE BEEN PASSED BY THE A.O. IN THE PRESENT CASE WITHIN 6 MONTHS FROM THE D ATE OF RECEIPT OF THE I.T.A.NO. 526 /AHD/2011 6 TRIBUNAL ORDER IN QUANTUM PROCEEDINGS BUT SINCE AS PER THE TRIBUNAL ORDER, THE MATTER WAS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE A.O., PENALTY COULD NOT HAVE BEEN IMPOSED IN RESPECT OF T HIS TRIBUNAL ORD2ER WHICH WAS SET ASIDE BY HE TRIBUNAL AND, THEREFORE, THE PENALTY WAS REQUIRED TO BE REINITIATED IN THE ORDER PASSED BY T HE A.O. U/S 143(3) READ WITH SECTION 254 OF THE INCOME TAX ACT, 1961. THIS ORDER HAS BEEN PASSED BY THE A.O. ON 29.09.2009 AND THE PENALTY PR OCEEDINGS WERE INITIATED AS PER THE ASSESSMENT ORDER. THE PRESENT PENALTY ORDER HAS BEEN PASSED BY THE A.O. WITHIN THE SAME FINANCIAL YEAR I N WHICH THE ASSESSMENT ORDER WAS PASSED AND HENCE, IT CANNOT BE SAID TO BE TIME BARRED. 7. REGARDING THIS ARGUMENT OF THE ARE THAT THE MATT ER REGARDING ADDITION OF RS.4 LACS OUT OF THE TOTAL ADDITION OF RS.5 LACS HAS ATTAINED FINALITY ON THE PASSING OF THE ORIGINAL ASSESSMENT ORDER ON 22.12.2006, AND HENCE, AT LEAST TO THIS EXTENT ADDITION OFRS.4 LACS THE TIME LIMIT FOR IMPOSING PENALTY SHOULD BE COUNTED FORM THE DATE OF ORIGINAL ASSESSMENT ORDER, WE FEEL THAT PENALTY CANNOT BE IMPOSED IN P ART FIRST FOR RS.4 LACS ADDITION AND THEN FOR REMAINING ADDITION OF RS.1 LA CS FOR WHICH THE ASSESSEE WAS IN APPEAL. THEREFORE, ON THIS ASPECT, I.E. LIMITATION ASPECT WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT(A). 8. REGARDING MERIT, IT WAS SUBMITTED BY THE LD. A.R . THAT ADDITION OF RS.4 LACS WAS MADE ON THE BASIS OF SURRENDER BY THE ASSESSEE HIMSELF AND HENCE, PENALTY IS NOT JUSTIFIED. IT IS ALSO SUBMIT TED THAT THE DONORS WERE AFRAID TO APPEAR PERSONALLY BEFORE THE A.O. AND WER E RELUCTANT TO CERTIFY BEFORE THE DEPARTMENT AND SINCE DONORS WERE NOT COO PERATING IN THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS UNABLE TO PROVE THE GENUINENESS OF THE GIFTS AND FOR THIS REASON ASSESS EE HAS SURRENDERED THE GIFT AMOUNT OF RS.4 LACS AND PAID TAX ACCORDINGLY W ITH INTEREST AND, I.T.A.NO. 526 /AHD/2011 7 THEREFORE, PENALTY IS NOT JUSTIFIED WITH REGARD TO THIS ADDITION. IT IS SUBMITTED THAT REMAINING ONE GIFT WAS DULY ACCEPTED BY THE A.O. IN HIS ORDER PASSED U/S 143(3)/254 AND FOR THIS, NO PENALT Y HAS BEEN IMPOSED. RELIANCE WAS PLACED ON VARIOUS JUDGEMENTS WHICH ARE AS UNDER: (A) CIT VS VINAYHAND HARILAL 120 ITR 752 (GUJ.) (B) CIT VS NAVNITLAL POCHALAL 213 ITR 69 (GUJ.) (C) CIT VS JALARAM OIL MILLS 253 ITR 192 (GUJ.) (D) DCIT VS RAKESH KUMAR 157 TAXMAN MAGAZINE 71 (CH D.) (E) CITVS SURESH KUMAR MITTAL 241 ITR 124 (MP) (F) CIT VS PRAGATI COOP BANK LTD. 278 ITR 170 (GUJ .) (G) MURLIDHAR LAHORIML VS CIT 280 ITR 512 (GUJ.) (I) DCIT VS ROHINI BUILDERS 256 ITR 360 (GUJ.) (J) RAJENDRA KUMAR VS ITO 94 TTJ 280 (JODH.) 9. IN REPLY IT WAS SUBMITTED BY THE LD. D.R. THAT T HE SURRENDER IS AFTER INQUIRY U/S 133(6) AND HENCE, SURRENDER IS NOT VOLU NTARY AND HENCE, PENALTY IS RIGHTLY IMPOSED. HE SUPPORTED THE ORDER OF LD. CIT(A). 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGMENTS CITED BY THE LD. A.R. WE FIND THAT AS NO TED BY THE A.O. IN THE ASSESSMENT ORDER, THE SURRENDER IS NOT VOLUNTARY AN D WHEN THE ASSESSEE WAS CORNERED, HE HAD SURRENDERED THIS AMOUNT. WE A LSO FIND THAT IT IS NOTED BY THE A.O. IN THE ORIGINAL ASSESSMENT ORDER THAT DONORS WERE NOT AVAILABLE AT THE ADDRESS GIVEN BY THE ASSESSEE AND HENCE, HE ASKED THE ASSESSEE TO PRODUCE THESE DONORS FOR VERIFICATION. IN REPLY, THE ASSESSEE NEITHER PRODUCED THESE DONORS NOR FURNISHED THE COM PLETE POSTAL ADDRESSES THEREOF. THEIR REPLY WAS DEPOSITED IN TA PAL ON 20.10.2008 AND ON VERIFICATION OF THESE REPLIES, IT WAS NOTED BY T HE A.O. THAT ALL THE REPLIES ARE FURNISHED IN A SIMILAR FORMAT AND NO DE TAIL REGARDING GIFT AS WELL AS CAPITAL ALONG WITH SUBMISSIONS AS CALLED FO R VIDE LETTER CALLED FOR INFORMATION U/S 133(6). THESE FACTS GO TO SHOW TH AT NOT ONLY DONORS I.T.A.NO. 526 /AHD/2011 8 WERE NOT PRODUCED BUT ATTEMPT WAS MADE TO FURNISH R EPLY IN TAPAL TO COVER UP THE MATTER BUT WHEN THE A.O. WAS NOT SATISFIED W ITH THIS ALSO, THEN THE ASSESSEE MADE SURRENDER AND, THEREFORE, THIS ARGUME NT HAS NO MERIT THAT THE DONORS WERE NOT COOPERATING AND FOR THIS REASON , ASSESSEE HAS SURRENDERED AND OTHERWISE THE GIFTS ARE GENUINE. E VEN IF THE DONORS WERE AFRAID TO APPEAR PERSONALLY, THEY SHOULD HAVE GIVEN THE SUPPORTING DOCUMENTS SHOWING THEIR CREDITWORTHINESS AT LEAST. THE RELATIONSHIP BETWEEN THE DONOR AND DONEE AND THE OCCASION OF GIF T SHOULD HAVE BEEN BROUGHT ON RECORD BUT EVEN THIS WAS NOT DONE. 11. NOW, IN THE LIGHT OF THESE FACTS NOTED ABOVE, W E EXAMINE THE APPLICABILITY OF VARIOUS JUDGEMENTS CITED BY THE LD . A.R. WHICH ARE NOTED ABOVE:- - REGARDING THE JUDGMENT OF HONBLE GUJARAT HIGH CO URT RENDERED IN THE CASE OF ROHINI BUILDERS (SUPRA), WE FIND THAT T HIS JUDGMENT IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE IN THAT CASE , THE ASSESSEE HAS FURNISHED THE CONFIRMATION AND GIVEN GIR/PAN OF ALL THE DEPOSITORS. IN THE PRESENT CASE, ASSESSEE HAS NOT GIVEN THE COMPLE TE ADDRESS OF THE CONCERNED DONORS AND THE DONORS WERE NOT FOUND AT T HE ADDRESS PROVIDED BY THE ASSESSEE. THEIR GIR/PAN WERE ALSO NOT GIVEN AND HENCE, THIS JUDGMENT IS NOT APPLICABLE IN THE PRESENT CASE. - REGARDING THE 2 ND JUDGMENT OF HONBLE GUJARAT HIGH COURT CITED BY LD. A.R. HAVING BEEN RENDERED IN THE CASE OF MUR LILDHAR LOHARIMAL (SUPRA), WE FIND THAT HIS JUDGMENT IS ALSO NOT APPL ICABLE IN THE PRESENT CASE BECAUSE IN THAT CASE, THE DONORS APPEARED IN P ERSON BEFORE THE A.O. AND, THEREFORE, THE IDENTITY AS WELL AS GENUINENESS OF TRANSACTION WAS ESTABLISHED. IN THE PRESENT CASE, THE DONORS HAVE NOT APPEARED BEFORE THE A.O. AND, THEREFORE, THIS JUDGMENT IS ALSO NOT APPL ICABLE IN THE PRESENT CASE. I.T.A.NO. 526 /AHD/2011 9 - REGARDING THE 3 RD JUDGEMENT OF HONBLE GUJARAT HIGH COURT RELIED UPON BY THE LD. A.R. RENDERED IN THE CASE OF PRAGAT I COOPERATIVE BANK LTD. (SUPRA), WE FIND THAT THIS IS ALSO NOT APPLIC ABLE IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. IN THAT CASE, THE ASSESSEE BANK HAS PLACED ON RECORD AFFIDAVITS OF THE DEPOSITORS. IT IS FURT HER NOTED IN THAT CASE THAT IT WAS FOUND BY THE LD. CIT(A) THAT THE RECORDS REV EAL THAT THE A.O. HAD DEPUTED INSPECTOR FOR INSPECTION OF THE ABOVE AND T HE SAID PERSONS HAVE CONFIRMED THE FACT OF DEPOSITS. IN PRESENT CASE, D ONORS ARE NOT AVAILABLE AT THE ADDRESS GIVEN BY THE ASSESSEE AND THEIR GIR/ PAN IS ALSO NOT GIVEN AND HENCE, THIS JUDGEMENT IS ALSO OF NO HELP TO THE ASSESSEE. - REGARDING RELIANCE PLACED BY THE LD. A.R. ON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF JALARAM O IL MILLS (SUPRA), WE FIND THAT THIS DECISION IS ALSO NOT APPLICABLE IN T HE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. IN THAT CASE, IT HAS BEEN NOTED BY THE HONBLE GUJARAT HIGH COURT THAT IT HAS NOT BEEN ESTABLISHED BY THE REVENUE THAT THERE IS ACCRETION TO THE NET WEALTH OF THE ASSESSE E IN THE RELEVANT YEAR UNDER CONSIDERATION AND THERE IS NOTHING ON RECORD TO SHOW THAT WHAT WAS THE WEALTH OF THE ASSESSEE BEFORE THE COMMENCEMENT OF THE YEAR UNDER CONSIDERATION AND WHAT WAS THE ACCRETION TO THE NET WEALTH IN THE COURSE OF THAT PARTICULAR YEAR. BUT IN THE PRESENT CASE, IT IS ADMITTED POSITION THAT CASH OF RS.4 LACS WAS RECEIVED AND HENCE, THERE IS ACCRETION OF WEALTH AND THEREFORE, THIS JUDGMENT IS ALSO OF NO HELP TO THE ASSESSEE AS THE FACTS ARE DIFFERENT. - NOW, WE DISCUSS THE APPLICABILITY OF THE JUDGEMEN T OF HONBLE MP HIGH COURT CITED BY THE LD. A.R. RENDERED IN THE CA SE OF SURESH MITTAL (SUPRA). IN THAT CASE, MEAGER INCOME WAS DECLARED BY THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME AND WHEN REASSESSMENT PRO CEEDINGS WERE INITIATED BY THE DEPARTMENT, THE ASSESSEE FILED REV ISED RETURN SHOWING I.T.A.NO. 526 /AHD/2011 10 HIGHER INCOME AND THE REASSESSMENT ORDER WAS PASSED AND THE RETURN SUBMITTED BY THE ASSESSEE WAS REGULARIZED U/S 148. IN THAT CASE, IT IS NOTED BY THE HONBLE M P HIGH COURT THAT THERE MAY BE HUNDRED AND ONE REASONS FOR SUCH ADDITION BUT STILL THE REVENUE IS REQUIRED TO PROVE THE MENS REA. NOW, AFTER THE JUDGMENT OF HONBLE APEX C OURT RENDERED IN THE CASE OF DHARMENDRA TEXTILES, AS REPORTED IN 306 ITR 277 (S.C), IT IS NO MORE REQUIRED TO PROVE MENS REA AND HENCE, THIS JUD GMENT OF HONBLE M P HIGH COURT IS NOT APPLICABLE AFTER THIS JUDGMENT OF HONBLE APEX COURT. - NOW, WE DISCUSS THE APPLICABILITY OF ANOTHER DECI SION OF HONBLE GUJARAT HIGH COURT CITED BY THE LD. A.R. HAVING BEE N RENDERED IN THE CASE OF NAVNITLAL POCHALAL (SUPRA). THIS JUDGEMENT IS ALSO NOT APPLICABLE IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT . IN THAT CASE, DISPUTE WAS REGARDING SOURCE OF INVESTMENT IN MACHINERY AND THE ASSESSEE AGREED FOR INCLUSION OF THE AMOUNT IN HIS ASSESSMENT. UND ER THESE FACTS, IT WAS HELD BY THE HONBLE GUJARAT HIGH COURT THAT THE REV ENUE HAS TO DISCHARGE THE BURDEN OF PROVING THAT THE SAME REPRESENT CONCE ALED INCOME OF THE RELEVANT ACCOUNTING YEAR. IN THAT CASE, IT WAS NOT THE FACT ON RECORD THAT SUCH MACHINERY WERE PURCHASED IN THE RELEVANT YEAR ONLY. IN THAT CASE ALSO, DECISION IS ON THIS BASIS THAT THERE IS NO MA TERIAL ON RECORD TO PROVE THAT THE AMOUNT OF RS.40,000/- WAS THE INCOME OF TH E ASSESSEE AND THERE WAS ANY FAILURE OR NEGLIGENCE ON THE PART OF THE AS SESSEE. AFTER THIS JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CAS E OF DHARMENDER TEXTILE (SUPRA), IT IS NOW ADMITTED POSITION THAT P ENALTY IS CIVIL LIABILITY AND HENCE, IT IS NOT REQUIRED TO PROVE THAT THERE W AS ANY FAILURE OR NEGLIGENCE ON THE PART OF THE ASSESSEE AND HENCE, T HIS DECISION IS ALSO OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. I.T.A.NO. 526 /AHD/2011 11 - REGARDING ANOTHER JUDGMENT OF HONBLE GUJARAT HIG H COURT RENDERED IN THE CASE OF CIT VS VINAYCHAND HARILAL ( SUPRA), WE FIND THAT THIS JUDGMENT IS ALSO NOT APPLICABLE IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. IN THAT CASE, IT IS OBSERVED BY THE HONBLE GUJARAT HIGH COURT THAT THERE IS A DIFFERENCE BETWEEN THE WEALTH OF THE ASSESSEE AND HIS INCOME IN THE COURSE OF A PARTICULAR YEAR. IT HAS ALSO BEEN OBSERVED BY THE HONBLE GUJARAT HIGH COURT THAT BY VIRTUE OF UNEXPL AINED WEALTH U/S 69A IN THE ABSENCE OF SATISFACTORY EXPLANATION, DEEMING PROVISION IS ATTRACTED AND THE AMOUNT OF WEALTH IS DEEMED TO BE INCOME OF THE ASSESSEE FOR THAT PARTICULAR YEAR BUT IT COULD NOT BE SAID THAT FOR T HE PURPOSE OF PENALTY PROCEEDINGS, THIS HAD BEEN ESTABLISHED THAT AMOUNT OF RS.60,000/- IN THAT CASE WAS THE INCOME OF THE ASSESSEE. IN THE PRESEN T CASE, THE FACTS ARE DIFFERENT. IN THE PRESENT CASE, THE ASSESSEE HAS C LAIMED TO HAVE RECEIVEDRS.4 LACS AS FROM VARIOUS PERSONS AND THOSE PERSONS WERE NOT FOUND AT THE ADDRESSES PROVIDED BY THE ASSESSEE AND THEIR GIR/PAN WERE ALSO NOT FURNISHED. NOTHING HAS BEEN FURNISHED REGA RDING THE CREDITWORTHINESS AND RELATIONSHIP AND THE OCCASION OF THE GIFT AND WHEN THE ASSESSEE WAS CORNERED, HE HAS MADE THE SURRENDE R AND HENCE, THERE IS NO DISPUTE THAT THESE AMOUNTS WERE INCOME OF THE AS SESSEE IN THE PRESENT CASES. BECAUSE THE FACTS ARE DIFFERENT, THAT CASE IS NOT APPLICABLE IN THE PRESENT CASE. - REMAINING TWO TRIBUNAL DECISIONS CITED BY THE ASS ESSEE, WE FIND THAT THESE ARE ALSO NOT APPLICABLE IN THE PRESENT C ASE BECAUSE THE FACTS ARE DIFFERENT. MOREOVER, ONE DECISION RENDERED IN THE CASE OF RAJENDRA KUMAR VS ITO AS REPORTED IN 94 TTJ 290 IS OF SMC BE NCH AND HENCE, NOT BINDING ON DIVISION BENCH. 12. WE FIND THAT IN THE FACTS OF THE PRESENT CASE, AS NOTED ABOVE, NONE OF THESE JUDGMENTS IS APPLICABLE IN THE PRESENT CAS E BECAUSE THE FACTS ARE I.T.A.NO. 526 /AHD/2011 12 DIFFERENT AND HENCE, THE ASSESSEE DOES NOT GET ANY HELP FROM THESE JUDGMENTS. 13. IN VIEW OF THE ABOVE DISCUSSION, WE FIND THAT T HIS IS A CLEAR CASE OF CONCEALMENT OF INCOME INTRODUCING THE SAME AS GIFT AND HENCE, THE PENALTY IS JUSTIFIED AND WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT(A). 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. 15. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (D.K.TYAGI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 19/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20/12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.22/12 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 22/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.22/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23/12/2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..