DEEPAK JHUNJHUNWALLA, MUMBAI V. ITO 20(2)(1), MUMBAI

ITA 95/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83604 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 14-07-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 03-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S A TINWALA
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI .. , , BEFORE SHRI B. R. BASKARAN, ACCOUNTATN MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./ I.T.A. NO. 95/MUM/2013 ( / ASSESSMENT YEAR: 2005-06) DEEPAK JHUNJHUNWALA SANJAY BLDG. NO. 7, 1 ST FLOOR, MITTAL INDUSTRIAL ESTATE, SAKINAKA, ANDHERI (E), MUMBAI-400 049 / VS. INCOME TAX OFFICER 20(2)(1) BKC, MUMBAI ! ./' ./PAN/GIR NO. AAIPJ 7462 R ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) !# & ' / APPELLANT BY : SHRI S. A. TINWALA $%!# & ' / RESPONDENT BY : SHRI DURGA DUTT ( )* & +, / DATE OF HEARING : 14.07.2014 -./0 & +, / DATE OF PRONOUNCEMENT : 27.08.2014 1 / O R D E R PER SANJAY GARG, JUDICIAL MEMBER : THE PRESET APPEAL HAS BEEN PREFERRED BY THE ASSESSE E AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-31, MUMBAI (C IT(A) FOR SHORT) DATED 01.11.2012, AGITATING THE CONFIRMATION OF PENALTY O F RS.5,72,291/- U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR TH E ASSESSMENT YEAR (A.Y.) 2005-06. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.86,880/-, HOWEVER, THE ASSESSING OFFICER (A.O.) ASSESSED THE SAME AT RS.23,36,878/-, MAKING ADDITIONS OF RS.10 LACS U/S. 68 ON ACCOUNT OF UNEXPLAINED CASH 2 ITA NO. 95/MUM/2013 (A.Y. 2005-06) DEEPAK JHUNJHUNWALA VS. ITO DEPOSIT IN THE BANK ACCOUNT AND FURTHER OF RS.12,50 ,000/- ON ACCOUNT OF UNEXPLAINED GIFTS. THE PENALTY PROCEEDINGS WERE ALSO INITIATED. IN THE QUANTUM APPEAL BEFORE THE LD. CIT(A), THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE A .O. ON THE ISSUE OF UNEXPLAINED CASH DEPOSIT OF RS.10 LACS IN THE BANK ACCOUNT. FURTHER, IN RESPECT OF THE ADDITIONS ON ACCOUNT OF UNEXPLAINED GIFT, THE LD. CIT(A) AFTER GOING THR OUGH THE FACTS AND EVIDENCES AVAILABLE ON FILE, SUSTAINED THE ADDITION TO THE EXTENT OF RS .7 LACS AND DELETED THE REMAINING ADDITION OF RS.5,50,000/-. THE ASSESSEE DID NOT AGI TATE THE MATTER FURTHER IN APPEAL. THEREAFTER, THE A.O. LEVIED THE PENALTY ON THE AMOU NT OF ADDITIONS SUSTAINED BY THE LD. CIT(A) AT THE RATE OF 100% OF THE AMOUNT OF TAX SOU GHT TO BE AVAILED IT, WHICH COME OUT TO BE RS.5,72,291/-. IN APPEAL, THE LD. CIT(A) CONF IRMED THE PENALTY SO LEVIED BY THE A.O. THE ASSESSEE IS THUS IN FURTHER APPEAL BEFORE US. 3. WE HAVE HEARD THE LD. REPRESENTATIVES AND HAVE A LSO GONE THROUGH THE ASSESSMENT ORDER, ORDER OF THE LD. CIT(A) IN QUANTUM APPEAL AS WELL THE PENALTY ORDER OF THE A.O. AND FURTHER THE IMPUGNED ORDER AND THE OTHER MATERIAL O N RECORD. THE CONTENTION OF THE LD. AUTHORIZED REPRESENTATIVE (AR) BEFORE US HAS BEEN T HAT IN THE QUANTUM APPEAL, THE LD. CIT(A) HAS GIVEN PART RELIEF RELATING TO THE ADDITI ONS MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED GIFTS. HE HAS FURTHER SUBMITTED THAT SI NCE THE ISSUE OF ALLOWABILITY/ADDITIONS WAS A DEBATABLE ISSUE AND TWO VIEWS WERE POSSIBLE, HENCE, THE LEVY OF PENALTY WAS NOT JUSTIFIED IN THIS CASE. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) HAS RELIED UPON THE FINDINGS OF THE LOWER AUTHORITIES. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE LD. REPRESENTATIVES. A PERUSAL OF THE ASSESSMENT ORDER AS WELL AS THE APPELLATE ORDER IN THE QUANTUM APPEAL REVEALS THAT NOT ONLY SUFFICIENT OPPORTUNITIES WERE GRANTED BY THE C ONCERNED INCOME TAX AUTHORITIES TO THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSA CTIONS BUT THEY HAD ALSO EXAMINED VARIOUS DOCUMENTS AND EVIDENCES ON RECORD. EVEN THE BANK ACCOUNTS, CASH BOOK OF SHRI SURESH JHUNJHUNWALA, THE FATHER OF THE ASSESSEE FRO M WHOM THE ASSESSEE HAS CLAIMED TO HAVE RECEIVED THE AMOUNT OF RS.10 LACS, WHICH WAS F OUND DEPOSITED IN HIS ACCOUNT, WERE EXAMINED. EVEN THE A.O. HAD APPOINTED WARD INSPECTO R TO VERIFY THE GIFT TRANSACTIONS. 3 ITA NO. 95/MUM/2013 (A.Y. 2005-06) DEEPAK JHUNJHUNWALA VS. ITO AFTER GOING THROUGH THE ENTIRE ADDITIONS AND GIVING THE ASSESSEE PROPER OPPORTUNITY TO REPRESENT HIS CASE, THE A.O. MADE THE ADDITIONS, TH E LD. CIT(A) AT HIS OWN LEVEL HAD ALSO GONE THROUGH THE NECESSARY EVIDENCES ON THE FILE AN D ULTIMATELY FOUND THAT THE ASSESSEE FAILED TO GIVE REASONABLE EXPLANATION REGARDING THE DEPOSIT OF CASH, RECEIPTS OF GIFTS TOTALLY RS.17 LACS. 5. THE LD. AR OF THE ASSESSEE HAS ALSO FAILED TO CO NVINCE US AS TO THE GENUINENESS OF THE TRANSACTIONS IN QUESTION. WE MAY OBSERVE THAT S O FAR THE DEPOSIT OF RS.10 LACS IN THE BANK ACCOUNT OF THE ASSESSEE IS CONCERNED, THE ASSE SSEE HAS FAILED TO GIVE PROPER EXPLANATION. EVEN THE SAID AMOUNT OF RS.10 LACS, WH ICH THE ASSESSEE HAS ALLEGED TO HAVE BEEN RECEIVED FROM HIS FATHER IN CASH, WAS RETUNED ON THE SAME DAY BY HIM THROUGH ACCOUNT PAYEE CHEQUE. HENCE, THE VERY RECEIPT OF TH E AMOUNT IN CASH FROM HIS FATHER IS DOUBTFUL. EVEN THE LD. CIT(A) HAS ALSO GONE THROUGH THE BANK ACCOUNT OF THE FATHER OF THE ASSESSEE TO FIND THAT SUFFICIENT CASH WAS NOT AVAIL ABLE IN HIS CASH BOOK BEFORE THE ALLEGED PAYMENT/DEPOSIT OF THE SAME INTO THE ACCOUNT OF THE ASSESSEE. THE SOURCE, I.E., THE AMOUNT IN THE HANDS OF THE FATHER HAS ALSO NOT BEEN PROPER LY PROVED. SIMILARLY, THE ASSESSEE HAS FAILED TO GIVEN A CONVINCING EXPLANATION REGARDING THE GIFT TRANSACTION IN QUESTION. UNDER SUCH CIRCUMSTANCES, IT APPEARS TO BE A CASE O F FURNISHING OF INACCURATE PARTICULARS OF INCOME FOR THE PURPOSE OF CONCEALMEN T OF INCOME. HENCE, IN OUR VIEW, THE PENALTY HAS BEEN RIGHTLY LEVIED BY THE LOWER AUTHOR ITIES. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE AND THE SAME IS HEREBY DISMISSED. 6. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. 20+3 42+ & 2 & + 56 ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 27, 20 14 SD/- SD/- (B. R. BASKARAN) (SANJAY GARG) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ( * MUMBAI; 7 DATED : 27.08.2014 4 ITA NO. 95/MUM/2013 (A.Y. 2005-06) DEEPAK JHUNJHUNWALA VS. ITO ). ../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. ( 8+ ( ) / THE CIT(A) 4. ( 8+ / CIT - CONCERNED 5. ;) $+ <4 , , <4 0 , ( * / DR, ITAT, MUMBAI 6. =* / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ( * / ITAT, MUMBAI