ITO 24(3)(4), MUMBAI V. RAJENDRA S. KASKARA, MUMBAI

ITA 6375/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84410 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 02-12-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 16-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Gift

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BE NCH, MUMBAI , !' #$% , !& ! ' BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./I .T.A. NO. 6375/MUM/2011 ( ( ( ( ( / ASSESSMENT YEAR : 2003-04 THE ITO-24(3)-4, C-11, PRATYAKSH KAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI-400 051 / VS. SHRI RAJENDRA MASKARA, A-8, ROOM NO. 18, MAHESH NAGAR, S.V. ROAD, GOREGAON (W), MUMBAI-400 062 ) !& ./ * ./ PAN/GIR NO. : AABPM 3036M ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . ! / APPELLANT BY: SHRI LOVE KUMAR ,-)+ / . ! / RESPONDENT BY: SHRI M. SUBRAMANIAN / 0& / DATE OF HEARING :02.12.2014 12( / 0& / DATE OF PRONOUNCEMENT : 5.12.2014 !3 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)-34, MUMBAI DT.7.7.2011 PERTAINING TO A.Y.200 3-04. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) ERRED IN DELETING THE PENALTY IMPOSED U/S. 271(1)(C) OF THE ACT AMOUNTING TO RS. 4,56,326/-. ITA NO. 6375/M/2011 2 3. THE ROOT FOR THE LEVY OF PENALTY LIE IN THE ASS ESSMENT ORDER DT. 14.2.2006, WHEREIN DURING THE COURSE OF THE ASSESSM ENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE IS HAVI NG SAVINGS BANK ACCOUNT WITH SYNDICATE BANK, MALAD (W), MUMBAI WHIC H WAS NOT DISCLOSED IN THE STATEMENT ENCLOSED WITH THE RETURN . THE AO FURTHER NOTICED THAT THE ASSESSEE HAS DEPOSITED RS. 9,16,00 0/- IN CASH AND RS. 6,10,000/- BY CHEQUE. THE ASSESSEE WAS ASKED TO EX PLAIN THE NATURE AND SOURCE OF DEPOSITS. ON RECEIVING NO PLAUSIBLE REPL Y, AMOUNT OF RS. 15,26,000/0 WAS ADDED AS INCOME FROM UNDISCLOSED SO URCES. PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT WAS INITIATED FOR THE CONCEALMENT OF THE PARTICULARS OF INCOME. AN OPPORTUNITY WAS GIVE N BY THE AO TO THE ASSESSEE TO EXPLAIN ITS CASE. HOWEVER, NEITHER THE CASE WAS ATTENDED NOR ANY WRITTEN EXPLAINATION WAS FILED. THE AO PROCEED ED BY LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT FOR CONCEALMENT OF THE PA RTICULARS OF INCOME. THE AO DREW SUPPORT FROM THE FINDINGS OF THE LD. CI T(A) IN THE QUANTUM APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ASSESS MENT ORDER. 4. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATT ER BEFORE THE LD. CIT(A). IT WAS CLAIMED BEFORE THE LD. CIT(A) THAT THE MONEY DEPOSITED IN THE SYNDICATE BANK ACCOUNT ARE BORROWED/GIFT REC EIVED FROM RELATIVES. THE ASSESSEE ALSO TRIED TO EXPLAIN THE CREDIT WORTH INESS OF THE DONORS CONCERNED. THE LD. CIT(A) WAS CONVINCED WITH THE S UBMISSIONS MADE BY THE ASSESSEE RELYING UPON THE DECISION OF THE HO NBLE SUPREME COURT IN THE CASE OF RELIANCE PETRO PRODUCTS (P) LTD. 322 ITR 158. THE LD. CIT(A) WAS OF THE OPINION THAT THE REJECTION OF THE CLAIM MADE BY THE ASSESSEE IS NOT CORRECT AND THERE IS NO CASE FOR IM PUGNED PENALTY. THE LD. CIT(A) DELETED THE PENALTY. 5. AGGRIEVED, REVENUE IS BEFORE US. ITA NO. 6375/M/2011 3 6. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUP PORTED THE PENALTY ORDER. THE LD. DR BROUGHT TO OUR NOTICE TH E FINDINGS OF THE LD. CIT(A) IN THE QUANTUM APPEAL CONFIRMING THE ADDITIO NS MADE DURING THE ASSESSMENT PROCEEDINGS. 7. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE REI TERATED WHAT HAS BEEN SUBMITTED BEFORE THE FIRST APPELLATE AUTHORITY . 8. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW. IT IS AN ADMITTED FACT THAT SAVINGS BANK ACCOUNT WITH SYN DICATE BANK, MALAD (W) WAS NOT DISCLOSED IN THE STATEMENT OF ACCOUNT F ILED WITH THE RETURN OF INCOME. IT IS ALSO AN ADMITTED FACT THAT INSPITE O F HAVING BEEN GIVEN SEVERAL OPPORTUNITIES, THE ASSESSEE FAILED TO EXPLA IN SOURCE OF DEPOSITS OF RS. 15,26,000/- IN THE SAID SAVINGS BANK ACCOUNT. THIS LEAVES NO ROOM FOR THE PROPOSITION THAT IT IS A FIT CASE FOR THE CONCE ALMENT OF THE PARTICULARS OF INCOME. THE TOTAL INCOME OF THE ASSESSEE FOR THE Y EAR IS RS. 1,84,910/-. THE BANK DEPOSITS ARE 12 TIMES MORE THAN THE INCOME OF THE ASSESSEE FOR WHICH THE ASSESSEE DID NOT EXPLAIN THE SOURCE OF DE POSITS. THE CLAIM OF THE ASSESSEE THAT HE HAS RECEIVED GIFT FROM HIS REL ATIVES IS UNSUBSTANTIATED. THE LD. CIT(A) HAS MISDIRECTED BY THE DECISION BY R ELYING UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F RELIANCE PETRO PRODUCTS (SUPRA) INASMUCH AS THE ISSUE OF CONCEALME NT OF PARTICULARS OF INCOME WAS NEVER BEFORE THE HONBLE SUPREME COURT. THE SUPREME COURT HAS DECIDED IN FAVOUR OF THE ASSESSEE ON THE ISSUE OF FILING OF INACCURATE PARTICULARS OF INCOME. THUS, THE RELIAN CE PLACED BY THE LD. CIT(A) IS TOTALLY MISPLACED. ITA NO. 6375/M/2011 4 8.1. CONSIDERING THE FACTS OF THE CASE IN TOTALITY, WE SET ASIDE THE ORDER OF THE LD. CIT(A). THE LEVY OF PENALTY FOR THE CON CEALMENT OF THE PARTICULARS OF INCOME IS CONFIRMED. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH DEC.2012 SD/- SD/- (VIJAY PAL RAO ) (N.K. BILLAIYA) /JUDICIAL MEMBER !& / ACCOUNTANT MEMBER MUMBAI; 4 DATED : 05/12/2014 . . ./ RJ , SR. PS !3 !3 !3 !3 / // / ,0 ,0 ,0 ,0 5!(0 5!(0 5!(0 5!(0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- 4. 6 / CIT 5. 78 ,0 , , / DR, ITAT, MUMBAI 6. 8 9 / GUARD FILE. !3 !3 !3 !3 / BY ORDER, -0 ,0 //TRUE COPY// : :: : / ; ; ; ; (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI