DCIT,Cent Cir-XXI,KOL, Kolkata V. Shri Krishan Goyal, Kolkata

ITA 635/KOL/2009

• Counselvise Citation: 63523514 RSA 2009
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-05-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 23-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SHAI SANJAY KUMAR
• Assessee Lawyers: A K TIBREWAL
• Keywords: Gift
• Section: 132; 2; 139

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA ( ) . . , , , , ) [BEFORE HONBLE SRI B.R. MITTAL, J.M. & HONBLE SRI AKBER BASHA, A.M.] ! ! ! ! / I.T.A NO. 635/KOL/2009 '# $% / ASSESSMENT YEAR : 2004-2005 DEPUTY COMMISSIONER OF INCOME TAX TAX, -VS.- SHRI KRISHAN GOYAL, KOLKATA CENTRAL CIRCLE-XXI, KOLKATA (PAN : ACSPA 8 556 H) ( &' /APPELLANT ) ( ()&' / RESPONDENT ) FOR THE APPELLANT : DR. SHAI SANJAY KUMAR, D.R. FOR THE RESPONDENT : SHRI A.K. TIBREWAL, A.R. / ORDER PER SHRI B. R. MITTAL, JUDICIAL MEMBER/ . . , : THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSMEN T YEAR 2004-05 AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-I I, KOLKATA DATED 27.01.2009 DISPUTING CANCELLATION OF PENALTY OF RS.3,14,082/- LEVIED UND ER SECTION 271(1)(C) OF THE ACT. 2. THE RELEVANT FACTS GIVING RISE TO THIS APPEAL AR E THAT THE ASSESSEE FILED THE ORIGINAL RETURN UNDER SECTION 139 OF THE INCOME TAX ACT ON 31.10.20 04 DECLARING TOTAL INCOME OF RS.1,39,860/- . SUBSEQUENTLY, THERE WAS A SEARCH UNDER SECTION 13 2 OF THE INCOME TAX ACT AT RESIDENTIAL AND BUSINESS PREMISES OF GOYAL GROUP ON 18.01.2006. PUR SUANT THERETO, THE ASSESSEE FILED THE RETURN ON 26.03.2007 DECLARING THE INCOME OF RS.1,3 9,860/-, THE INCOME AS DECLARED IN THE ORIGINAL RETURN. DURING THE COURSE OF ASSESSMENT PR OCEEDINGS, THE ASSESSING OFFICER HAS STATED THAT IT WAS FOUND THAT THE ASSESSEE RECEIVED GIFT O F RS.10,00,000/- DURING THE ASSESSMENT YEAR UNDER CONSIDERATION AND WHEN THE ASSESSEE WAS ASKED TO FILE THE DETAILS, THE ASSESSEE OFFERED THE SAID AMOUNT OF RS.10,00,000/- TO TAX. THE ASSESSING OFFICER HAS STATED THE CONTENTS OF THE SAID LETTER OF THE ASSESSEE AT PAGE 4 OF THE ASSESSMENT ORDER DATED 31.12.2007 PASSED UNDER SECTION 153A/143(3) OF THE ACT AS UNDER :- WITH RESPECT TO THE ABOVE, I WOULD LIKE TO SUBMIT THAT I HAVE FILED MY RETURNS UNDER SECTION 153A/139 OF THE I.T. ACT. AT THE TIME OF FILING SUCH RETURNS AUDITED ACCOUNTS WERE PREPARED AND FILED. I HAD RECEIVED GIFTS ITA NO. 635/KOL./2009 2 FROM VARIOUS PARTIES DURING FY 2003-2004. THE TOTAL OF SUCH GIFTS AMOUNT TO RS.10,00,000/-. AN AMOUNT OF RS.1,00,000/- WAS R ECEIVED FROM MR. JANKI LAL MARWARI, RS.1,00,000/- WAS RECEIVED FROM MR. BISHNU KUMAR PANDERIWAL (EXPIRED ON 24/11/2004), RS.2,00,000/- W AS RECEIVED FROM MR. GIRDHARI LAL MAHESWARI, RS.2,00,000/- WAS RECEIVED FROM MR. SANTOSH KUMAR PANDERIWAL, RS.2,00,000/- WAS RECEIVED FROM M R. KAMLESHWAR PRASAD KESHRI, AND AN AMOUNT OF RS.2,00,000/- WAS R ECEIVED FROM MR. CHUNILAL BAGRI. IN THIS REGARD, I HAVE ALREADY FILE D COPIES OF GIFT DEEDS. I HAVE ALSO FILED COPIES OF THEIR IT ACKNOWLEDGMENTS EVIDENCING THE GENUINENESS OF SUCH PEOPLE AND SUCH TRANSACTIONS. IN ORDER TO AVOID ANY SORT OF LONG DRAWN LITIGATION WITH THE DEPARTMENT A ND IN ORDER TO BUY PEACE OF MIND, I AM HEREBY SUO MOTO OFFERING SUCH A MOUNT OF RS.10,00,000/- TO TAX IN AY 2004-2005. I AM ENCLOSI NG HEREWITH THE REVISED COMPUTATION OF MY TOTAL INCOME FOR AY 2004- 2005. I SHALL MAKE THE NECESSARY PAYMENT OF TAX IN DUE COURSE OF TIME. I UNDERSTAND THAT FOR THIS ACT OF MIND, I SHALL NOT BE PENALIZED IN ANY M ANNER. IN VIEW OF THE ABOVE, THE ASSESSING OFFICER INITIA TED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AND LEVIED PENALTY OF RS.3,14, 082 CONSIDERING THAT THE SAID GIFTS WERE CONCEALED INCOME OF THE ASSESSEE. 3. IN THE FIRST APPEAL, THE LD. CIT(APPEALS) CANCEL LED THE PENALTY BY OBSERVING THAT THE ASSESSEE RECEIVED CERTAIN GIFTS FROM DONORS, WHOSE IDENTITIES COULD BE ESTABLISHED BY DOCUMENTARY EVIDENCE. THAT THE EXISTENCE OF GIFT DE ED WAS NOT DOUBTED AND THE ASSESSEE WAS PERSUADED TO OFFER THE AMOUNT OF GIFT AS HIS INCOME ONLY ON ACCOUNT OF HIS DESIRE TO PUT AN END TO THE LITIGATION. THE LD. CIT(APPEALS) HAS FURTHER STATED THAT THERE IS NO MATERIAL DETECTED IN THE COURSE OF SEARCH WHICH COULD BE TREATED AS CLINCHIN G EVIDENCE OF CONCEALMENT OF INCOME. SINCE LD. CIT(APPEALS) CANCELLED THE PENALTY, DEPARTMENT HAS FILED THIS APPEAL BEFORE THE TRIBUNAL. 4. DURING THE COURSE OF HEARING, LD. D.R. SUBMITTED THAT THE ASSESSEE DISCLOSED THE GIFTS ONLY DURING THE COURSE OF ASSESSMENT PROCEEDINGS WH EN THE ASSESSEE WAS CONFRONTED. HE SUBMITTED THAT THE ASSESSEE FILED INACCURATE PARTIC ULARS OF INCOME BY NOT DISCLOSING THE GIFTS IN THE RETURN AND OFFERED IT FOR TAXATION ONLY TO AVOI D FURTHER EXAMINATION BY THE ASSESSING OFFICER. HE SUBMITTED THAT THE ASSESSING OFFICER HA S RIGHTLY LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT IN RESPECT OF THE ALLEGED GIFT OF RS.10,00,000/-, WHICH WAS SURRENDERED BY THE ASSESSEE AT THE TIME OF ASSESSMENT PROCEEDINGS TO TAX. ITA NO. 635/KOL./2009 3 5. ON THE OTHER HAND, LD. A.R. SUBMITTED THAT THE A SSESSEE IN THE RETURN FILED DISCLOSED THE RECEIPT OF GIFTS OF RS.10,00,000/-. THE LD. A.R. RE FERRED TO PAGE 67 OF THE PAPER BOOK, WHICH IS A COPY OF BALANCE-SHEET AS ON 31.03.2004 AND SUBMITTE D THAT THE ASSESSEE DISCLOSED THE GIFT OF RS.10,00,000/- RECEIVED BY HIM IN THE ASSESSMENT YE AR UNDER CONSIDERATION EVEN WHILE FILING THE ORIGINAL RETURN UNDER SECTION 139 OF THE ACT. H E SUBMITTED THAT THE ASSESSEE ALSO FILED AFFIDAVITS FROM THE DONORS AND THE ASSESSING OFFICE R DID NOT QUESTION THE SAME. HE SUBMITTED THAT AT THE TIME OF ASSESSMENT PROCEEDINGS, WHICH H AD TAKEN PLACE SUBSEQUENT TO THE SEARCH UNDER SECTION 132 OF THE ACT, THE ASSESSEE OFFERED THE SAME TO TAX TO AVOID LITIGATION AND TO BUY PEACE OF MIND. THE LD. A.R. SUBMITTED THAT NO FACTS HAVE BEEN BROUGHT ON RECORD BY THE DEPARTMENT THAT THE SAID GIFTS WERE BOGUS. HE SUBMI TTED THAT THE ASSESSEE ALSO FILED THE COPIES OF THE AFFIDAVITS AND ALL THE DONORS WERE ASSESSED TO TAX. THE LD. A.R. FURTHER SUBMITTED THAT THE SAID GIFTS WERE RECEIVED BY ACCOUNT PAYEE CHEQUES. THE LD. A.R. REFERRED PAGE 6 OF THE PAPER BOOK, WHICH CONTAINS THE P.A. NOS. OF THE DONORS AN D ALSO REFERRED PAGES 7, 9, 11, 13, 15 AND 17 OF THE PAPER BOOK AND SUBMITTED THAT THESE ARE COPI ES OF THE AFFIDAVITS OF THE DONORS CONFIRMING THE GIFTS MADE BY EACH OF THEM TO THE ASSESSEE. LD. A.R. SUBMITTED THAT IN THE ABSENCE OF ANY EVIDENCE ON RECORD THAT THE GIFTS WERE NOT GENUINE, THE CONCLUSION OF THE ASSESSING OFFICER THAT THE GIFTS WERE BOGUS IS ON SURMISES AND CONJECTURES . LD. A.R. SUBMITTED THAT SIMILAR ISSUE IN THE GROUP OF THE ASSESSEE ALSO CAME UP BEFORE THE TRIBU NAL ON IDENTICAL FACTS IN I.T.A. NO. 236/KOL./2010 IN THE CASE OF DCIT VS.- SRI ROHIT G OYAL AND THE TRIBUNAL VIDE ITS ORDER DATED 18.06.2010 CONFIRMED THE ORDER OF LD. CIT(APPEALS) TO CANCEL THE PENALTY IMPOSED BY THE ASSESSING OFFICER. TO SUBSTANTIATE HIS SUBMISSION, HE FILED A COPY OF THE SAID ORDER DATED 18.06.2010. THE LD. A.R. FURTHER SUBMITTED THAT THE SIMILAR ISSUE HAS ALSO BEEN CONSIDERED BY ITAT, DELHI (THIRD MEMBER) IN THE CASE OF ADDL. CIT VS.- PREM CHAND GARG (2009) 31 SOT 97 (THIRD MEMBER). LD. A.R. SUBMITTED THAT THE ORDE R OF THE LD. CIT(APPEALS) SHOULD BE CONFIRMED BY DISMISSING THE APPEAL OF THE ASSESSEE. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. REPRESENTATIVES OF THE PARTIES AND THE ORDERS OF THE AUTHORITIES BELOW. 7. ON PERUSAL OF PAGE 67 OF THE PAPER BOOK, WHICH I S A COPY OF BALANCE-SHEET AS ON 31.03.2004, WE OBSERVE THAT THE ASSESSEE HAS SPECIF ICALLY DECLARED OF RECEIPT OF GIFTS IN THE ASSESSMENT YEAR UNDER CONSIDERATION OF RS.10,00,000 /-. IT IS ALSO SPECIFICALLY STATED THAT THE SAID ITA NO. 635/KOL./2009 4 GIFTS IS AS PER AFFIDAVIT. ON PERUSAL OF PAGE 6 O F THE PAPER BOOK, WE OBSERVE THAT THE ASSESSEE HAS GIVEN THE NAME, AMOUNT AND THE PAN OF THE RESPE CTIVE DONORS. FURTHER, WE ALSO OBSERVE ON PERUSAL OF PAGES 7, 9, 11, 13, 15 AND 17 THAT THERE ARE AFFIDAVITS FROM THE RESPECTIVE DONORS AFFIRMING OF GIVING GIFTS TO THE ASSESSEE BY ACCOUN T PAYEE CHEQUES, THE DETAILS OF CHEQUES ARE ALSO MENTIONED THEREIN AND ALSO STATING BY EACH OF THEM THEIR PAN. THE AFORESAID DOCUMENTS, PRIMA FACIE, ESTABLISH THAT THE ASSESSEE BY FILING THE RETURNS OF INCOME HAD DISCLOSED THE RECEIPT OF GIFTS OF RS.10,00,000/-. WE OBSERVE THAT AT THE TIME OF ASSESSMENT PROCEEDINGS, WHEN THE ASSESSING OFFICER WANTED TO EXAMINE THE GENUINENESS OF THE GIFT, THE ASSESSEE OFFERED THE SAID AMOUNT TO TAX AND STATED THAT HE WANTED TO BUY PEAC E OF MIND AND AVOID LONG DRAWN LITIGATION. WE OBSERVE THAT THE ASSESSING OFFICER DID NOT MAKE FURTHER INQUIRY TO ASCERTAIN AS TO WHETHER THE SAID GIFTS ARE GENUINE OR NOT BUT ACCEPTED THE SAME AS INCOME OF THE ASSESSEE. CONSIDERING THE ABOVE FACTS, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO FINDING BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS CONCEALED HIS INCOME OR FURNI SHED INACCURATE PARTICULARS OF INCOME IN THE GUISE OF THE ABOVE GIFTS AGGREGATING RS.10,00,000/- . WE OBSERVE THAT ITAT, DELHI (THIRD MEMBER) IN THE CASE OF PREM CHAND GARG (SUPRA) HAS HELD THAT MERE OMISSION OF SURRENDERED INCOME FROM RETURN OF AN ITEM OF RECEIPT AMOUNTS TO NEITHER CONCEALMENT NOR FURNISHING OF INACCURATE PARTICULARS OF INCOME, UNLESS AND UNTIL THERE IS SOME EVIDENCE TO SHOW OR SOME CIRCUMSTANCES ARE FOUND FROM WHICH IT CAN BE GATHER ED THAT OMISSION WAS ATTRIBUTABLE TO AN INTENTION OR A DESIRE ON THE PART OF THE ASSESSEE T O HIDE OR CONCEAL INCOME SO AS TO AVOID IMPOSITION OF TAX THEREON. IT IS A FACT THAT THE AS SESSING OFFICER HAS NOT GIVEN ANY FINDING TO COME TO THE CONCLUSION THAT THE GIFTS WERE NOT GENU INE TO TREAT THE SAME AS UNDISCLOSED INCOME OF THE ASSESSEE AND TO LEVY PENALTY UNDER SECTION 2 71(1)(C) OF THE ACT. IT IS TRUE THAT THE ASSESSMENTS CANNOT BE MADE BY BARGAINING AND THE AS SESSING OFFICER IS WITHIN HIS RIGHT TO CONSIDER THE WHOLE ISSUE AS PER LAW FOR INITIATION AND LEVY OF THE PENALTY BUT THE SURRENDER OF AMOUNT COULD NOT LEAD TO AN INFERENCE THAT IT WAS N OT VOLUNTARY IN ABSENCE OF ANY MATERIAL ON RECORD AND SUGGESTING IT TO BE BOGUS OR UNTRUE. IN THE CASE BEFORE US, THE DEPARTMENT HAS NOT DISPUTED THE FACT THAT THE ASSESSEE DISCLOSED THE G IFTS AGGREGATING RS.10,00,000/- IN THE RETURN FILED ORIGINALLY UNDER SECTION 139(1) OF THE ACT, I .E. MUCH BEFORE THE SEARCH HAD TAKEN PLACE AND ACCOMPANYING IT TO BE SAID COMPUTATION OF INCOME TH E AFFIDAVITS FROM THE DONORS OF GIVING GIFTS TO THE ASSESSEE, THE DETAILS OF WHICH ARE MENTIONED HEREINABOVE. IN VIEW OF THE ABOVE, WE HOLD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED TO LEV Y PENALTY ON THE BASIS OF THE SURRENDER MADE BY THE ASSESSEE WITHOUT FURTHER GOING INTO THE DETA ILS OF THE GIFTS AND TO GIVE A SPECIFIC FINDING ITA NO. 635/KOL./2009 5 THAT THE GIFTS WERE INGENUINE. HENCE, WE HOLD THAT THERE IS NO INFIRMITY IN THE ORDER OF LD. CIT(APPEALS) TO CANCEL THE PENALTY. 8. BEFORE WE PART WITH, WE OBSERVE THAT SIMILAR ISS UE ON IDENTICAL FACTS HAD ALSO BEEN CONSIDERED BY ITAT, KOLKATA BENCH IN THE APPEAL FIL ED BY THE DEPARTMENT AGAINST THE ORDER OF LD. CIT(APPEALS) BEING I.T.A. NO. 236/KOL./2010 VID E ITS ORDER DATED 18.06.2010 (SUPRA) AND THE TRIBUNAL UPHELD THE ORDER OF THE LD. CIT(APPEAL S) BY DISMISSING THE APPEAL OF THE DEPARTMENT. 9. IN VIEW OF THE ABOVE, WE UPHOLD THE ORDER OF THE LD. CIT(APPEALS) BY REJECTING THE GROUND OF APPEAL TAKEN BY THE DEPARTMENT. 10 IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.05.2011 IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH THE PARTIES. SD/- SD/- [AKBER BASHA/ ] [ B.R. MITTAL / . . ] ACCOUNTANT MEMBER/ JUDICIAL MEMBER/ DATED : 05/ 05/ 2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI KRISHAN GOYAL, 8, CAMAC STREET, ROOM NO. 8, 6 TH FLOOR, KOLKATA-25, 2 DCIT, CENTRAL CIRCLE-XXI, KOLKATA, 18, RABINDRA SAR ANI, KOLKATA-1, 3. CIT(A)- ,KOLKATA 4. CIT, KOLKATA- 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSIS TANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.