Ssmt. Kusum Oswal, Vidisha V. The ACIT, Bhopal

ITSSA 101/IND/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8396 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 7 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-04-2011
• Assessment Year: misc
• Appeal Filed On: 21-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MITRA
• Assessee Lawyers: S S DESHPANDE
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C.SHARMA, ACCOUNTANT MEMBER PAN NO. : AAEPO2037R I.T.(SS)A.NO. 101/IND/2009 A.Y. : 1.4.1995 TO 12.12.2001 SMT.KUSUM OSWAL, ACIT, SADAR BAZAR, VS 2(1), GANJBASODA, VIDISHA BHOPAL APPELLANT RESPONDENT APPELLANT BY : SHRI S. S. DESHPANDE & RAJESH MEHTA, C. A. RESPONDENT BY : SHRI PRADEEP KUMAR MITRA, SR. DR O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 18.5.2009 IN THE MATTER OF IMPOSITI ON OF PENALTY U/S 158BFA(2) OF THE INCOME-TAX ACT, 1961. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. 3. BRIEF FACTS OF THE CASE ARE THAT THERE WAS A SEARCH AT THE ASSESSEES PREMISES. DURING THE COURSE OF ASSES SMENT, -: 2: - 2 ADDITION WAS MADE IN RESPECT OF 1358 GMS. OF GOLD O RNAMENTS. PENALTY WAS ALSO IMPOSED U/S 158BFA(2) FOR SUCH ADD ITION. PENALTY SO LEVIED WAS CONFIRMED BY CIT(A) AND ASSES SEE IS IN FURTHER APPEAL BEFORE US. CONTENTION OF THE ASSESSE E WAS THAT THIS GOLD ORNAMENTS DID NOT BELONG TO HER BUT TO HE R HUSBAND INASMUCH AS THE SAME HAS ALREADY BEEN SHOWN IN HIS WEALTH TAX RETURN. IN THE QUANTUM APPEAL FILED BEFORE THE LD. CIT(A), THE ADDITION SO MADE WITH RESPECT OF GOLD ORNAMENTS WERE DELETED BY THE LD. CIT(A). IN AN APPEAL FILED BY TH E REVENUE BEFORE THE TRIBUNAL, THE TRIBUNAL UPHELD THE ORDER OF THE AO. THE ASSESSEE FURTHER APPROACHED TO THE HON'BLE HIGH COURT AND THE HON'BLE HIGH COURT VIDE ORDER DATED 7.11.20 08, ADMITTED SUBSTANTIAL QUESTION OF LAW WITH REGARD TO ADDITION SO MADE IN RESPECT OF GOLD ORNAMENTS, WHICH READS AS U NDER :- WHETHER, THE TRIBUNAL IS JUSTIFIED IN NOT ACCEPTIN G THE STAND OF THE APPELLANT THAT 1358 GMS. OF GOLD ORNAMENTS DO NOT BELONG TO HER BUT TO HER HUSBAND INASMUCH AS THE SAME HAD ALREADY BEEN SHOWN AS SUCH IN HER WEALTH TAX RETURN ? 4. IT IS CLEAR FROM THE QUANTUM PROCEEDINGS AS NARRATE D ABOVE THAT QUESTION AS TO WHETHER ADDITION WITH RES PECT TO THE GOLD ORNAMENTS, WHICH DO NOT BELONG TO THE ASSESSEE SHOULD BE MADE IN HER HAND IS A DEBATABLE. IN SO FAR AS AD DITION MADE BY THE ASSESSING OFFICER WAS DELETED BY THE LD. CIT (A) AND IN -: 3: - 3 FURTHER APPEAL FILED BY THE REVENUE, THE TRIBUNAL U PHELD THE ORDER OF THE AO AND THE HON'BLE HIGH COURT IN THE A PPEAL FILED BY THE ASSESSEE ACCEPTED SUBSTANTIAL QUESTION OF LA W AS TO WHETHER TRIBUNAL WAS JUSTIFIED IN ADDING 1358 GMS. OF GOLD ORNAMENTS, WHICH DO NOT BELONG TO THE ASSESSEE BUT TO HER HUSBAND INASMUCH AS THE SAME HAS ALREADY BEEN SHOWN AS SUCH IN HIS WEALTH TAX RETURN, HAS BECOME A DEBATAB LE ISSUE. HON'BLE COORDINATE BENCH OF AHMEDABAD IN THE CASE O F RUPAM MERCANTILE, 91 ITD 1273, HELD THAT WHERE A PLEA OR CLAIM WHICH IS HELD BY THE HIGH COURT COULD HAVE GIVEN RI SE TO A SUBSTANTIAL QUESTION OF LAW, CANNOT BE TREATED TO B E FRIVOLOUS OR MALA FIDE SO AS TO ATTRACT LEVY OF PENALTY U/S 2 71(1)(C) OF THE INCOME-TAX ACT, 1961. IN THE INSTANT CASE BEFORE US , PENALTY WAS LEVIED BY THE ASSESSING OFFICER U/S 158BFA(2) W ITH REGARD TO THE GOLD ORNAMENTS ADDED BY THE ASSESSING OFFICE R IN HER INCOME. PENALTY U/S 158BFA(2) IS IN THE NATURE OF P ENALTY WHICH IS ALSO LEVIABLE U/S 271(1)(C) OF THE ACT. ME ANING THEREBY BOTH THE SECTIONS ARE PARI MATERIA AND IMPOSE PENAL TY FOR CONCEALMENT OF INCOME. HOWEVER, WHERE THE ADDITION SO MADE IS DEBATABLE, AS PER OUR CONSIDERED VIEW, NO PENALT Y SHOULD BE -: 4: - 4 LEVIED WITH RESPECT TO SUCH ADDITION. RECENTLY, I.T .A.T., MUMBAI BENCH IN THE CASE OF NAYAN BUILDERS & DEVELO PERS PRIVATE LIMITED VS. ITO, HELD THAT WHEN THE HON'BL E HIGH COURT ADMITS SUBSTANTIAL QUESTION OF LAW ON AN ADDI TION, IT BECOMES APPARENT THAT ADDITION IS CERTAINLY DEBATAB LE AND UNDER SUCH CIRCUMSTANCES, PENALTY CANNOT BE LEVIED U/S 271(1)(C) OF THE ACT. THE ADMISSION OF SUBSTANTIAL QUESTION OF LAW LEADS CREDENCE TO THE BONA FIDES OF THE ASSESSE E. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY JUSTIFICATION IN THE ORDER OF LOWER AUTHORITIES FOR LEVYING THE PENALTY. ACCORDINGLY, W E REVERSE THE ORDER OF LOWER AUTHORITIES AND ALLOW THE APPEAL IN FAVOUR OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 20 TH APRIL, 2011. SD/- SD/- (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20 TH APRIL, 2011. CPU* 204