Pushpa Prabhudas Bajaj, Ahmedabad V. The Income tax Officer,Ward-2(2), Ahmedabad

ITA 752/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80297 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 20-08-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 09-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B KULSHRESTHA
• Keywords: Gift
• Section: 143(3)

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD .., ! ! ! ! ' #$, BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER !./ I.T.A. NO.752/AHD/2011 ( & '& & '& & '& & '& / / / / ASSESSMENT YEAR : 2004-05) PUSHPA PRABHUDAS BAJAJ C/O. M/S.MAHESHKUMAR 2820/1, HASIJA HOUSE SAKAR BAZAR AHMEDABAD-380 001 / VS. THE ITO WARD-2(2) AHMEDABAD ( !./)* !./ PAN/GIR NO. : AARPB 8223 F ( (+ / // / APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . / APPELLANT BY : MS.URVASHI SHODHAN, AR ,-(+ / . / RESPONDENT BY : SHRI B.KULSHRESTHA, SR.DR ' 0 / $1 / / / / DATE OF HEARING 20/08/2014 23' / $1 / DATE OF PRONOUNCEMENT 28/08/2014 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XVI, AHMEDAB AD (CIT(A) IN SHORT) DATED 11/2/2011 PERTAINING TO ASSESSMENT YEAR (AY) 2004-05. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF A PPEAL:- 1. THE LD.COMMISSIONER OF INCOME TAX (APPEALS)-XVI, AH MEDABAD [HEREINAFTER REFERRED TO AS CIT(A)] HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY U/S.271(1)(C ) OF ` 90,000/- WHICH IS BAD IN LAW, BEING TIME BARRED AS HAS BEEN PASSED IN TOTAL ITA NO.752/AHD/ 2011 PUSHPA PRABHUDAS BAJAJ VS. ITO ASST.YEAR 2004-05 - 2 - DISREGARD OF THE PROVISO TO SECTION 275(1)(A) INSER TED W.E.F.01-06- 2003. 2. WITHOUT PREJUDICE TO THE FIRST GROUND OF APPEAL, TH E LD.CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY U/S.271(1)(C) OF ` 90,000/- IN TOTAL DISREGARD OF THE FACTS OF THE CASE AD LAW SETTLED BY THE APEX COURT IN THE CASE O F SURESHCHANDRA MITTAL (251 ITR 9). 3. THE LD.DCIT HAS GROSSLY ERRED IN LAW AND ON FACTS I N CONFIRMING THE PENALTY OF ` 90,000/- U/S.271(1)(C) OF THE ACT WITHOUT ESTABLISHING THAT THE GIFTS OF ` 3,00,000/- ADMITTED BY THE APPELLANT IS ITS CONCEALED INCOME. 4. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AMEND, MODIFY, SUBSTITUTE, CHANGE ANY OF THE GROUNDS AS AND WHEN T HE OCCASION MAY ARISE. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) R.W.S.254 OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS TH E ACT) WAS FRAMED VIDE ORDER DATED 13.11.2009, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE ADDITION OF RS.6 LACS ON ACCOUNT OF UNEXPLAINE D GIFT. AGAINST THIS, THE ASSESSEE FILED AN APPEAL AND MATTER TRAVELED UP TO THE STAGE OF TRIBUNAL AND THE TRIBUNAL (ITAT A BENCH AHMEDABAD) IN ITA NOS.273/AHD/2008 FOR AY 2004-05 IN ASSESSEES OWN C ASE VIDE ORDER DATED 30/05/2008 RESTORED THE APPEAL TO THE FILE OF AO FOR FRESH DECISION. THE AO PASSED ORDER U/S.143(3) R.W.S.254 OF THE ACT ON 13.11.2009, THEREBY THE ADDITION OF RS.3 LACS WAS DELETED AND B ALANCE AMOUNT OF RS.3 LACS WAS SUSTAINED. THE AO HAS ALSO INITIATED PENALTY PROCEEDINGS IN RESPECT OF THE SUSTAINED ADDITION OF RS.3 LACS. THE PENALTY ORDER WAS PASSED ON 11/5/2010, THEREBY THE AO LEVIED A PENALT Y OF RS.90,000/-. ITA NO.752/AHD/ 2011 PUSHPA PRABHUDAS BAJAJ VS. ITO ASST.YEAR 2004-05 - 3 - AGAINST THIS, THE ASSESSEE FILED AN APPEAL BEFORE T HE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS DISMISSED THE APPEAL. 3. THE FIRST GROUND IS WITH REGARD TO THE PENALTY O RDER BEING BARRED BY TIME. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED TH AT THE PENALTY ORDER AS PASSED BY THE AO IS BARRED BY TIME IN VIEW OF THE P ROVISIONS OF SECTION 275(1)(A) OF THE ACT. 3.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ORDER IS WELL WITHIN T HE TIME. HE SUBMITTED THAT THE MATTER WAS RESTORED TO THE FILE OF THE AO BY THE TRIBUNAL VIDE ORDER DATED 30/05/2008(SUPRA) AND THE ORDER U/S.143 (3) R.W.S. 254 WAS PASSED ON 13/11/2009. HE SUBMITTED THAT THE ORDER IS WITHIN THE PRESCRIBED TIME. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) IN PARA-4.1 OF HIS ORDER HAS GIVEN FINDING AS UNDER:- 4.1. I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPELLANT & OBSERVATION OF A.O. AS REGARD ISSUE OF TIME BARRING IS CONCERNED THE ARGUMENT OF APPELLANT IS TOTALLY WRONG. THE ITATS ORDER IS DATED 30- 05-2008 SETTING ASIDE THE CASE TO THE FILE OF A.O. THE A.O. PASSED THE ORDER U/S.143(3) READ WITH RULE 254 ON 31-1-2009 AN D THEREFORE THE PENALTY ORDER DATED 11-5-2010 IS WITHIN SIX MONTH O F THE END OF THE MONTH IN WHICH ORDER U/S.143(3) R.W.S. 254 IS PASSE D. 4.1. THE AFORESAID FINDING OF THE LD.CIT(A) IS CON TRARY TO THE RECORD WITH REGARD TO DATE OF ASSESSMENT ORDER, HOWEVER TH IS MAY BE A ITA NO.752/AHD/ 2011 PUSHPA PRABHUDAS BAJAJ VS. ITO ASST.YEAR 2004-05 - 4 - TYPOGRAPHICAL ERROR. NOW, WE HAVE TO EXAMINE WHETH ER THE PENALTY ORDER IS BARRED BY TIME. IN QUANTUM PROCEEDINGS, THE MAT TER TRAVELED UPTO THE TRIBUNAL AND THIS TRIBUNAL RESTORED THE ISSUE FOR F RESH DECISION. IN PURSUANCE TO THE ORDER OF THIS TRIBUNAL AN ORDER UN DER SECTION 143(3) OF THE ACT R.W.S.254 OF THE ACT WAS PASSED ON 13.11.20 09, WHEREBY THE IMPUGNED PENALTY PROCEEDING WERE INITIATED. UNDISP UTED FACT REMAINS THAT AGAINST THIS NO APPEAL HAS BEEN PREFERRED. TH EREFORE, IN OUR CONSIDERED VIEW, THE PROVISIONS OF SECTION 275(1)(A ) WOULD NOT APPLY BUT SECTION 275(1)(C) WOULD BE APPLICABLE. SECTION 275 (1)(C) IS REPRODUCED AS UNDER:- SECTION :271(1)(C) IN ANY OTHER CASE, AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COU RSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITI ATED, ARE COMPETED, OR SIX MONTHS FROM THE END OF THE MONTH I N WHICH ACTION FOR IMPOSITION OF PENALTY IS INITIATED, WHICHEVER P ERIOD EXPIRES LATER. 4.2. IN THE GIVEN CASE, THE PROCEEDINGS FOR IMPOSIT ION OF PENALTY HAS BEEN INITIATED ON 13.11.2009. THEREFORE, THE PENA LTY SHOULD HAVE IMPOSED EITHER ON 30.3.2010 BUT NOT LATER THAN 30.5 .2010. THE PENALTY ORDER HAS BEE PASSED ON 11.5.2010 WELL WITHIN THE P RESCRIBED TIME. THEREFORE, WE DO NOT FIND ANY MERIT IN THIS GROUND OF ASSESSEES APPEAL, SAME IS HEREBY REJECTED. 5. GROUND NO.2 IS AGAINST THE CONFIRMATION OF PENAL TY AMOUNTING TO RS.90,000/-. THE LD.COUNSEL FOR THE ASSESSEE SUBMI TTED THAT ALL ADDRESSES OF THE DONORS, CONFIRMATION FROM THE DONORS WERE SU PPLIED TO THE AO BUT ITA NO.752/AHD/ 2011 PUSHPA PRABHUDAS BAJAJ VS. ITO ASST.YEAR 2004-05 - 5 - THE AO PROCEEDED TO MAKE ADDITION ON THE BASIS OF C ONJECTURES AND SURMISES. SHE SUBMITTED THAT THE AO DID NOT SUMM ON THE OTHER DONORS EXCEPT ONE DONOR WHOSE STATEMENT WAS RECORDED BY TH E AO. SHE FURTHER SUBMITTED THAT THE ASSESSEE DID NOT PREFER THE APPE AL AND PAID ALL THE TAXES JUST TO BUY PEACE OF MIND AND IT WAS CATEGORICALLY SUBMITTED BEFORE THE ASSESSING AUTHORITY THAT THE ASSESSEE IS MAKING PAY MENT OF TAXES JUST TO BUY PEACE OF MIND AND TO AVOID PROLONGED LITIGATION . 5.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE FAILED TO DIS CHARGE THE ONUS THAT THE TRANSACTION WAS GENUINE AS WELL AS THE CREDITWO RTHINESS OF THE DONORS. SHE SUBMITTED THAT ONE OF THE DONORS PRODUCED BY TH E ASSESSEE STATED THAT HE HAD NOT GIVEN ANY GIFT TO THE ASSESSEE AND HE WA S NOT HAVING SUFFICIENT FUND TO GIVE SUCH GIFT. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE AO HAS MADE ADDITION ON THE BASIS THAT THE ASSESSEE COULD NOT PRODUCE THE OTHER DONORS EXCEPT ONE SHRI CHIRAG RAJNIKANT BHAVSAR WHO HAS CATEGORICALLY STATED THAT HE HAD NO T GIVEN ANY GIFT TO THE ASSESSEE AND HE WAS NOT IN A POSITION TO GIVE THE G IFT AND IT WAS THE ASSESSEES MONEY WHICH DEPOSITED INTO THE BANK ACCO UNT. HOWEVER, THE OTHER DONORS WERE NOT EXAMINED BY THE AO. UNDER TH ESE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN LEVYING TH E PENALTY IN RESPECT OF THE OTHER AMOUNT OF RS.2 LACS. HENCE, THE PENALTY LEVIED ON ADDITION OF ITA NO.752/AHD/ 2011 PUSHPA PRABHUDAS BAJAJ VS. ITO ASST.YEAR 2004-05 - 6 - RS.2 LACS IS HEREBY DELETED. THUS, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 28/ 08 /2014 71.., .../ T.C. NAIR, SR. PS 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. !! $ ': / CONCERNED CIT 4. ':() / THE CIT(A)-XVI 5. 8 #; ,$ , , / DR, ITAT, AHMEDABAD 6. ;<& =0 / GUARD FILE. 4' 4' 4' 4' / BY ORDER, -8$ ,$ //TRUE COPY// > >> >/ // / !) !) !) !) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..25.8.14 (DICTATION-PAD 10-PAG ES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..25.8.14 OTHER MEMBER... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BAC K TO THE SR.P.S./P.S. 28.8.14 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28.8.14 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER