NEELA P. DOSHI, MUMBAI V. DCIT CC 9, MUMBAI

ITA 6859/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2968 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 27-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR SONIDR
• Assessee Lawyers: MAHESH O RAJORA
• Keywords: Capital asset; Gift; Fair market value; Valuation report
• Section: 27; 54; 132

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.6859/MUM/2013 ASSESSMENT YEAR 2009-10 SMT. NEELA P. DOSHI, ACME GHAR, 19 K.D. ROAD, VILLE PARLE (W), MUMBAI-400056 / VS. THE ASST. COMM. OF INCOME TAX, CENTRAL CIRCLE-9, MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO. AACPD6490Q !' # / ASSESSEE BY SHRI MAHESH O. RAJORA $ / REVENUE BY SHRI VIJAY KUMAR SONI-DR $% & # ' / DATE OF HEARING : 21/10/2015 & # ' / DATE OF ORDER: 21/10/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 07/10/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, CONFIRMING PENALTY OF RS.3,36,912/-, IMPOSED U/S 27 1(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE, SHRI MAHESH O. RAJOURA, CONTENDED THAT QU ANTUM SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 2 ADDITION HAS BEEN DELETED BY THE TRIBUNAL VIDE ORDE R DATED 31/07/2015 (ITA NO.3513/MUM/2012), IN THE CASE OF ASSESSEE ITSELF, THEREFORE, IT WAS PLEADED THAT PEN ALTY DOES NOT SURVIVE. THIS FACTUAL MATRIX WAS NOT CONTROVERTED B Y THE LD. DR, SHRI VIJAY KUMAR SONI. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PO RTION OF THE AFORESAID ORDER DATED 31/07/2015, ON QUANTUM AD DITION, FOR READY REFERENCE:- ITA NO.3513/M/2012 2. THE ASSESSEE IN THIS APPEAL HAS CHALLENGED THE A CTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITIONS MADE BY THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) AS UNEX PLAINED INVESTMENTS IN RELATION TO JEWELLERY FOUND DURING T HE COURSE OF SEARCH ACTION. 3. THE FACTS IN BRIEF ARE THAT A SEARCH ACTION U/S 132 OF THE I.T. ACT WAS CARRIED OUT IN THE CASE OF ACME GROUP COMPA NIES AND RELATED PERSONS. THE ASSESSEE WAS ALSO COVERED IN T HE SAID SEARCH ACTION. THE ASSESSEE IS A PARTNER IN VARIOUS FIRMS ENGAGED IN BUSINESS OF BUILDER AND DEVELOPER. DURIN G THE COURSE OF THE SEARCH OPERATION, TOTAL JEWELLERY VAL UED AT RS.17330641/- WAS FOUND FROM THE PREMISES OF THE AS SESSEE, OUT OF WHICH JEWELLERY VALUED AT RS.36,93,026/- WAS SEIZED. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, TH E AO ASKED THE ASSESSEE TO SHOW CAUSE WHY JEWELLERY TO T HE EXTENT SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 3 WHICH HAS NOT BEEN REFLECTED IN THE RETURN OF INCOM E SHOULD NOT BE TREATED AS UNEXPLAINED AND ADDED TO THE INCOME O F THE ASSESSEE. 4. THE ASSESSEE EXPLAINED THE SOURCE OF THE JEWELLE RY AND MADE HIS SUBMISSIONS VIDE LETTER DATED 4.10.2010 AND FUR THER VIDE LETTER DATED 8.11.2010. HE FURTHER SUBMITTED THAT L OOKING TO THE STATUS OF FAMILY AND THE CUSTOMS AND THE PRACTICE O F THE COMMUNITY TO WHICH THE FAMILY BELONGED, THE JEWELLE RY FOUND SHOULD BE TREATED AS DULY EXPLAINED. THE AO HOWEVER DID NOT AGREE WITH THE EXPLANATION OFFERED BY THE ASSESSEE. HE OBSERVED THAT OUT OF THE TOTAL JEWELLERY FOUND, THE JEWELLERY VALUING RS.21,58,524/- HAD REMAINED UNEXPLAINED. HE ACCORDINGLY ADDED THE SAID AMOUNT INTO THE INCOME O F THE ASSESSEE U/S 69A OF THE ACT. AGGRIEVED BY THE ADDIT ION MADE BY THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD . CIT(A). 5. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THA T THE JEWELLERY FOUND DURING THE SEARCH ACTION BELONGED T O THE MEMBERS OF THE DOSHI FAMILY, INCLUDING THE ASSESSEE , THE NAMES OF WHOM ARE MENTIONED AS UNDER: I) MR. PRAVIN H DOSHI (SPOUSE OF APPELLANT) II) MRS. NEELA PRAVIN DOSHI (SELF-APPELLANT) III) MR. MUNISH P DOSHI (SON OF APPELLANT) IV) MRS. ALKA MUNISH DOSHI (DAUGHTER IN LAW) V) MASTER MANAV MUNISH DOSHI (GRAND SON OF APPELLAN T) SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 4 VI) MR. RAJESH P DOSHI (SON OF APPELLANT) VII) MRS. PRITI RAJESH DOSHI (DAUGHTER IN LAW) VIII) PRAVIN H DOSHI (HUF) IX) MRS. RANJAN BEN R DOSHI. (WIDOW OF LATE SHRI RA TILAL DOSHI) (AUNTY OF SPOUSE) THE ASSESSEE ALSO FURNISHED THE FOLLOWING EVIDENCES TO EXPLAIN THE SOURCE OF ACQUISITION OF THE JEWELLERY IN QUEST ION: A) JEWELLARY VALUATION REPORT DT.1.11.1995 OF SURE SH C KAPOOR, GOVERNMENT APPROVED VALUE (DURING SEARCH AC TION IN 1995) B) JEWELLARY VALUATION REPORT DT.23.4.2004 AS ON 3 1.3.2004 OF SHRENIK R SHAH (JEWELLARY REPORT OBTAINED FOR WEALT H TAX PURPOSE) B) JEWELLARY VALUATION REPORT DT.3.4.2000 AS ON 31. 3.2000 IN CASE OF PRITI RAJESH DOSHI (MAIDEN NAME PRITI VINOD AMBANI) C) BILLS FOR PURCHASE OF JEWELLARY & MAKING CHARGES ALONG WITH BANK STATEMENT/ PASS BOOK REFLECTING PAYMENT M ADE ALONG WITH FEW LEDGER ACCOUNT OF PARTIES. THE ASSESSEE ALSO FILED THE LEDGER OF THE JEWELLER Y ACCOUNT REFLECTING THE JEWELLERY PURCHASED FOR THE RELEVANT PERIOD. THE ASSESSEE FURTHER SUBMITTED THAT CONSIDERING THE FIN ANCIAL STATUS OF THE FAMILY OF THE ASSESSEE, THE JEWELLERY FOUND DURING COURSE OF SEARCH ACTION COULD NOT BE REGARDED AS UNEXPLAIN ED. THE ASSESSEE FURTHER EXPLAINED THAT SOME OF THE JEWELLE RY WAS SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 5 RECEIVED AS GIFT FROM RELATIVES ON SOCIAL AND RELIG IOUS OCCASIONS LIKE MARRIAGE, BIRTHDAY ANNIVERSARY ETC. IT WAS ALSO EXPLAINED THAT SOME OF THE JEWELLERY WAS REMADE OUT OF THE OLD JEWELLERY. THE ASSESSEE FURTHER SUBMITTED THAT THE TOTAL WEIGHT OF JEWELLERY FOUND MATCHED WITH THE JEWELLERY ACCOU NTED BY THE DOSHI FAMILY. THE ASSESSEE FURTHER SUBMITTED THAT I N CASE OF SOME JEWELLERY, THE DESCRIPTION DID NOT MATCH EITHE R DUE TO ABSENCE OF FULL DESCRIPTION OF THE JEWELLERY MADE B Y THE DEPARTMENTAL VALUER DURING SEARCH ACTION OR DUE TO THE REMAKING OF THE JEWELLERY FROM THE OLD JEWELLERY IT EMS. IT WAS SUBMITTED THAT EVEN IN RESPECT OF DIAMOND JEWELLERY , THE OVERALL CARAT WEIGHT OF DIAMONDS APPROXIMATELY MATC HED WITH THAT WAS ALREADY ACCOUNTED BY ASSESSEES FAMILY MEM BERS. IT WAS THEREFORE SUBMITTED THAT THE ADDITIONS UNDER SE CTION 69A WERE NOT WARRANTED IN THIS CASE. 6. THE LD. CIT(A), AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE OBSERVED THAT IT WAS CORRECT THAT THE OVER ALL WEIGHT OF THE GOLD JEWELLERY DECLARED BY THE ASSESSEE AND HIS FAMILY IN THE BOOKS OF ACCOUNTS WAS IN EXCESS OF GOLD JEWELLE RY FOUND DURING THE COURSE OF SEARCH ACTION, HOWEVER, THE DE PARTMENT HAD TO MATCH EACH AND EVERY ITEM FOUND WITH THE ITE MS DECLARED IN THE VALUATION REPORTS OF THE APPROVED V ALUERS AS FURNISHED BY THE ASSESSEE AND THAT THE ONUS WAS ON THE ASSESSEE TO PROVE THE SOURCE OF ACQUISITION OF EACH AND EVERY ITEM OF JEWELLERY. HE THEREFORE CALLED UPON THE ASS ESSEE TO PREPARE AN ITEM VISE CHART SHOWING WHICH OF THE ITE MS COULD BE SAID TO BE MATCHING AND ANOTHER CHART IN RESPECT OF ITEMS WHICH DID NOT MATCH WITH THE DESCRIPTION OF ITEMS M ADE IN THE SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 6 VALUATION REPORT FURNISHED BY THE ASSESSEE. THE ASS ESSEE MADE CHARTS NO. I & II IN THE ABOVE MANNER IN RELATION T O GOLD ITEMS, THE CONTENTS OF WHICH HAVE ALSO BEEN REPRODUCED IN THE IMPUGNED ORDER. 7. THE LD. CIT(A), AFTER TALLYING AND MAKING COMPAR ATIVE ANALYSIS OF THE ITEMS DISCLOSED BY THE ASSESSEE IN THE APPROVED VALUERS REPORT WITH THAT OF THE REPORT MADE DURING SEARCH ACTION, OBSERVED THAT MOST OF THE ITEMS MENTIONED I N CHART NO.I MATHED WITH THE DESCRIPTION GIVEN IN THE VALUATION REPORT OF THE APPROVED VALUER, EXCEPT ITEMS NO.24 & 25 BEING GOLD GINNI AND GOLD COIN RESPECTIVELY, WHICH THE ASSESSEE CLAI MED TO HAVE BEEN RECEIVED AS GIFT. THE LD. CIT(A), THEREFORE DI RECTED THE AO TO DELETE THE ADDITION IN RESPECT OF THE REMAINI NG ITEMS MENTIONED IN CHART NO. I, EXCEPT THE ABOVE STATED T WO ITEMS AMOUNTING TO RS.82,392/- AND RS.75,823/- RESPECTIVE LY. IN RELATION TO CHART NO.II, THE LD. CIT(A) OBSERVED TH AT THE ITEMS MENTIONED IN CHART NO.II DID NOT EXACTLY MATCH WITH THE DESCRIPTION MADE IN THE APPROVED VALUERS REPORTS. HE, THEREFORE, CONFIRMED THE ADDITIONS IN RESPECT OF IT EMS OF GOLD JEWELLERY MENTIONED IN CHART NO.II. THE LD. CIT(A) ALSO DIRECTED THE ASSESSEE TO PREPAR E SIMILAR CHARTS IN RESPECT OF DIAMOND JEWELLERY. THE ASSESSE E SUBMITTED THE SAID CHARTS ACCORDINGLY. THE LD. CIT(A), AFTER TALLYING THE EACH OF THE ITEMS WITH THAT OF VALUATION REPORT OF THE APPROVED VALUER, FOUND THAT THOUGH NUMBER OF PIECES OF DIAMO NDS IN RESPECT OF DIAMOND JEWELLERY WERE MATCHING IN ALMOS T ALL THE ITEMS; HOWEVER, THERE WAS DIFFERENCE IN THE ESTIMAT E OF CARAT SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 7 WEIGHT. HE THEREFORE HELD THAT THE DESCRIPTION DID NOT EXACTLY MATCH IN RESPECT OF DIAMOND JEWELLERY. HE, ACCORDIN GLY, CONFIRMED THE ADDITION MADE BY THE AO IN RESPECT OF DIAMOND JEWELLERY. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) , THE ASSESSEE HAS COME IN APPEAL BEFORE US. 9. THE LD. A.R. OF THE ASSESSEE HAS BROUGHT OUR ATT ENTION TO THE DETAILS AND DESCRIPTION OF THE ITEMS AS REPRODUCED BY THE LD. CIT(A) IN THE IMPUGNED ORDER. INVITING OUR ATTENTIO N TO THE PAGE 12 OF THE IMPUGNED ORDER IN RELATION TO ITEM N O.29 OF LOCKER NO.571, THE DESCRIPTION HAS BEEN MENTIONED A S TANMANYA PENDANT WITH CHAIN. THE NUMBER OF PIECES OF DIAMOND IN THE SAID PENDANT HAS BEEN MENTIONED AS 5 9. THE ASSESSEE HAS STATED THAT IT MATCHED WITH ITEM AT SE RIAL NO. 9 OF THE VALUERS REPORT WHEREIN THE DESCRIPTION HAS BEE N MENTIONED AS DOUBLE STRING BLACK BEADS MANGALSUTRA WITH PENDANT WHEREIN THE TOTAL NUMBER OF DIAMONDS IS AL SO MENTIONED AS 59. HOWEVER, THE CARAT WEIGHT MENTIONE D BY THE DEPARTMENTAL VALUER IS 0.88, WHEREAS, IN THE ASSESS EES VALUATION REPORT, IT HAS BEEN MENTIONED AS 118. HOW EVER, THE GOLD GROSS WEIGHT MENTIONED BY THE DEPARTMENTAL VAL UER IS 21.850 WHEREAS IN THE VALUATION REPORT PRODUCED BY THE ASSESSEE IT HAS BEEN MENTIONED AS 20.3. SIMILARLY, IN RESPECT OF ITEM NO.19 I.E. BANGLES WITH RODIUM THE GOLD GROS S WEIGHT ALSO MATCHED AND THE PIECES OF DIAMONDS MENTIONED A LSO MATCHED. HOWEVER, THE ESTSIMATION OF CARAT VALUE BY THE GOVERNMENT VALUER IS AT 1.68 WHEREAS AS MENTIONED I N THE VALUATION REPORT OF THE ASSESSEE IS AT 2.75. SIMILA RLY, IN RESPECT OF ITEM NO.21 EARTOPES GOLD GROSS WEIGHT ALSO MAT CHES AND SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 8 NUMBER OF PIECES OF DIAMOND ALSO MATCHES. HOWEVER, THERE IS A SMALL DIFFERENCE IN CARAT WEIGHT OF DIAMONDS. THE LD. A.R. OF THE ASSESSEE HAS INVITED OUR ATTENTION IN RESPECT O F OTHER ITEMS ALSO WHERE THE GROSS GOLD WEIGHT OF THE ITEMS MATCH ES WITH THAT OF THE DESCRIPTION MENTIONED IN THE VALUATION REPORTS SUBMITTED BY THE ASSESSEE AND EVEN NUMBER OF PIECES OF DIAMONDS IN THE JEWELLERY ALSO MATCHED. HOWEVER, TH ERE WAS DIFFERENCE IN ESTIMATION OF CARAT WEIGHT. 10. WE FIND THAT IT IS NOT A CASE WHERE THE ITEMS M ENTIONED IN THE VALUATION REPORTS SUBMITTED BY THE ASSESSEE DID NOT MATCH AT ALL WITH THAT OF THE ITEMS OF JEWELLERY WHICH WE RE FOUND DURING THE SEARCH ACTION. NOT ONLY THE DESCRIPTION OF THE JEWELLERY SETS, BANGLES, PENDANT, EARTOPES ETC. MAT CHED WITH THE VALUATION REPORT BUT ALSO THE NUMBER OF DIAMOND S EMBEDDED IN THE JEWELLERY. SO FAR AS THE ESTIMATION OF CARAT WEIGHT IS CONCERNED, IT IS AN ADMITTED FACT THAT TH E WEIGHT WAS NOT MEASURED BY EXTRACTING THE DIAMONDS OUT OF THE JEWELLERY, BUT WAS JUST ESTIMATED BY THE DEPARTMENTAL VALUER. UNDER SUCH CIRCUMSTANCES, THE MINOR DIFFERENCE IN CARAT W EIGHT VALUE, ESPECIALLY WHEN THE SAME WAS NOT EXACTLY WEI GHED BY THE DEPARTMENTAL VALUER COULD NOT BE THE SOLE CRITE RIA TO HOLD THAT THE DESCRIPTION OF JEWELLERY DID NOT MATCH. TH E LD. A.R. OF THE ASSESSEE HAS FURTHER INVITED OUR ATTENTION TO P AGE NO1 OF THE PAPER BOOK WHICH IS THE SUMMARY OF THE GOLD JEW ELLERY. HE HAS EXPLAINED THAT THE TOTAL GOLD JEWELLERY SHOWN B Y THE ASSESSEE AND HIS FAMILY MEMBERS IN THE BOOKS WAS OF 9919.790 GMS. WHEREAS THE JEWELLERY FOUND AND VALUED BY THE DEPARTMENTAL VALUER WAS OF 9145.380 GMS. WHICH WAS LESS SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 9 THAN THE JEWELLERY ALREADY DECLARED BY THE FAMILY M EMBERS OF THE ASSESSEE IN THE BOOKS OF ACCOUNT. SIMILARLY, IN RESPECT OF DIAMOND JEWELLERY, THE ASSESSEE FAMILY HAS ALREADY DECLARED 222.80 CARATS OF DIAMOND, WHEREAS, THE DEPARTMENTAL VALUER HAD ESTIMATED ONLY 203.29 CARAT OF THE DIAMONDS WHI CH WAS LESS THAN THE TOTAL DIAMOND WEIGHT/CARATS DECLARED BY THE ASSESSEE. EVEN THE NUMBER OF DIAMONDS EMBEDDED IN T HE EACH ITEM OF THE JEWELLERY MATCHED WITH THAT OF THE VALU ATION REPORT. 11. THE LD. A.R. HAS FURTHER INVITED OUR ATTENTION TO THE DECISION OF THE JODHPUR BENCH OF THE TRIBUNAL IN TH E CASE OF DCIT VS. ARJUN DASS KALWANI 101 ITD 337 WHEREIN T HE TRIBUNAL HAS HELD THAT SIMPLY BECAUSE THE ASSESSEE COULD NOT LEAD EVIDENCE FOR CONVERSION OR REMAKING OF THE JEW ELLERY, POSSESSION OF WHICH WAS OTHERWISE ACCEPTED, IT COUL D NOT BE SAID THAT HOLDING OF GOLD JEWELLERY TO THAT EXTENT WAS UNEXPLAINED, ESPECIALLY WHEN EVIDENCE WAS AVAILABLE THAT THE ASSESSEE HAD ALREADY BEEN ASSESSED AT MUCH MORE JEW ELLERY IN EARLIER ASSESSMENT YEAR. FURTHER, IN THE CASE OF M RS. VINITA S. JHUNJHUNWALA VS. ACIT IN ITA NO.8837/M/2010 FOR A. Y. 2008-09 DECIDED ON 20.01.2014, THE CO-ORDINATE MUMB AI BENCH OF THE TRIBUNAL HAS CONCLUDED THAT WHEN QUANT ITY OF JEWELLERY DISCLOSED BY THE ASSESSEE IS SAME AS THE QUANTITY OF JEWELLERY FOUND DURING THE COURSE OF SEARCH, NO ADD ITION IS WARRANTED MERELY BECAUSE THE DESCRIPTION IS NOT MAT CHING. IT IS A VITAL FACT THAT LADIES GET JEWELLERY CONVERTED AS PER LATEST DESIGN AND FOR WHICH EVEN THE CONCERNED MAN IN THE FAMILY IS BEING NOT INFORMED. IN THESE CIRCUMSTANCES MERELY B ECAUSE OF CONVERSION OF SUCH JEWELLERY, CANNOT BE MADE BASIS FOR MAKING SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 10 ADDITION, WHEN THE JEWELLERY DISCLOSED BY THE ASSES SEE EITHER IN HIS OWN HAND OR IN THE HANDS OF THEIR FAMILY MEMBER S PRIOR TO THE DATE OF SEARCH IS EQUAL TO OR MORE THAN THE JEW ELLERY FOUND DURING THE COURSE OF SEARCH. IN THE CASE OF RAKESH J. PARIKH V. DCIT IN IT(SS)A NO.136/M/2000 FOR BLOCK PERIOD 01.04.1987 TO 25.09.1997 DECIDED VIDE ORDER DATED 26.02.2004, THE COORDINATE BENCH OF THE TRIBUNAL HA S OBSERVED THAT MERELY BECAUSE THE DESCRIPTION OF SOME OF THE ORNAMENTS IN THE WEALTH-TAX RETURN DID NOT TALLY WITH THE ORN AMENTS FOUND AT THE TIME OF SEARCH, IS NO GROUND FOR REJECTING T HE ASSESSEES CLAIM OF REMAKING OF THE ORNAMENTS EVEN IF THE ASSE SSEE HAS NOT PRESERVED THE BILL OF REMAKING CHARGES. IN THE CASE OF ACIT VS. SHRI KAMALKISHAN H. AGGARWAL IN ITA NO.777/M/1998 AND ITA NO.5127/M/1995 & OTHERS DECID ED VIDE COMMON ORDER DATED 21.06.13, THE TRIBUNAL UNDE R SOMEWHAT SIMILAR CIRCUMSTANCES HAS OBSERVED THAT NO RMAL PRESUMPTION IS THAT DURING THE COURSE OF THE SEARCH , THE ENTIRE JEWELLERY FOUND AT RESIDENCE, IN BANK LOCKERS, OTHE R PREMISES AND ALSO ON PERSON IS DULY INVENTORISED. IF THE WEI GHT OF THE JEWELLERY FOUND AT THE TIME OF SEARCH IS MORE THAN THE WEIGHT DECLARED IN WEALTH TAX RETURNS, THE DIFFERENCE HAS TO BE TAKEN TO BE UNEXPLAINED JEWELLERY UNLESS THE ASSESSEE IS ABLE TO ESTABLISH THAT FRESH JEWELLERY WAS PURCHASED AND SO URCES THEREOF ARE EXPLAINED. IT IS NORMAL THAT SOME OF TH E ORNAMENTS ARE DISMANTLED AND REMADE. IT WOULD BE UNREASONABLE TO TAKE A STAND THAT ALL THE ORNAMENTS FOUND AT THE TIME OF S EARCH MUST ACCURATELY COMPARE IN DESCRIPTION AND WEIGHT WITH T HE ORNAMENTS DECLARED IN THE WEALTH TAX RETURN. THE PO SSIBILITY THAT SOME OF THE ITEMS COULD HAVE BEEN REMADE CANNO T BE RULED SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 11 OUT. THE IMPORTANT POINT IS THAT THE ORNAMENTS FOUN D SHOULD NOT BE IN EXCESS IN QUANTITY AS COMPARED TO THE ORN AMENTS DECLARED IN THE WEALTH TAX RETURNS. OUR ATTENTION HAS ALSO BEEN INVITED TO THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF COMMIS SIONER OF WEALTH TAX VS. B.M. KANODIA (HUF) WHEREIN THE H ONBLE HIGH COURT IN PARA 5 OF THE ORDER HAS OBSERVED THAT WHERE THE GOVERNMENT VALUER ADOPTED THE WEIGHT OF THE DIAMOND BY ESTIMATING WITHOUT SEPARATING THE DIAMOND FROM THE METAL, THE REPORTS OF VALUERS COULD NOT BE HELD TO BE ACCURATE AND EXACT AND THAT THE POSSIBILITY IN DIFFERENCE OF WEIGHT CO ULD NOT BE RULED OUT. 12. IN THE CASE IN HAND ALSO, IF THE DIFFERENCE IN WEIGHT IS IGNORED THE DESCRIPTION OF THE ITEMS OF THE JEWELLE RY ALMOST TALLIED WITH THAT OF THE ITEMS ALREADY DECLARED BY THE ASSESSEE. MOREOVER THE OVERALL WEIGHT OF JEWELLERY ALREADY DE CLARED BY THE ASSESSEE IN HER BOOKS OF ACCOUNTS IS MORE THAN THAT OF THE JEWELLERY FOUND DURING THE COURSE OF SEARCH ACTION. IN VIEW OF THE ABOVE STATED FACTS AND IN THE LIGHT OF THE PROP OSITION OF LAW LAID DOWN VIDE JUDICIAL PRONOUNCEMENTS ON THIS ISSU E AS DISCUSSED ABOVE, IT CANNOT BE SAID IN THIS CASE THA T THE JEWELLERY FOUND DURING THE SEARCH ACTION WAS UNEXPL AINED. THE ADDITIONS THUS IN THIS CASE ARE NOT WARRANTED AND T HE SAME ARE ORDERED TO BE DELETED. 2.2. IN VIEW OF THE ABOVE, IT CAN BE SAID THAT THE BASIS ON WHICH PENALTY WAS LEVIED, REMAINS NO MORE IN EXISTE NCE, SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 12 THEREFORE, THE PENALTY CANNOT SURVIVE. OUR VIEW FIN D SUPPORTS FROM THE DECISION OF THE TRIBUNAL DATED 30/09/2015 (ITA NO.2253/MUM/2014) IN THE CASE OF MS. VILMA M. PEREI RA FOR READY REFERENCE:- THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 10/01/2014 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, DELETING PENALTY OF RS.18,75,314/-, IMPOSED U/S 271(1)(C), E VEN THOUGH THE QUANTUM ADDITION HAS BEEN UPHELD BY THE LD. COMMISS IONER OF INCOME TAX (APPEALS). 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL F OR THE ASSESSEE, AT THE OUTSET, POINTED OUT THAT THE QUANTUM ADDITIO N ON THE BASIS OF WHICH PENALTY WAS IMPOSED HAS BEEN DELETED BY THE T RIBUNAL IN ORDER DATED 27/02/2015. THE ASSESSEE FURNISHED THE COPY OF THE ORDER. ON THE OTHER HAND, LD. DR, SHRI B. YADAGIRI , DEFENDED THE IMPOSITION OF PENALTY. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE AB OVE, WE ARE REPRODUCING HEREUNDER THE AFORESAID ORDER OF THE TR IBUNAL (ITA NO.8797 AND 8798/MUM/2010) ORDER DATED 27/02/2015 F OR READY REFERENCE:- THESE TWO APPEALS HAVE BEEN FILED BY TWO ASSESSEES AGAINST THE ORDER OF CIT(A), FOR THE ASSESSMENT YEAR 2007-08, I N THE MATTER OF ORDER PASSED U/S.143(3) OF THE I.T.ACT. 2. COMMON GRIEVANCE IN BOTH THE APPEALS RELATE TO D ISALLOWANCE OF CLAIM OF DEDUCTION U/S.54(1) IN RESPECT OF RESIDENT IAL FLATS ACQUIRED BY THE ASSESSEES IN CONSIDERATION OF OLD HOUSE SOLD TO THE BUILDER. SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 13 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. FACTS IN BRIEF ARE THAT THE ASSESSEE VILMA MARY PEREIRA HAS SOLD IMMOVABLE PROPERTY SITUATED AT 'VIOLET VALLEY' (WITH GARAGE) AT JUNCTION OF 26TH AND 30TH ROAD AT BANDRA (W), MUMBAI FOR A TOTA L CONSIDERATION OF RS.3,05,00,000/- VIDE AGREEMENT DA TED 28.4.2006 TO M/S. AQUA MARINE ENTERPRISES. THE SHARE OF THE A SSESSEE IS 23% IN THE SAID PROPERTY AND THE OTHER ASSESSEE MR. PETER PEREIRA WAS HAVING SHARE OF 77% IN THE SAID HOUSE. FROM THE AGR EEMENT, THE A.O. OBSERVED THAT THE ASSESSEE WAS TO RECEIVE THREE MOR E FLATS I.E. TWO FLATS HAVING A CARPET AREA OF 1200 SQ.FT. EACH AND ONE FLAT HAVING CARPET AREA OF 750 SQ.FT. AND THREE PARKING SPACES (TWO STILT AND ONE OPEN) AS PART OF ADDITIONAL CONSIDERATION. HOWEVER, THE ADDITIONAL CONSIDERATION WAS NOT SHOWN AS PART OF THE TOTAL CO NSIDERATION RECEIVED BY THE ASSESSEE IN HER COMPUTATION OF LTCG ON TRANSFER OF THE SAID PROPERTY DURING THE YEAR. FURTHER, THE ASS ESSEE HAD TAKEN THE FMV OF THE SAID PROPERTY AS ON 1.4.1981 AT RS.3 5,00,000/- ON THE BASIS OF VALUATION REPORT DATED 3.8.2006. IN VIEW O F THIS, VIDE LETTER DATED 21.8.2009, THE A.O. ASKED THE ASSESSEE TO STA TE AS UNDER :- '1. PLEASE PROVIDE THE MARKET VALUE OF TILE ADDITIO NAL FLATS AND OTHER AMENITIES TO BE RECEIVED BY YOU FROM THE BUILDER AS PER THE SALE AGREEMENT DATED 28.4.2006. FURNISH COPIES OF AGREEM ENTS ENTERED BY YOU IN THIS RESPECT. PLEASE ALSO EXPLAIN WHY THE MARKET VALUE OF THE SAID FLATS AND AMENITIES SHOULD NOT BE ADDED TO YOUR TOTAL CONSIDERATION FOR SALE OF PROPERTY DURING THE YEAR WHILE COMPUTING THE LTCG FOR THE YEAR ON SALE OF PROPERTY. 2. PLEASE FURNISH PURCHASE PROOF AT' NHA BONDS AGAI NST WHICH DEDUCTION ULS.54EC HAS BEEN CLAIMED. PLEASE FURNISH COPIES OF RELEVANT BANK EXTRACTS WITH NARRATION OF EACH ENTRY TO SUPPORT YOUR CLAIM. 3. PROOF OF PAYMENT OF PROFESSIONAL FEES AND ALLOW ABILITY OF THE SAME AS DEDUCTION FROM THE LTCG SHOWN. 4. BASIS OF DIVISION OF SHARE OF THE PROPERTY SOLD DURING THE YEAR. PLEASE FURNISH EVIDENCES TO SUPPORT YOUR CLAIM. SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 14 5. PLEASE EXPLAIN WHY THE VALUATION MADE BY YOU OF THE PROPERTY SOLD AS ON 1.4.1981 SHOULD NOT BE REJECTED? 4. IN RESPONSE, THE A.R. OF THE APPELLANT VIDE LETT ER DATED 23.10.2009 SUBMITTED AS UNDER :- 'THE NEW FLAT AND CAR PARKING IS RECEIVABLE IN LIEU OF OLD RESIDENTIAL PLACE AND OLD CAR PARKING PLACE. HENCE THERE IS NO ADDITIONAL AMENITIES RECEIVED FROM SELLER HENCE THERE SHOULD N OT BE ADDITION ON ACCOUNT OF MARKET VALUE OF THE SAID FLAT AND AMENIT IES ADDED TO TOTAL CONSIDERATION FOR SALE OF PROPERTY DURING THE YEAR. VALUATION DONE BY ODILIO FERNANDES ON 31.7.2006 AS ON 1.4.1981 AT RS.35 LACS. YOUR HONOUR MAY REFER TO DEPARTMENTAL V ALUER FOR FURTHER VERIFICATION. IN CASE YOUR HONOUR IS NOT SA TISFIED WITHOUT VALUATION REPORT. 4. THE AFORESAID SUBMISSION OF THE ASSESSEE WAS CON SIDERED BY THE A.O. ACCORDING TO THE A.O. THE NEW FLAT AND CAR PAR KING ARE NOTHING BUT ADDITIONAL CONSIDERATION. IF THE SAID NEW FLAT IS RECEIVABLE FOR OLD FLAT AND OLD CAR PARKING PLACE, HOW THE ASSESSEE HA S CLAIMED INDEXATION ON THE VALUE OF THE SAID PROPERTIES AS O N 1.4.1981 AGAINST THE CONSIDERATION. IF THE NEW FLAT WAS TO BE GIVEN IN LIEU OF THE OLD AREA OCCUPIED BY THE ASSESSEE IN THE OLD STRUCTURE, THEN THE VALUE OF THE SAID OLD STRUCTURE SHOULD HAVE BEEN REDUCED FRO M THE VALUE OF THE ENTIRE PROPERTY AS ON 1.4.1981 WHILE COMPUTING THE LTCG ON SUCH SALE. HOWEVER, THE ASSESSEE HAS TAKEN THE FMV OF THE ENTIRE PROPERTY AS ON 1.4.1981 INTO CONSIDERATION WHILE CO MPUTING THE LTCG ON THE SALE OF SUCH PROPERTY. 5. THE A.R. OF THE ASSESSEE VIDE HIS SUBMISSION DAT ED 12.11.2009 STATED THAT IF MARKET VALUE OF THE NEW FLAT IS ADDE D TO INCOME OF THE ASSESSEE, THEN THE INVESTMENT IN NEW RESIDENTIAL PR OPERTY SHOULD BE ALLOWED U/S.54 AT MARKET VALUE. THE AO. ANALYSED TH E CONTENTION OF THE ASSESSEE. ACCORDING TO THE A.O., EXEMPTION U/S. 54 IS AVAILABLE ONLY WHEN THE ASSESSEE HAS PURCHASED A NEW FLAT ONE YEAR BEFORE OR TWO YEARS AFTER THE DATE OF TRANSFER OR HAS CONSTRU CTED A NEW SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 15 RESIDENTIAL' HOUSE WITHIN A PERIOD OF THREE YEARS F ROM THE DATE OF TRANSFER OF THE HOUSE PROPERTY (ORIGINAL). THE FLAT S (ALONGWITH CAR 'PARKING SPACES) RECEIVED BY THE ASSESSEE IN THE PR OPOSED BUILDING AS 'ADDITIONAL CONSIDERATION' AGREED UPON IN THE AGREE MENT DATED 28.4.2006 WAS OVER AND ABOVE HER SHARE IN THE MONET ARY CONSIDERATION. THESE FLATS (ALONGWITH CAR PARKING S PACES) FORM PART OF CONSIDERATION RECEIVED BY THE ASSESSEE TOWARDS T RANSFER OF THE PROPERTY. THIS FLAT IS NEITHER PURCHASED BY THE ASS ESSEE NOR CONSTRUCTED BY HER. THE A.O. HELD THAT SINCE THE AS SESSEE HAS NOT FULFILLED THE CONDITIONS LAID DOWN IN SECTION 54, S HE IS NOT ELIGIBLE FOR EXEMPTION U/S.54 OF THE LT. ACT. THE A.O. HAS FURTH ER ELABORATED THIS ISSUE IN PARA 10 OF THE ASSESSMENT ORDER WHEREIN HE HAS HELD THAT EXEMPTION U/S.54 OF THE I.T.ACT IS ALLOWABLE ONLY W HEN THE ASSESSEE MAKES AN INVESTMENT TOWARDS PURCHASE OR CONSTRUCTIO N OF A NEW HOUSE PROPERTY WITHIN THE STIPULATED PERIOD. THUS F OR AVAILING EXEMPTION U/S.54, THE ASSESSEE HAS TO EITHER PURCHA SE OR CONSTRUCT A NEW HOUSE PROPERTY. 6. IN THIS REGARD, THE A.O. FURTHER HELD THAT EXEMP TION U/S.54 IN RESPECT OF CAPITAL GAINS ARISING ON-SALE OF PROPERT Y USED FOR RESIDENCE IS ONLY AVAILABLE TOWARDS INVESTMENT [BY WAY OF PURCHASE OR CONSTRUCTION IN A NEW HOUSE PROPERTY WITHIN THE TIME LIMIT PRESCRIBED UNDER THE ACT. IN THE CASE UNDER CONSIDE RATION, THE ASSESSEE IS TREATING THE FLATS AND PARKING LOTS REC EIVED BY HER AS ADDITIONAL CONSIDERATION AS INVESTMENT MADE U/S.54. THESE FLATS (ALONGWITH CAR PARKING SPACES) RECEIVED BY THE ASSE SSEE AS PART OF 'CONSIDERATION' CANNOT SIMULTANEOUSLY BE TREATED AS INVESTMENT. IN ORDER TO AVAIL THE EXEMPTION U/S.54, THE ASSESSEE S HOULD HAVE MADE THE INVESTMENT IN A NEW RESIDENCE EITHER BY WAY OF PURCHASE OR CONSTRUCTION OF THE SAME. IN THE INSTANT CASE, AS P ER AO, THE ASSESSEE HAS NOT FULFILLED THIS CONDITION WHICH IS THE REQUI REMENT OF THE ACT. IN SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 16 VIEW OF THE ABOVE, THE A.O. HELD THAT THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S.54 OF THE L.T.ACT AND ACCORDINGLY DEN IED THE SAME TO THE ASSESSEE. 7. BY THE IMPUGNED ORDER, THE CIT(A) CONFIRMED THE DISALLOWANCE AGAINST WHICH THE ASSESSEES ARE IN FURTHER APPEALS BEFORE US. 8. WE HAVE CONSIDERED RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM THE RECORD THAT DURING THE COURSE OF APPELLATE PROCEEDINGS THE ASSE SSEE HAS SUBMITTED AS UNDER :- '1. DURING THE YEAR THE ASSESSEE WITH HER CO OWNER I.E. HER BROTHER MR.PETER SAVIO PEREIRA SOLD THE ANCESTRAL RESIDENTI AL PROPERTY FOR CONSIDERATION OF RS.3,05,00,00/- AND 3 FLATS ADMEES URINQ 3150 SQ. FT. WITH ONE OPEN AND TWO STILT PARKING IN KIND. 2. IN THE ASSESSMENT ORDER. THE A.O. HAS VALUED THE CONSIDERATION RECEIVED IN KIND FOR RS.3,32,70,540/- AND ADDITIONS WERE MADE IN THE ASSESSMENT ORDER UNDER THE HEAD LONG TERM CAPITAL G AINS WITHOUT CONSIDERING THE SAID AMOUNT AS REINVESTMENT IS NEIT HER PURCHASED NOR CONSTRUCTED BY THE ASSESSEE. 3. AS REGARDS BENEFIT OF SECTION 54, THIS SECTION M AKES IT CLEAR THAT CAPITAL GAIN ARISING FROM THE TRANSFER OF A HOUSE P ROPERTY IS EXEMPT FROM TAX PROVIDED THE FOLLOWING CONDITIONS ARE SATI SFIED :- (A) THE HOUSE PROPERTY IS A RESIDENTIAL HOUSE WHOSE INCOME IS TAXABLE UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' AS TRANSFERRED BY AN INDIVIDUAL OR AN HUF. (B) THE HOUSE PROPERTY (MAY BE SELF OCCUPIED OR LET OUT) IS A LONG TERM CAPITAL ASSET. (C) THE ASSESSEE HAS PURCHASED A RESIDENTIAL HOUSE WITHIN A PERIOD OF ONE YEAR BEFORE THE TRANSFER OR WITHIN TWO YEARS AFTER THE DATE OF TRANSFER OR HAS CONSTRUCTED A RESIDENTIAL HOUSE PRO PERTY WITHIN A PERIOD OF THREE YEARS AFTER THE DATE OF TRANSFER. THE APPELLANT HAS FULFILLED THE PRECONDITION MENTIO NED AT POINT NOS.(A) & (B) ABOVE WAS NOT IN DOUBT. THIS WAS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAD PURCHASED NEW RESIDENTIAL PRO PERTY BY WAY OF CONSTRUCTION. THIS WAS BECAUSE IT WAS CLEAR FROM TH E AGREEMENT WITH DEVELOPER THAT THE DEVELOPER WOULD CONSTRUCT T HE RESIDENTIAL SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 17 BUILDING ON THE PROPERTY ALIENATED BY THE ASSESSEE TO THE DEVELOPER AND HANDOVER THE RESIDENTIAL HOUSE TO THE ASSESSEE IN CONSIDERATION OF THE SALE OF ORIGINAL RESIDENTIAL PROPERTY. THIS FACT IS CLEAR AND UNAMBIGUOUS. THEREFORE TO SAY THAT THE APPELLANT HA S ALSO COMPLIED THE LAST CONDITION OF SECTION 54 FOR ACQUISITION OF NEW RESIDENTIAL PROPERTY. THE A.O. HAS CONSIDERED SALE CONSIDERATION RECEIVED IN CASH AND KINDBUT FAILED TO ALLOW THE EXEMPTION U/S.54 FOR RE INVESTMENT OF THE SAID CONSIDERATION RECEIVED IN KIND FOR ACQUIRING O F NEW RESIDENTIAL HOUSE PROPERLY. 5. THE A.O. HAS MISINTERPRETED THE DEFINITION OF ' PURCHASE' HELD BY THE APEX COURT IN THE ASSESSEE OF CIT VS. T.N. ARAV INDA REDDY. IN THIS CASE, THE DEFINITION OF THE TERM 'PURCHASE' HAS BEE N GIVEN AS UNDER: '....... WE FIND NO REASON TO DIVORCE THE ORDINARY MEANING OF THE WORD PURCHASE AS BUYING FOR A PRICE OR EQUIVALENT OF PRI CE BY PAYMENT IN KIND OR ADJUSTMENT TOWARDS AN OLD DEBT OR FOR OTHER MONETARY CONSIDERATION FROM THE LEGAL MEANING OF THAT WORD I N SECTION 54(1). IF YOU SELL YOUR HOUSE AND MAKE A PROFIT PAY CAESAR WHAT IS DUE TO HIM. BUT IF YOU BUY OR BUILD ANOTHER SUBJECT TO THE CONDITIONS OF SECTION 54(1), YOU ARE EXEMPT. THE PURPOSE IS PLAIN THE SYMMETRY IS SIMPLE, THE LANGUAGE IS PLAIN. ' THUS THE HON. SUPREME COURT HAS DEFINED THE TERM 'P URCHASE' AS BUYING FOR A PRICE / EQUIVALENT OF PRICE BY PAYMENT IN KIND OR ADJUSTMENT TOWARDS AN OLD DEBT OR FOR OTHER MONETAR Y CONSIDERATION. THE WORD 'PURCHASE' IN SECTION 54 HA S TO BE GIVEN ITS COMMON AND WIDER MEANING. IT SHOULD INCLUDE BUYING OR ADJUSTMENT TOWARDS OLD DEBT OR FOR OTHER MONETARY CONSIDERATIO N. 6. IN THE PRESENT' CASE BEFORE YOUR HONOUR, THE ASS ESSEE HAS PURCHASED/CONSTRUCTED THE NEW RESIDENTIAL PROPERTY AND PAID THE CONSIDERATION EQUIVALENT OF PRICE BY PAYMENT IN KIN D. THEREFORE THE ASSESSEE HAS PURCHASED THE RESIDENTIAL PROPERTY AND IS ENTITLED FOR EXEMPTION U/S.54 OF THE I T.ACT 1961. 9. IT IS CLEAR FROM THE ABOVE THAT RESIDENTIAL HOUS E WAS GIVEN TO THE ASSESSEE IN CONSIDERATION OF THE SALE OF OLD HOUSE. THE SALE CONSIDERATION WAS PARTLY RECEIVED IN CASH AND PARTL Y IN THE FORM OF NEW FLATS TO BE CONSTRUCTED ON THE PLOT OF OLD HOUS E SOLD BY ASSESSEE. THE NEW FLATS AGREED TO BE GIVEN TO ASSESSEE AMOUNT S TO INVESTMENT BY ASSESSEE IN RESIDENTIAL HOUSE. THEREFORE, THE AO WAS NOT JUSTIFIED IN ADDING BACK THE ADDITIONAL CONSIDERATION GIVEN I N THE FORM OF SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 18 ALLOTMENT OF THREE FLATS BY DECLINING CLAIM OF DEDU CTION U/S.54 OF THE I.T.ACT. 10. IN THE PRESENT CASE BEFORE US, THE ASSESSEE HAS PURCHASED/CONSTRUCTED THE NEW RESIDENTIAL PROPERTY AND PAID THE CONSIDERATION EQUIVALENT OF PRICE BY PAYMENT IN KIN D. THEREFORE, THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S.54 OF I.T.AC T, 1961 IN RESPECT OF THESE FLATS. 11. AN ISSUE WAS ALSO RAISED BY THE AO WITH REGARD TO SHARING OF 3 FLATS BETWEEN THE CO-OWNERS OF THE PROPERTY AND THE EXEMPTION U/S.54 ALLOWABLE IN CASE OF INVESTMENT IN ONE RESID ENTIAL FLAT ONLY. IN THIS REGARD, WE FOUND THAT THE DETAILS OF ALLOCATIO N OF AREA OF NEW RESIDENTIAL PROPERTY BETWEEN CO-OWNERS ARE AS FOLLO WS :- NAME RATIO AREA IN SQ.FT. DESCRIPTION MR. PETER S. PEREIRA 77% 2400 FLAT NO.301 & 302 ADJACENT FLATS @ 1200 SQ.FT. EACH ON 3 RD FLOOR AND TWO STILT CAR PARKING SPACE MS VILMA M. PEREIRA 23% 750 FLAT NO.402 ON 4TH FLOOR AND ONE CAR PARKING SPACE THE AFORESAID RATIO OF ALLOCATION BETWEEN CO-OWNERS IS ALREADY ON RECORD OF THE AO AS WELL AS IN THE VALUATION REPORT . FURTHERMORE, THE CO-OWNER WILL GET THE AREA ACCORDING TO THEIR RATIO IN THE NEW RESIDENTIAL PROPERTY. SINCE FLAT NO.301 & 302 ARE S ITUATED IN THE SAME FLOOR AND ADJACENT TO EACH OTHER AND WILL BE T REATED AS ONE SINGLE RESIDENTIAL UNIT FOR THE PURPOSE OF CLAIMING EXEMPTION U/S.54. THE SAME VIEW HAS BEEN TAKEN BY THE SPECIAL BENCH O F THE MUMBAI SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 19 TRIBUNAL IN THE CASE OF ITO VS. MS. SUSHILA M. JHAV ERI, (2007) 292 ITR (AT) 1 (MUMBAI). 12. THE ISSUE RAISED BY THE AO IS ALSO COVERED BY THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF GITA DUGGAL 257 CTR 208, WHEREIN THE HONBLE HIGH COURT HELD AS UNDER:- SEC. 54/54F USES THE EXPRESSION 'A RESIDENTIAL HO USE'. THE EXPRESSION USED IS NOT 'A RESIDENTIAL UNIT'. THIS I S A NEW CONCEPT INTRODUCED BY THE AO INTO THE SECTION. SEC. 54/54F REQUIRES THE ASSESSEE TO ACQUIRE A 'RESIDENTIAL HOUSE' AND SO LO NG AS THE ASSESSEE ACQUIRES A BUILDING, WHICH MAY BE CONSTRUCTED, FOR THE SAKE OF CONVENIENCE, IN SUCH A MANNER AS TO CONSIST OF SEVE RAL UNITS WHICH CAN, IF THE NEED ARISES, BE CONVENIENTLY AND INDEPE NDENTLY USED AS AN INDEPENDENT RESIDENCE, THE REQUIREMENT OF THE SECTI ON SHOULD BE TAKEN TO HAVE BEEN SATISFIED. THERE IS NOTHING IN T HESE SECTIONS WHICH REQUIRE THE RESIDENTIAL HOUSE TO BE CONSTRUCTED IN A PARTICULAR MANNER. THE ONLY REQUIREMENT IS THAT IT SHOULD BE F OR THE RESIDENTIAL USE AND NOT FOR COMMERCIAL USE. IF THERE IS NOTHING IN THE SECTION WHICH REQUIRES THAT THE RESIDENTIAL HOUSE SHOULD BE BUILT IN A PARTICULAR MANNER, IT SEEMS THAT THE IT AUTHORITIES CANNOT INSIST UPON THAT REQUIREMENT. A PERSON MAY CONSTRUCT A HOU SE ACCORDING TO HIS PLANS AND REQUIREMENTS. MOST OF THE HOUSES A RE CONSTRUCTED ACCORDING TO THE NEEDS AND REQUIREMENTS AND EVEN CO MPULSIONS. FOR INSTANCE, A PERSON MAY CONSTRUCT A RESIDENTIAL HOUS E IN SUCH A MANNER THAT HE MAY USE THE GROUND FLOOR FOR HIS OWN RESIDENCE AND LET OUT THE FIRST FLOOR HAVING AN INDEPENDENT ENTRY SO THAT HIS INCOME IS AUGMENTED. IT IS QUITE COMMON TO FIND SUCH ARRAN GEMENTS, PARTICULARLY POST-RETIREMENT. ONE MAY BUILD A HOUSE CONSISTING OF FOUR BEDROOMS (ALL IN THE SAME OR DIFFERENT FLOORS) IN SUCH A MANNER THAT AN INDEPENDENT RESIDENTIAL UNIT CONSISTING OF TWO OR THREE BEDROOMS MAY BE CARVED OUT WITH AN INDEPENDENT ENTR ANCE SO THAT IT CAN BE LET OUT. HE MAY EVEN ARRANGE FOR HIS CHIL DREN AND FAMILY TO STAY THERE, SO THAT THEY ARE NEARBY, AN ARRANGEMENT WHICH CAN BE MUTUALLY SUPPORTIVE. HE MAY CONSTRUCT HIS RESIDENCE IN SUCH A MANNER THAT IN CASE OF A FUTURE NEED HE MAY BE ABLE TO DISPOSE OF A PART THEREOF AS AN INDEPENDENT HOUSE. THERE MAY BE SEVERAL SUCH CONSIDERATIONS FOR A PERSON WHILE CONSTRUCTING A RE SIDENTIAL HOUSE. THE PHYSICAL STRUCTURING OF THE NEW RESIDENTIAL HOU SE, WHETHER IT IS LATERAL OR VERTICAL, SHOULD NOT COME IN THE WAY OF CONSIDERING THE BUILDING AS A RESIDENTIAL HOUSE. THE FACT THAT THE 'RESIDENTIAL HOUSE CONSISTS OF SEVERAL INDEPENDENT UNITS CANNOT BE PER MITTED TO ACT AS AN IMPEDIMENT TO THE ALLOWANCE OF THE DEDUCTION UND ER S.54/54F. IT ISNEITHER EXPRESSLY NOR BY NECESSARY IMPLICATION PR OHIBITED. TRIBUNAL WAS THEREFORE JUSTIFIED IN ALLOWING EXEMPT ION UNDER S.54 IN SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 20 RESPECT OF ENTIRE INVESTMENT IN CONSTRUCTION OF BAS EMENT, GROUND FLOOR, FIRST FLOOR, SECOND FLOOR AND THIRD FLOOR. 13. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THE ACTION OF THE AO FOR DECLINE OF CLAIM OF DEDUCTION U/S.54 IN RESPECT OF RESIDENTIAL FLATS ALLOTTED BY BUILDER IN CONSIDERAT ION OF SALE OF OLD HOUSE. 14. IN THE RESULT, APPEALS OF BOTH THE ASSESSEES AR E ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27TH FEB .2015. 2.2. WE FIND THAT THE TRIBUNAL DELIBERATED THE ISS UE WITH RESPECT TO DECLINING THE CLAIM OF DEDUCTION U/S 54 OF THE ACT AND BY FOLLOWING THE DECISION OF THE SPECIAL BENCH IN THE CASE OF ITO VS MS. SUSHILA M. JHAVERI (2007) 292 ITR (AT) 1 (MUM.) AND ALSO THE DECISION FROM HONBLE DELHI HIGH COURT IN GEETA DUG GAL 257 CTR 208 (DEL.) DECIDED THE CLAIMED DEDUCTION IN FAVOUR OF THE ASSESSEE. WE FURTHER NOTE THAT THE LD. ASSESSING OFFICER IMPO SED PENALTY WITH RESPECT TO CLAIMED DEDUCTION U/S 54 OF THE ACT, THE REFORE, WHEN THE BASIS NO LONGER SURVIVE ON THE BASIS OF WHICH PENAL TY WAS IMPOSED, IN OUR VIEW, PENALTY U/S 271(1)(C) OF THE ACT CANNO T SURVIVE. 2.3. THERE IS NO DISPUTE THAT QUANTUM ADDITION HAS BEEN DELETED BY THE TRIBUNAL, THEREFORE, IN OUR HUMBLE O PINION, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS JUSTIFIED I N DELETING THE PENALTY. OUR VIEW FURTHER FINDS SUPPORT FROM THE DE CISION AND THE RATIO LAID DOWN IN CIT VS S.P VIZ CONSTRUCTION COMP ANY 176 ITR 47 (PATNA) AND K.C. BUILDERS VS ACIT 265 ITR 562 (SUPR EME COURT). WE ARE OF THE VIEW WHERE THE PENALTY FOR CONCEALMENT O R FURNISHING INACCURATE PARTICULARS WAS LEVIED AND AFTER DELETIN G THE QUANTUM ADDITION, THERE REMAINS NO BASIS AT ALL FOR LEVYING THE PENALTY. SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 21 ORDINARILY, PENALTY CANNOT STAND IN ITSELF IF THE A DDITION MADE IN THE ASSESSMENT ITSELF IS SET ASIDE OR CANCELLED BY THE SUPERIOR AUTHORITY/COURT. THE PENALTY CANNOT STAND BY ITSEL F BECAUSE FALSE RESULT MAY BE PRODUCED BY THE FALSITY OF ONE OR MOR E OF THE CONSTITUENT ITEMS IN THE RETURN. THE WORD INACCUR ATE PARTICULARS WOULD COVER FALSITY IN THE FINAL FIGURE AND ALSO TH E CONSTITUENT ELEMENTS OR ITEMS. THEY SIMPLY WOULD MEAN INACCURA TE IN SOME SPECIFIC OR DEFINITE RESPECT WHETHER IN THE CONSTIT UENT OR SUBORDINATE ITEMS OF INCOME OR THE END RESULT. CONCEALMENT OR FURNISHING INACCURATE PARTICULARS IMPLIES SOME DELIBERATE ACT ON THE PART OF THE ASSESSEE IN WITHHOLDING THE TRUE FACTS FROM THE AUT HORITIES. SINCE, THE BASIS OF LEVYING PENALTY REMAINS NO MORE IN EXI STENCE, AFTER DELETION OF QUANTUM ADDITION, THEREFORE, FROM THIS ANGLE, THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS JUSTIFIED. FINALLY, THE APPEAL OF THE REVENUE IS HAVING NO MER IT, THEREFORE, DISMISSED. 2.3. THERE IS NO DISPUTE THAT QUANTUM ADDITION HAS BEEN DELETED BY THE TRIBUNAL, THEREFORE, IN OUR HUMBLE O PINION, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUS TIFIED IN CONFIRMING THE PENALTY. ADMITTEDLY, THE IMPUGNED O RDER IS DATED 07/10/2013, WHEREAS, THE ORDER OF QUANTUM ADD ITION OF THE TRIBUNAL IS DATED 31/07/2015, MEANING THEREBY, THE ORDER OF THE TRIBUNAL WAS EVEN NOT EVEN EXISTENCE. OUR V IEW FURTHER FINDS SUPPORT FROM THE DECISION AND THE RATIO LAID DOWN IN CIT VS S.P VIZ CONSTRUCTION COMPANY 176 ITR 47 (PATNA) AND K.C. BUILDERS VS ACIT 265 ITR 562 (SUPREME COURT). WE AR E OF THE VIEW WHERE THE PENALTY FOR CONCEALMENT OR FURNISHIN G INACCURATE PARTICULARS WAS LEVIED AND AFTER DELETIN G THE QUANTUM ADDITION, THERE REMAINS NO BASIS AT ALL FOR LEVYING THE SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 22 PENALTY. ORDINARILY, PENALTY CANNOT STAND IN ITSEL F IF THE ADDITION MADE IN THE ASSESSMENT ITSELF IS SET ASIDE OR CANCELLED BY THE SUPERIOR AUTHORITY/COURT. THE PENALTY CANNO T STAND BY ITSELF BECAUSE FALSE RESULT MAY BE PRODUCED BY THE FALSITY OF ONE OR MORE OF THE CONSTITUENT ITEMS IN THE RETURN. THE WORD INACCURATE PARTICULARS WOULD COVER FALSITY IN THE FINAL FIGURE AND ALSO THE CONSTITUENT ELEMENTS OR ITEMS. THEY S IMPLY WOULD MEAN INACCURATE IN SOME SPECIFIC OR DEFINITE RESPECT WHETHER IN THE CONSTITUENT OR SUBORDINATE ITEMS OF INCOME OR THE END RESULT. CONCEALMENT OR FURNISHING INACCURA TE PARTICULARS IMPLIES SOME DELIBERATE ACT ON THE PART OF THE ASSESSEE IN WITHHOLDING THE TRUE FACTS FROM THE AUT HORITIES. SINCE, THE BASIS OF LEVYING PENALTY REMAINS NO MORE IN EXISTENCE, AFTER DELETION OF QUANTUM ADDITION, THER EFORE, FROM THIS ANGLE, THE STAND OF THE LD. COMMISSIONER OF IN COME TAX (APPEALS) IS NOT SUSTAINABLE. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 21/10/2015. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % MUMBAI; ( DATED : 21/10/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 1# ( *+ ) / THE CIT, MUMBAI. SMT. NEELA P. DOSHI ITA NO.6859/MUM/2013 23 4. 0 0 1# / CIT(A)- , MUMBAI 5. 3$4 .# , 0 *+' * 5 , % / DR, ITAT, MUMBAI 6. 6! 7% / GUARD FILE. / BY ORDER, /3+# .# //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI.