RAJ KUMAR JAIN, Kishangarh V. ITO, Kishangarh

ITA 787/JPR/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5400 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 05-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJ MEHRA J DHK
• Keywords: Unexplained cash credit; Gift; Difference of opinion; Agreed addition
• Section: 68; 27

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 787/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 SHRI RAJ KUMAR JAIN KUNDANAM MAHESHWARI COLONY MADANGANJ, KISHANGARH CUKE VS. THE ITO KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAOPJ 8380 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY :SHRI MANISH AGARWAL FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJ MEHRA, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16/02/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 15/04/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), AJMER; DATED 10-08-2015 FOR THE ASSESSMENT YEAR 2005-06 WHEREIN THE ASSESSEE HAS RAISED THE SOLITARY GROUND AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE PENA LTY OF RS. 2,13,109/- LEVIED U/S 271(1)( C) OF THE I.T. ACT, 1 961 1.1 THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE PENALTY LEVIED U/S 271(1)( C) OF THE ACT WITHOUT APPRECIATI NG THE FACT THAT THE AMOUNT OF RS. 1.40 LACS WAS VOLUNTARILY SU RRENDERED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PRO CEEDINGS ITA NO.787/JP/2015 SHRI RAJ KUMAR JAIN, MADANGANJ VS. ITO,KISHANGAR H . 2 AND THE INCOME WAS OFFERED SUO-MOTO TO BUY THE PEAC E OF MIND AND TO AVOID PROLONGED LITIGATION. THUS UPHOLD ING THE PENALTY SO LEVIED DESERVES TO BE DELETED. 1.2 THAT THE ASSESSEE HAS VOLUNTARILY SURRENDERED T HE INCOME AND PAID THE DUE TAX THEREON THUS THERE REMA INED NO INCOME ON WHICH TAX SOUGHT TO BE EVADED COULD BE CA LCULATED WHICH FACT WAS NOT APPRECIATED BY THE LD. CIT(A). 1.3 THE LD. CIT(A) HAS ERRED IN UPHOLDING PENALTY U /S 271(1)(C )ON THE ADDITION SUSTAINED ON ACCOUNT OF UNEXPLAINED GIFT OF RS. 5.00 LACS WITHOUT APPRECIAT ING THE FACT THAT DURING THE COURSE OF ASSESSMENT PROCEEDIN GS THE ASSESSEE HAD FURNISHED COMPLETE DETAILS REGARDING T HE GIFT RECEIVED IN FORM OF COPY OF GIFT DEED, COPY OF I.T. RETURN, WEALTH TAX RETURN, BALANCE SHEET ETC. TO PROVE THE GENUINENESS OF THE TRANSACTION AND FURTHER AMOUNT OF GIFTS WAS DULY DISCLOSED BY ASSESSEE IN THE RETURN OF INCOME FILED , THEREFORE, THE ASSESSEE NEITHER FURNISHED INACCURATE PARTICULA RS OF INCOME NOR CONCEALED ANY INCOME, THUS UPHOLDING THE PENALTY SO LEVIED DESERVES TO BE DELETED. 1.4 THAT THE PENALTY U/S 271(1) HAS BEEN IMPOSED AND CONFIRMED BY THE LD. CIT(A) WITHOUT APPRECIATING TH E FACT THAT THE AO IMPOSED THE PENALTY BY SOLELY RELYING U PON THE CONCLUSION DRAWN IN ASSESSMENT PROCEEDINGS WITHOUT MAKING INDEPENDENT ENQUIRIES IN PENALTY PROCEEDINGS WHEN T HE PENALTY PROCEEDINGS ARE SEPARATE AND INDEPENDENT PROCEEDINGS, THUS THE AO HAS MISERABLY FAILED TO DI SCHARGE THE ONUS LIES UPON HIM AND THE CONSEQUENT ORDER OF LEVY OF PENALTY BEING PASSED WITH INDEPENDENT APPLICATION O F MIND DESERVES TO BE HELD ILLEGAL AND BAD IN LAW AND CONS EQUENTLY THE PENALTY LEVIED DESERVES TO BE DELETED. 2.1 APROPOS GROUND NO. 1 TO 1.4 THE ASSESSEE HAS CH ALLENGED THE ACTION OF THE AO IN IMPOSING THE PENALTY OF RS. 2,1 3,109/- U/S 271(1)( C) OF THE ACT WITHOUT ESTABLISHING THE CONCEALMENT OF INCOME OR FURNISHING ITA NO.787/JP/2015 SHRI RAJ KUMAR JAIN, MADANGANJ VS. ITO,KISHANGAR H . 3 OF INACCURATE PARTICULARS OF INCOME ON THE PART OF THE ASSESSEE. THE PENALTY HAS BEEN LEVIED ON ACCOUNT OF THE FOLLOWING ADDITIONS MADE IN THE ASSESSMENT ORDER AND SUSTAINED BY THE APPELLATE AUT HORITIES. 1. ADDITION ON ACCOUNT OF SUNDRY CREDITORS RS. 1,40 ,000/- 2. ADDITION ON ACCOUNT OF ALLEGED UNVERIFIABLE GIF TS RS. 5,00,000/- 3. DISALLOWANCE OF INTEREST RS. 1,32,430/- THE LD. AR OF THE ASSESSEE CONTENDS THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO REQUIRED THE ASSESSEE TO SUBMIT CONFIRMATION OF THE CONCERNED PARTIES. HOWEVER, DESPITE BEST EFFORTS ON THE PART OF THE ASSESSEE, THE SAME COULD NOT BE OBTAINED AND CONFIR MATIONS WERE NOT SUPPLIED BY THE CONCERNED PARTIES FOR THE REASONS B EST KNOWN TO THEM. THEREFORE, IN ORDER TO PURCHASE PEACE OF MIND AND T O AVOID PROTRACTED LITIGATION, THE ASSESSEE VOLUNTARILY SURRENDERED TH E AMOUNT OF RS. 1.40 LACS SHOWN AS SUNDRY CREDITORS FOR TAXATION. ACCORDINGLY , THE SAME WAS TREATED BY THE AO UNEXPLAINED CASH CREDITS OF ASSESSEE U/S 68 OF THE I.T. ACT. THEREAFTER THE AO PROPOSED TO IMPOSE PENALTY U/S 27 1(1)( C) OF THE ACT ON ACCOUNT OF THIS ADDITION BY ALLEGING THAT THE A SSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. THE ASSESSEE HAS FULLY AND TRULY DECLARED ALL THE PARTICULARS PERTAINING TO HIS INCOME AND NO PARTICULAR HAS BEEN WRONGLY FURNISHED NOR HAS ANY INCOME BEEN CONCEALED . MERELY BECAUSE THE ASSESSEE COULD NOT FURNISH CONFIRMATION FROM TH E SAID PARTIES, IT DOES ITA NO.787/JP/2015 SHRI RAJ KUMAR JAIN, MADANGANJ VS. ITO,KISHANGAR H . 4 NOT AUTOMATICALLY LEAD TO THE CONCLUSION THAT THE A SSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. IT IS PERTINENT T O MENTION HERE THAT THE EXPLANATION FURNISHED BY ASSESSEE DURING THE COURSE OF PENALTY PROCEEDINGS WAS NOT FOUND TO BE FALSE BY THE AO AND THE ONLY SHORTCOMING ON PART OF ASSESSEE IS THAT HE COULD NO T SUBSTANTIATE HIS EXPLANATION BY FURNISHING CONFIRMATIONS FROM THE CR EDITORS. THUS, WHEN THE EXPLANATION FURNISHED BY ASSESSEE WAS NOT FOUND TO BE FALSE, NO PENALTY U/S 271(1)(C) CAN BE LEVIED. THE LD. AR CON TENDS THAT DESPITE THE BEST EFFORTS, THE ASSESSEE COULD NOT OBTAIN THE CON FIRMATIONS FROM THE CONCERNED PARTIES, THEREFORE IN ORDER TO AVOID PROL ONGED LITIGATION AND TO BUY THE PEACE OF MIND HAD OFFERED THE AMOUNT FOR TA XATION. IT IS NOT THE CASE THAT AFTER IN DEPTH EXAMINATION AND BY BRINGIN G ALL THE CONTRARY EVIDENCES, THE ASSESSEE WAS CORNERED AND THE ASSESS EE WAS COMPELLED TO SURRENDER THE AMOUNT. THE LD. AR RELIED ON ITAT JAI PUR BENCH IN THE CASE OF SMT. DURGA DEVI SOMANI IN ITA NO. 672/JP/20 11 DATED 31-01- 2014 WHEREIN THE TRIBUNAL HAS OBSERVED IN PARA 2.11 AT PAGES 17 TO 19 AS UNDER:- 2.11 WE HAVE HEARD THE RIVAL CONTENTIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE ARE INCLINED TO DELETE THE PENALTY ON FOLLOWING REASONS:- I. IT CLEARLY EMERGES THAT THE AMOUNTS IN QUESTION WERE CARRIED OVER TRADE CREDITS FROM EARLIER YEAR, CORRESPONDING PURCHASES WERE INCLUDED IN TRADING A/C THUS LEGALLY SPEAKING IF TRADE CREDITS ARE ADDED AS CESSATION ITA NO.787/JP/2015 SHRI RAJ KUMAR JAIN, MADANGANJ VS. ITO,KISHANGAR H . 5 OF LIABILITY, THE RELEVANT ENTRIES EXIST IN BOOKS A ND IF THEY ARE HELD AS BOGUS THEN THEY BELONG TO EARLIER YEARS. BESIDES RE LEVANT INFORMATION IS FURNISHED ALONG WITH RETURN OF INCOME. II. THOUGH SURRENDERED IN ASSESSMENT THE ASSESSEE CAN TAKE FRESH PLEAS IN THE PENALTY PROCEEDINGS WHICH BY SETTLED LAW ARE DI STINCT AND SEPARATE. ASSESSEE CAN MAKE FRESH SUBMISSIONS AND LEAD FRESH EVIDENCE. AO CAN MAKE FRESH INVESTIGATIONS ON THE BASIS OF NEW PLEAS AND MATERIAL. THUS WHEN SURRENDER IS TECHNICALLY REJECTED AND ASSESSEE GIVES REASONABLE EXPLANATION, PENALTY CAN BE IMPOSED NOT ON THE SOLE BASIS OF ALLEGED REFUSED SURRENDER. AO HAS A DUTY TO CONSIDER THE M ATERIAL AND SUBMISSION OF THE ASSESSEE AND DECIDE WHETHER INCOM E ON THE BASIS OF THESE PLEAS WAS ASSESSABLE IN THE YEAR IN QUESTION. III. AO HAS HELD THAT THE SURRENDER IS NOT ACCEPT ABLE AND CHOSE TO ADD IT U/S 41(1) OF THE ACT. THUS TECHNICALLY EVEN THE SURREND ER IS NOT ACCEPTED AND UNILATERAL CESSATION OF LIABLE IS ASSUMED IGNORING THE PLEA THAT IN SUBSEQUENT YEARS TRADING LIABILITY AMOUNTS WERE PAI D IV. THE MAK DATA JUDGMENT RELIED BY LD DR ALSO HO LDS THAT PENALTY CANNOT BE DELETED MERELY HOLDING THAT ASSESSES VOLUNTARILY SURRENDERED THE INCOME. THERE IS NO SUCH IMMUNITY AND IT IS THE EXP LANATION WHICH SHOULD BE CONSIDERED FOR PENALTY. IN THAT CASE ASSESSEE DI D NOT OFFER ANY EXPLANATION EXCEPT A SPECIOUS PLEA OF VOLUNTARY SUR RENDER, WHICH ALSO ON FACTS WAS FOUND TO BE NOT VOLUNTARY. THUS IN MAK DA TA CASE ALSO HONBLE SUPREME COURT DID NOT DISPENSE WITH THE CONSIDERATI ON OF EXPLANATION OF THE ASSESSEE AND DETERMINATION OF IMPOSITION ON ME RITS. V. THE DETAILS ABOUT TRADING LIABILITIES AND TRAN SACTIONS WERE REFLECTED IN THE ACCOUNTING STATEMENTS WHICH WERE PART OF THE RE TURN OF INCOME. HONBLE SUPREME COURT IN RELIANCE PETRO PRODUCTS CA SE (SUPRA) HAS HELD THAT IF THE RELEVANT INFORMATION IS FILED WITH THE RETURN OF INCOME IN THAT CASE ANY VARIATION IN THE CLAIMS OF THE ASSESSEE WI LL NOT ENTAIL PENALTY. THIS JUDGMENT ALSO SUPPORTS THE CASE OF THE ASSESSE E, IN VIEW THEREOF ALSO THE PENALTY IN THIS CASE CAN NOT BE IMPOSED BY MERE LY REFERRING TO THE ALLEGED SURRENDER AND WITHOUT CONSIDERING THE EXPLA NATION. VI. ASSUMING WORST AGAINST ASSESSEE, PENALTY PROC EEDINGS BEING SEPARATE AND DISTINCT THE YEAR OF TAXABILITY CAN BE DETERMIN ED DURING PENALTY PROCEEDINGS. LOOKING FROM THIS ANGLE THE AMOUNT WHI CH AT ALL MAY BE CONSIDERED FOR PENALTY ARE TRANSACTIONS OF THIS YEA R WHICH ARE RS.. 2,45,000/- AND RS. 3,58,141/-. THESE ALSO IN OUR VIEW ARE NOT LIABLE FOR PENALTY AS ALL THE RELEVANT PARTICULARS ARE FIL ED ALONG WITH THE RETURN. THUS, IN CONSIDERATION OF ENTIRETY OF FACTS, CIRCU MSTANCES AND CASE LAWS AS RELIED ON BY ASSESSEE, WE ARE OF THE VIEW THAT IT I S NOT A FIT CASE OF IMPOSITION OF PENALTY U/S 271(1)(C)OF THE ACT . THEREFORE, WE DIR ECT TO DELETE THE PENALTY ITA NO.787/JP/2015 SHRI RAJ KUMAR JAIN, MADANGANJ VS. ITO,KISHANGAR H . 6 2.2 THE LD. AR OF THE ASSESSEE RELIED ON THE ITAT JAIPU R DECISION IN THE CASE OF SHRI ASHOK KUMAR KAMDAR IN ITA NO. 684/ JP/2011 (SMC) WHEREIN THE BENCH HAS OBSERVED AS UNDER:- A FTER CONSIDERING THE ORDER OF LD. CIT(A) AND WRITT EN SUBMISSION FILED ON BEHALF OF ASSESSEE, I FOUND THAT ASSESSEE DESERVE TO SUCCEED IN HIS APPEAL. IT IS SEEN THAT THERE WAS A CREDIT BALANCE OF RS. 1,93,160/- IN THE NAME OF JAGANNATH TRADERS AS OPENING BALANCE. THE ASSESS EE SURRENDERED THIS AMOUNT ON ACCOUNT OF DIFFERENCE IN ACCOUNTS OF BOTH THE PARTIES I.E. ASSESSEE AND JAGANNATH TRADERS. TO BUY PIECE AND TO AVOID LI TIGATION ASSESSEE SURRENDERED THIS AMOUNT FOR TAXATION. IT IS FURTHER SEEN THAT THE AMOUNT OF DIFFERENCE HAS BEEN PAID BY THE ASSESSEE IN SUBSEQU ENT YEAR. THEREFORE IT CANNOT BE SAID THAT ASSESSEE HAS FURNISHED IN-ACCUR ATE PARTICULAR FOR CONCEALING ANY INCOME. ACCORDINGLY, I HOLD THAT NO PENALTY IS LEVIABLE ON THIS AMOUNT. IT IS ALSO SEEN THAT THE AMOUNT COMING FROM EARLY YEAR AS THE SAME WAS SHOWN AS OPENING BALANCE, THEREFORE, FOR THIS R EASON ALSO NO PENALTY IS LEVIABLE IN THE YEAR CONSIDERING IN VIEW OF THE A BOVE FACTS AND CIRCUMSTANCES, I CANCELLED THE LEVY OF PENALTY . 2.3 APROPOS FOLLOWING GIFTS RECEIVED BY THE ASSESSE E FROM TWO PARTIES. 1. SHRI SURESH KUMAR JAIN RS. 2.50 LACS 2. SHRI PAWAN KUMAR JAIN RS. 2.50 LACS 2.4 THE ASSESSEE SUBMITTED FOLLOWING DOCUMENTS BEFO RE THE AO. 1. COPY OF GIFT DEEDS 2. COPY OF AFFIDAVITS 3. COPY OF PAN CARD 4. COPY OF INCOME TAX RETURN 5. COPY OF WEALTH TAX RETURN 6. COPY OF BALANCE SHEET 7. COPY OF RATION CARD THE LD. AR OF THE ASSESSEE FURTHER SUBMITTED THAT T HE GIFTS WERE RECEIVED THROUGH BANK DRAFTS AND THUS, GENUINENESS THEREOF C OULD NOT HAVE BEEN DOUBTED BY THE AO. THE ABOVE EVIDENCES SUBMITTED BE FORE THE AO DURING ITA NO.787/JP/2015 SHRI RAJ KUMAR JAIN, MADANGANJ VS. ITO,KISHANGAR H . 7 THE COURSE OF ASSESSMENT PROCEEDINGS ARE SUFFICIENT ENOUGH TO ESTABLISH IDENTITY / CREDITWORTHINESS OF CREDITORS AND GENUIN ENESS OF THE TRANSACTION. THEREFORE, THE ASSESSEE HAD DISCHARGED THE ONUS CA ST UPON HIM U/S 68 OF THE ACT AND THE AFORESAID GIFTS COULD NOT HAVE BEEN TREATED AS UNEXPLAINED CASH CREDITS. HOWEVER, THE AO HAS COMPLETELY BRUSHE D ASIDE THE AMPLE EVIDENCES SUBMITTED BEFORE HIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND HAS MADE ADDITION U/S 68 MERELY BEC AUSE THE DONORS COULD NOT BE PRODUCED AND THEIR BANK STATEMENTS COU LD NOT BE PRODUCED. ALL THE ABOVE FACTS REVEAL THAT THE ASSESSEE HAS FU RNISHED ALL THE RELEVANT PARTICULARS FULLY AND TRULY IN THE RETURN OF INCOME ALONGWITH NECESSARY EVIDENCES TO ESTABLISH THE IDENTITY AND CREDITWORTH INESS OF THE DONORS AND GENUINENESS OF THE GIFTS. MERELY BECAUSE THE AO HEL D THE DIFFERENCE OF OPINION OR ON EVIDENTIARY VALUE OF THE SUPPORTED MA TERIAL, SUCH DIFFERENCE OF OPINION DO NOT LEAD IPSO FACTO LEAD TO IMPOSITIO N OF PENALTY. THE PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT AND I T CANNOT BE IMPOSED MERELY BECAUSE THE ADDITION HAS BEEN CONFIRMED. THE LD. AR RELIED ON THE JUDGEMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN T HE CASE OF GOSWAMI SMT.CHANDRALATA 125 ITR 700 WHEREIN IT IS OBSERVED AS UNDER:- IT IS UNDISPUTED THAT PENALTY PROCEEDINGS ARE SEPA RATE AND DISTINCT FROM ASSESSMENT PROCEEDINGS. FINDINGS IN QUANTUM P ROCEEDINGS THOUGH RELEVANT AND ADMISSIBLE, THEY CANNOT OPERATE AS RES -JUDICATA. PENALTY IS NOT A ITA NO.787/JP/2015 SHRI RAJ KUMAR JAIN, MADANGANJ VS. ITO,KISHANGAR H . 8 MATTER OF COURSE AND IT IS NOT ATTRACTED AUTOMATICA LLY SIMPLY BECAUSE THE ADDITION HAVE BEEN SUSTAINED IN QUANTUM PROCEEDINGS . THE LD. AR FURTHER RELIED ON THE JUDGEMENT OF HON'B LE GUJARAT HIGH COURT IN THE CASE OF NATIONAL TEXTILES VS. CIT 249 ITR 125 WHEREIN IT IS HELD THAT PROVISIONS OF SECTION 68 PERMITS THE AO TO PROVE T HE UNEXPLAINED CASH CREDITS AS INCOME FOR MAKING CERTA IN ADDITIONS IF THERE IS FAILURE BY THE ASSESSEE TO GIVE AN EXPLANA TION. HOWEVER, THE ADDITION MADE ON THIS COUNT AUTOMATICALLY CANNOT JU STIFY THE PENALTY LEVIED U/S 271(1)(C). HON'BLE HIGH COURT FURTHER H ELD THAT FOR LEVY OF PENALTY U/S 271(1)(C) TWO FACTORS MUST CO-EXIST ( I) THERE MUST BE SOME MATERIAL OR CIRCUMSTANCES LEADING TO THE REASO NABLE CONCLUSION THAT THE AMOUNT DOES REPRESENT THE ASSESSEES INCOM E. IT IS NOT ENOUGH FOR THE PURPOSE OF PENALTY THAT THE AMOUNT H AS BEEN ASSESSED AS INCOME AND (II) THE CIRCUMSTANCES MUST SHOW THAT THERE WAS ANIMUS, I.E. CONSCIOUS CONCEALMENT OR ACT OF FURNIS HING OF INACCURATE PARTICULARS ON THE PART OF THE ASSESSEE. EXPLANATIO N 1 TO SECTION 271(1)(C) HAS NO BEARING ON FACTOR NO. 1 BUT HAS A BEARING ONLY ON FACTOR NO. 2. THE EXPLANATION DOES NOT MAKE THE ASS ESSMENT ORDER CONCLUSIVE EVIDENCE THAT THE AMOUNT ASSESSED WAS IN FACT THE INCOME OF THE ASSESSEE. NO PENALTY CAN BE IMPOSED IF THE F ACTS AND CIRCUMSTANCES ARE EQUALLY CONSISTENT WITH THE HYPOT HESIS THAT THE ITA NO.787/JP/2015 SHRI RAJ KUMAR JAIN, MADANGANJ VS. ITO,KISHANGAR H . 9 AMOUNT DOES NOT REPRESENT CONCEALED INCOME WITH THE HYPOTHESIS THAT IT DOES. IF THE ASSESSEE GIVES AN EXPLANATION WHICH IS UNPROVED BUT NO DISPROVED I.E. IT IS NOT ACCEPTED BUT CIRCUMSTANCES DO NOT LEAD TO THE REASONABLE AND POSITIVE INFERENCE THAT THE ASSESSEE S CASE IS FALSE, THE EXPLANATION CANNOT HELP THE DEPARTMENT BECAUSE THER E WILL BE NO MATERIAL TO SHOW THAT THE AMOUNT IN QUESTION WAS TH E INCOME OF THE ASSESSEE. IT IS FURTHER CONTENDED THAT ALL THE RELE VANT PARTICULARS WERE FILED ALONGWITH RETURN OF INCOME AND MERELY BECAUSE THE ASSESSEE'S CLAIM IS NOT ACCEPTED AND IT CANNOT LEAD IMPOSITION OF PENALTY. THE LD. AR FURTHER RELIED ON FOLLOWING CASE LAWS. 1. G. RAMKUMAR VS. DCIT (CHENNAI) 47 DTR 417 2. CIT VS. VASANT K HANDIGUND (KAR.) 327 ITR 233 3. CIT VS. RELIANCE PETROPRODUCTS (P) LTD. 36 DTR 449 (SC) 4. CIT VS. ABRIL PHARMACEUTICAL (P) LTD. 70 ITD 206 (I NDORE) 5. ITO VS. GURCHARAN SINGH & CO. 72 TTJ 774 (CHD.) 6. CIT VS. ASHOK TAKER 170 TAXMAN 471 (TAXMAN) 7. CIT VS. HARYANA WAREHOUSING CORPORATION (ITA NO. 87 1 OF 2008 (P&H) 8. ACIT VS. MAL ELECTRODES (P) LTD. (2010) 127 TTJ 599 (NAG.) 9. ADDL. CIT VS. AGARWAL MISTHAN BHANDAR, 131 ITR 619 (RAJ.) 10. CIT VS. SURESH CHAND MITTAL, 251 ITR 9 (SC). 2.5 THE LD. DR SUPPORTED THE ORDER OF THE LOWER AU THORITIES. 2.6 APROPOS ADDITION OF SUNDRY CREDITORS AMOUNTING TO RS. 1.40 LACS, IT HAS NOT BEEN DISPUTED THAT THE AMOUNT REPR ESENTED SUNDRY CREDITORS. DUE TO LAPSE OF TIME, THE ASSESSEE COULD NOT FILE THE ITA NO.787/JP/2015 SHRI RAJ KUMAR JAIN, MADANGANJ VS. ITO,KISHANGAR H . 10 CONFIRMATIONS AND TO AVOID COMPLICATIONS, ACCEPTED THE SAME AS ITS INCOME. IN RESPECT OF AGREED ADDITIONS, QUA SUNDRY CREDITOR, ITAT JAIPUR BENCH IN THE CASE OF SMT. DURGA DEVI SOMANI (SUPRA) HAS DELETED THE PENALTY. THE RELEVANT EXTRACT OF THE OR DER IS REPRODUCED HEREINABOVE. THUS RELYING ON THE CASE OF SMT. DURG A DEVI SOMANI (ITA NO. 672/JP/2011) , SHRI ASHISH GUPTA (ITA NO. 671/JP/2011) AND SHRI ASHOK KUMAR KAMDAR (ITA NO. 684/JP/2011), QUA PENALTY AMOUNTING TO RS. 1.40 LACS IS DELETED. 2.7 APROPOS TWO GIFTS IN QUESTION, THE ASSESSEE HAS PRODUCED ALL THE RELEVANT SUPPORTED EVIDENCES IN THE FORM OF GIF T DEEDS, AFFIDAVITS, COPY OF PAN CARD, COPY OF INCOME TAX RETURN, COPY O F WEALTH TAX RETURN, COPY OF BALANCE SHEET ETC. THE GIFTS ARE TH ROUGH BANKING CHANNEL. THEREFORE, THE ONUS CASTS ON THE ASSESSEE IN TERMS OF SECTION 68 OF THE ACT REGARDING IDENTITY, GENUINENESS AND C REDITWORTHINESS IS DISCHARGED. BESIDES ON BOTH THE ISSUES, ALL THE REL EVANT DETAILS WERE FILED ALONGWITH RETURN OF INCOME. CONSEQUENTLY THE JUDGEMENT OF HON'BLE SUPREME COURT IN THE CASES OF CIT VS. RELI ANCE PETRO PRODUCTS (P) LTD. (SUPRA) AND EILLY LILLY & COMPANY , 312 ITR 225 ARE CLEARLY APPLICABLE. THUS RELYING ON THESE HON'B LE SUPREME COURT JUDGMENTS (SUPRA) AND OTHER JUDGMENTS, IN OUR CONSI DERED IT IS NOT A ITA NO.787/JP/2015 SHRI RAJ KUMAR JAIN, MADANGANJ VS. ITO,KISHANGAR H . 11 FIT CASE FOR IMPOSITION OF PENALTY QUA THE GIFTS RE CEIVED BY THE ASSESSEE WHICH IS DELETED. THUS THE APPEAL OF THE A SSESSEE IS ALLOWED 3.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 15 /04/20 16. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15 /04/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO:- 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAJ KUMAR JAIN, MADANGANJ 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, KISHANGARH 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 787/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR