NEETA G. KARIA, MUMBAI V. ITO 23(3)(1), MUMBAI

ITA 6361/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8485 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 23-12-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 17-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: J K SHAH
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI R.C.SHARMA (AM) AND SHRI RAM LAL NEGI (JM ) ITA NO. 6361/MUM/2012 ASSESSMENT YEAR: 2005-2006 SMT. NEETA G. KARIA. 3, VASUDHA, B.P.S. ROAD, MULUND (W), MUMBAI-400 080. PAN: ADOPK3848H VS. THE ITO - 23 (3) (1), B.K.C. BANDRA (E), MUMBAI- 400051 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI J.K. SHAH RESPONDENT BY : SHRI. RAJESH KUMAR YADAV DATE OF HEARING: 1 3/01/2017 DATE OF PRONOUNCEMENT: 31/01/20 17 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 11/09/2012 PASSED BY THE LD. CIT(APPEALS)-34, MUMBA I, FOR THE ASSESSMENT YEAR 2005-06, WHEREBY THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER DATED 18/06/2009 PAS SED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE AN INDIVIDUAL, FILED HER RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR DECLARIN G THE TOTAL INCOME OF RS. 1,73,754/-. DURING THE COURSE OF SCRUTINY PROCEEDIN GS U/S 143(3), THE A.O MADE AN ADDITION OF RS. 13,50,000/- U/S 68 OF THE A CT, REJECTING THE CONTENTION OF THE ASSESSEE THAT THE SAID AMOUNT HAD BEEN RECEI VED BY WAY OF GIFTS PENALTY 2 ITA NO. 6361/MUM/2012 ASSESSMENT YEAR: 2005-06 PROCEEDINGS U/S 274 R.W.S. 271(1)(C) WAS ORDERED T O BE INITIATED. DURING THE APPELLATE PROCEEDINGS THE APPELLANT FAILED TO PROVE GENUINENESS OF THE TRANSACTION AND COULD NOT CONTROVERT THE FINDINGS G IVEN BY THE A.O IN THE SCRUTINY ASSESSMENT, THEREFORE THE LD. CIT(A) DISMI SSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ADDITION . ACCORDINGLY, THE A.O LEVIED PENALTY OF RS. 91,330/-. I.E. 200% OF THE INCOME SOUGHT TO BE EVAD ED BY THE ASSESSEE. IN APPEAL THE LD. CIT(A) CONFIRMED THE PENALTY. 3. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFO RE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT (A) HAS ERRED IN DISMISSING THE APP EAL. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT (A) ERRED IN DISMISSING THE APPEAL WITHOUT APPRECIATING THE EVIDENCES AS PUT FORTH. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) GROSSLY ERRED IN CONFIRMING THE GIF TS AS NON GENUINE INSPITE OF ALL THE EVIDENCES PUT FORTH PROVIDING TH E IDENTITY AND CAPABILITY OF THE DONOR AND THAT NO GROUND OF REJEC TION OF EVIDENCE BEING CITED. 4. WITHOUT GOING TO THE MERITS OF THE CASE, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A SENIOR CITIZEN AND THE PENALTY @ 200% MAY BE REDUCED TO 100% OF THE INCOME EVADED BY THE ASSESSE E. 3 ITA NO. 6361/MUM/2012 ASSESSMENT YEAR: 2005-06 5. ON THE OTHER HAND THE LD. DR RELYING ON THE CONC URRENT FINDINGS OF THE AUTHORITIES BELOW SUBMITTED THAT THERE IS NO SCOPE FOR FURTHER INTERFERENCE IN THE ORDER OF THE LD. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GON E THROUGH THE MATERIAL PLACED ON RECORD IN THE LIGHT OF THE FACTS AND CIRC UMSTANCES OF THE CASE. AS PER THE PROVISIONS OF SECTION 271(1)(C)(III) THE ASSESS EE MAY BE DIRECTED TO PAY BY WAY OF PENALTY A SUM WHICH SHALL NOT BE LESS THAN T HE AMOUNT BUT SHALL NOT EXCEED THREE TIMES OF TAX SOUGHT TO BE EVADED BY CO NCEALMENT INCOME OR BY FURNISHING INACCURATE PARTICULARS THEREOF. HENCE, THE AO HAS DISCRETION TO IMPOSE PENALTY FROM 100% TO 300% OF THE AMOUNT OF T AX SOUGHT TO BE EVADED BY THE ASSESSEE. HOWEVER, KEEPING IN VIEW THE SUBMI SSIONS MADE BY THE LD. COUNSEL AND OLD AGE OF THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT 100% PENALTY ON THE AMOUNT EVADED IS REASONABLE TO MEET THE ENDS OF JUSTICE. WE THEREFORE, MODIFY THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND REDUCE THE PENALTY OF 200% CONFIRMED BY THE LD. CIT(A) TO 100% IN THE INTEREST OF JUSTICE. THE APPEAL IS DISPOSED OF ACCORDINGLY. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FO R ASSESSMENT YEAR 2005- 2006 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COUR T 31 ST JANUARY, 2017. SD/- SD/- ( R.C.SHARMA ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 31/01/2017 4 ITA NO. 6361/MUM/2012 ASSESSMENT YEAR: 2005-06 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA