Smt. Megha Jain, New Delhi V. ITO, New Delhi

ITA 5435/DEL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69258 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-08-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 26-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS RENUKA JAIN GU PTA
• Assessee Lawyers: P K MISHRA
• Keywords: Gift; Wrong claim
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC : NEW DELHI BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER ITA NO. 5435/DEL/2012 ASSESSMENT YEAR: 2006- 2007 M/S. MEGHA JAIN. VS. ITO 722-B, KATRA HARDAYAL, WARD 29(4), CHANDANI CHOWK, NEW DELHI 110 006 (PAN AETPJ2508R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.K. MISHRA , CA RESPONDENT BY : MRS. RENUKA JAIN GUPTA, SR. DR ORDER PER I.C. SUDHIR, JUDICIAL MEMBER THE ASSESSEE HAS QUESTIONED LEVY OF PENAL TY U/S 271(1)(C) OF THE ACT AT RS. 48,413/- UPHELD BY THE LD. CIT(A). 2. HEARD AND CONSIDERED THE ARGUMENTS ADVANC ED BY THE PARTIES IN VIEW OF ORDERS OF THE AUTHORITIES BELOW, MATERIAL AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON. 3. THE AO LEVIED PENALTY OF RS. 72,706/- U/S 271(1)(C) OF THE ACT ON THE BASIS THAT THE ASSESSEE COULD NOT FURNISH ANY SATIS FACTORY EXPLANATION FOR THE ITA NO.5435/DEL/2012 2 CLAIMED GIFT OF RS. 2,00,000/- WHICH WAS NOT FOUND GENUINE AND WAS ADDED U/S 68 OF THE ACT AS AN ACCOMMODATION ENTRY. THE LD. CI T(A) HAS UPHELD THE SAME FURTHER ON THE BASIS THAT THE ASSESSEE DID NOT MAIN TAIN PROPER BOOKS OF ACCOUNTS AND DID NOT DECLARE FULL AND TRUE INCOME. 4. THE CONTENTION OF THE LD. AR REMAINED THA T ASSESSEE HAS RECEIVED A GENUINE GIFTS BUT THE SAME COULD NOT BE PROVED BEFO RE THE AO AND WITHOUT APPRECIATING THIS FACT OF THE MATTER PENALTY IN QUE STION HAS BEEN LEVIED AND UPHELD BY THE AUTHORITIES BELOW. THE LD. AR REFERRE D PAGE NOS. B(1) TO B (14) OF THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. THE SE ARE COPIES OF ACKNOWLEDGEMENT OF RETURN OF INCOME FOR THE ASSESSM ENT YEAR UNDER CONSIDERATION ALONGWITH COMPUTATION AND BALANCE SHE ET, BANK STATEMENT ALONGWITH COPY OF LEDGER OF MEGHA JAIN WITH KARNATA KA BANK, GIFT DEED EXECUTED BY THE DONOR, GIFT CHEQUE FROM THE DONOR, AFFIDAVIT FROM THE DONOR, INCOME TAX RETURN ACKNOWLEDGEMENT OF SMT. SHANTI DEVI FOR ASST T. YEAR 2002-03 AND HER NET WEALTH STATEMENT FOR THE SAME YEAR AND HER BALANCE SHEET AS ON 31.3.2002 ETC.. HE ALSO PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS (P) LTD. (2010) 322 ITR 158 (SC). 5. LD. DR ON THE OTHER HAND TRIED TO JUS TIFY THE ORDERS OF THE AUTHORITIES BELOW WITH THIS SUBMISSION THAT RATIO LAID DOWN IN THE ABOVE CITED DECISION OF RELIANCE PETRO PRODUCTS (SUPRA) DOES NOT APPLY IN T HE PRESENT CASE OF THE ITA NO.5435/DEL/2012 3 ASSESSEE AS THERE IS NO QUESTION OF INTERPRETATION OF LAW INVOLVED IN THE PRESENT CASE, RATHER IT IS A CLEAR CASE OF AVOIDANCE OF PAY MENT OF TAX BY MAKING A WRONG CLAIM WHICH ON VERIFICATION WAS NOT FOUND GENUINE. 6. CONSIDERING ABOVE SUBMISSION I FIND THA T IT IS NOT A CLEAR CASE TO HOLD BEYOND DOUBT THAT THERE WAS CONCEALMENT OF PARTICUL ARS OF INCOME OR FURNISHING INACCURATE PARTICULARS THEREOF REGARDING THE CLAIME D GIFT BY THE ASSESSEE SINCE THE CLAIMED GIFT WAS DENIED BY THE AO AND UPHELD BY THE APPELLATE AUTHORITIES ON THE BASIS THAT THE DONOR WAS NOT RELATED TO THE ASS ESSEE AND CHEQUE IN QUESTION FOR THE CLAIMED GIFT WAS APPEARED TO BE ISSUED ONLY AFTER DEPOSITING OF AMOUNT IN THE ACCOUNT OF THE DONOR IMMEDIATELY BEFORE THE ISS UANCE OF THE CHEQUE. IT IS AN ESTABLISHED PROPOSITION OF LAW THAT PENAL ACTION U/ S 271 (1)(C) IS TAKEN WITH FULL PRECAUTION ONLY AFTER FINDING BEYOND DOUBT THAT THE RE WAS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PART ICULARS THEREOF ON THE PART OF THE ASSESSEE TOWARDS THE CLAIMED GIFT AS PRIMARILY REQUIRED IN THE SAID PROVISIONS OF THE ACT. I THUS HOLD THAT IT MAY BE A GOOD CASE OF REVENUE TO JUSTIFY THE ADDITION OF THE CLAIMED GIFT BUT NOT FOR THE APPLIC ATION OF THE REAL PENAL PROVISION IN ABSENCE OF CLEAR FINDING BEYOND DOUBT THAT THERE WAS CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PART ICULARS THEREOF ON THE PART OF THE ASSESSEE BY CLAIMING THE SAID GIFT GENUINENESS OF WHICH WAS DOUBTED. I THUS WHILE SETTING ASIDE ORDERS OF THE AUTHORITIES BELOW IN THIS REGARD DIRECT THE AO TO DELETE THE PENALTY OF RS. 48,413/- SUSTAINED BY LD. CIT(A). THE GROUND ITA NO.5435/DEL/2012 4 IS ACCORDINGLY ALLOWED . 7. IN THE RESULT APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST, 2013. SD/- ( I.C. SUDHIR ) JUDICIAL ME MBER DATE : 30 TH AUGUST, 2013 *VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER DEPUTY REGISTRAR, ITAT