KIRTIB. SANGHVI, MUMBAI V. ACIT, CENT, CIR.33, MUMBAI

ITSSA 34/MUM/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7423 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 21-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: USHA NAIR
• Keywords: Gift; Corroborative evidences; Block assessment
• Section: 27; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI N.V. VASUDEVAN, J.M. AND SHRI RAJENDRA SINGH, A.M. IT(SS)A NO.: 34/M/2011 ASSESSMENT YEAR : BLOCK PERIOD : 01.4.1995 TO 07.11.2001 SHRI KIRTI B. SANGHVI 510, HIMALAYA HOUSE 79, PALTON ROAD MUMBAI-400 001. PAN NO. AAOPS 7167 L ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-33 MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI VIJAY MEHTA RESPONDENT BY : MS. USHA NAIR DATE OF HEARING : 17.5.2012 DATE OF PRONOUNCEMENT : 30.5.2012 O R D E R PER RAJENDRA SINGH, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER DATED 25.1.2011 OF CIT(A) IN RELATION TO THE BLOCK ASSESSMENT. THE ONLY DISPUTE RAISED BY THE ASSESSEE IN THIS APPEAL IS REGARDING LEVY OF PENALTY UNDER SECTION 158 BFA(2) OF THE INCOME TAX ACT . 2. THE FACTS IN BRIEF ARE THAT A SEARCH UNDER SECTION 132 (1) HAD BEEN CONDUCTED IN CASE OF THE ASSESSEE ON 7.11.2001 PURSUAN T TO WHICH A BLOCK ASSESSMENT ORDER HAD BEEN PASSED IN CASE OF T HE IT(SS)A NO. 34/M/11 A.Y.BP-1.4.95 TO 7.11.01 2 ASSESSEE UNDER SECTION 143(3)/158BC. IN THE SAID ASSESSMENT, THE AO HAD MADE TOTAL ADDITION OF RS.15,82,386/- TO THE UNDISCLOSED INCOME DECLARED BY THE ASSESSEE IN THE BLOCK RETURN AS PER DETAILS GIVEN BELOW :- (I) UNACCOUNTED DIAMOND JEWELLERY RS.6,59,125/- (II) UNACCOUNTED DIAMOND JEWELLERY RS.3,07,560/- (III) UNACCOUNTED DIAMOND JEWELLERY RS.79,950/- (IV) UNACCOUNTED GOLD/SILVER JEWELLERY/ARTICLES RS.2,26,959/- (V) UNACCOUNTED GOLD/SILVER JEWELLERY/ARTICLES RS.3,08,792/- TOTAL RS.15,82,386/- 2.1 IN APPEAL, CIT(A) GAVE PART RELIEF AND CONFIRMED THE ADDITION OF RS.4,82,146/- IN RESPECT DIAMOND JEWELLERY AND RS.2,26, 959/- IN RESPECT OF GOLD/SILVER JEWELLERY WHICH INCLUDED A SOME OF RS.4,258/- IN RESPECT OF SILVER ARTICLES. IN FURTHER APPEAL, ITAT ALLO WED FURTHER RELIEF OF RS.2,78,927/- IN RESPECT OF DIAMOND JEWELLERY AND CO NFIRMED ADDITION OF RS.2,03,219/- IN RELATION TO DIAMOND JEW ELLERY AND RS.2,26,959/- IN RESPECT OF GOLD/SILVER JEWELLERY. THE AO HAD ALSO INITIATED PENALTY PROCEEDINGS FOR PENALTY UNDER SECTION 158 BFA(2) IN RESPECT OF ADDITIONS MADE TO THE UNDISCLOSED INCOME DECLA RED BY THE ASSESSEE. 2.2 IN RESPONSE TO SHOW CAUSE NOTICE, THE ASSESSEE SUBMITTED T HAT PENALTY UNDER SECTION 158(2) WAS NOT AUTOMATIC AS HELD B Y THE IT(SS)A NO. 34/M/11 A.Y.BP-1.4.95 TO 7.11.01 3 BANGALORE BENCH OF THE TRIBUNAL IN THE CASE OF NEMICHAN D VS. ACIT (93 TTJ 564). BEFORE LEVY OF PENALTY, THE WHOLE CIRCU MSTANCES AND FACTS OF THE CASE ARE TO BE CONSIDERED. IT WAS ALSO SUBMITT ED THAT THE PROVISIONS OF SECTION 158 BFA(2) WERE AKIN TO SECTION 27 1(1)(C) AS PER WHICH PENALTY CAN BE LEVIED WHEN THE ASSESSEE HAD INTENTI ONALLY CONCEALED PARTICULARS OF INCOME OR FILED INACCURATE PARTI CULARS OF INCOME. THERE SHOULD BE CONSCIOUS OR WILLFUL CONCEALMENT OF INCOME FOR LEVY OF PENALTY. RELIANCE WAS PLACED ON THE JUDGMENT O F HON'BLE SUPREME COURT IN THE CASE OF T. ASHOK PAI VS. CIT (292 ITR 11). IT WAS ALSO SUBMITTED THAT PENALTY PROCEEDINGS WERE DIFFERENT FROM ASSESSMENT PROCEEDINGS AND, THEREFORE, FINDINGS IN ASSESSMENT ORDER ARE NOT CONCLUSIVE FOR LEVY OF PENALTY. THE LD. AR FOR THE ASSESSEE ARGUED THAT ADDITIONS HAD BEEN MADE ON ACCOUNT OF GOLD AND DIAMOND JEWELLERY WHICH REMAINED UNDER THE DOMAIN AND CONTROL OF LADIES. IT IS COMMON KNOWLEDGE THAT SUCH ARTICLES ARE RECEIVED AS GIFT BY NEAR AND DEAR ONES AND ALSO PURCHASED BY LADIES AND, THEREFORE, SUCH ASSETS WERE NOT BROUGHT ON RECORD AS ASSESSEE AND OTHER FAMILY MEMBERS WERE NOT AWARE OF SUCH ACQUISITIONS. IT WAS POINTED OUT THAT DIAMOND JEWELLERY OF 7.90 CARATS HAD BEEN RECEIVED AS GIFT FROM KANTILAL LAXMIDAS WALIA WHICH HAD NOT BEEN ACCEPTED BY THE DEPAR TMENT AND OUT OF DIFFERENCE IN GOLD JEWELLERY 490.100 GMS, 350. 100 GMS HAD BEEN RECEIVED AS GIFT FROM LATE SHRI BHAIDAS SANGHVI ON VARIOUS IT(SS)A NO. 34/M/11 A.Y.BP-1.4.95 TO 7.11.01 4 RELIGIOUS AND SOCIAL OCCASIONS. THIS EXPLANATION HAD ALSO NOT BEEN ACCEPTED. THE EXPLANATION OF THE ASSESSEE CONSIDERING THE F ACTS AND CIRCUMSTANCES OF THE CASE HAD TO BE ACCEPTED AND IN THAT CASE NO PENALTY WAS LEVIABLE. THE AO, HOWEVER, DID NOT ACCEPT THE CONTENTIONS RAISED. IT WAS OBSERVED BY HIM THAT THERE WAS NO EVIDEN CE REGARDING PLEA OF THE ASSESSEE THAT UN-DISLCOSED JEWELLERY HAD BEEN ACCUMULATED OVER A PERIOD OF YEARS. FURTHER, MERELY BECAUSE NO OT HER UN- ACCOUNTED INCOME WAS FOUND DURING SEARCH, COULD NOT BE TH E BASIS TO HOLD THAT SOURCE OF JEWELLERY WAS UN-EXPLAINED. THE AO ALSO OBSERVED THAT JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF T. ASHOK PAI VS. CIT (SUPRA), WAS NOT APPLICABLE IN CASE OF SECTION 158 BFA92) AS THE SAME RELATED TO SECTION 271(1)(C). THE AO FURTHER O BSERVED THAT THE JEWELLERY FOUND WOULD HAVE REMAINED UNACCOUNTED, HAD A SEARCH NOT BEEN CONDUCTED IN CASE OF THE ASSESSEE. THE AO THEREFOR E, LEVIED MINIMUM PENALTY @ 60% OF CONCEALED INCOME WHICH CAME TO RS.2,58,107/-. 2.3 THE ASSESSEE DISPUTED THE DECISION OF AO AND SUBMITTED BEFORE CIT(A) THAT THE ASSESSEE HAD GIVEN DETAILED EXPLANATION WITH REGARD TO THE JEWELLERY FOUND WHICH HAD NOT BEEN ACCEPTED. THE E XCESS DIAMOND/GOLD JEWELLERY WAS NEGLIGIBLE. THERE WAS NO U NDISCLOSED INCOME WHICH WAS INVESTED IN JEWELLERY. THE EXCESS JEWELL ERY REPRESENTED THE JEWELLERY RECEIVED FROM RELATIVES ON DIFFERENT IT(SS)A NO. 34/M/11 A.Y.BP-1.4.95 TO 7.11.01 5 OCCASIONS. IT WAS ALSO SUBMITTED THAT PENALTY UNDER SECTION 158 BFA(2) WAS NOT MANDATORY. THE PROVISIONS OF SECTION 158 BFA(2) WERE AKIN TO SECTION 271(1)(C) IN WHICH NO PENALTY CAN BE IMP OSED IF THE EXPLANATION OF THE ASSESSEE IS FOUND BONAFIDE. CIT(A) HO WEVER DID NOT ACCEPT THE CONTENTIONS RAISED. IT WAS OBSERVED BY HIM THAT EVEN IF THE PROVISIONS OF SECTION 271(1)(C) WERE FOLLOWED THE ASSESSEE CO ULD NOT PRODUCE EVIDENCE FOR RECEIVING GOLD OR SILVER AS GIFT N OR COULD PROVE THE PURCHASE OF UNACCOUNTED JEWELLERY. THE ASSESSEE HAD NOT GIVEN ANY COGENT REASONS FOR NOT DISCLOSING THESE ITEMS IN THE B LOCK RETURN. THE ASSESSEE HAD NOT FURNISHED EVIDENCE FOR RECEIVING GOLD AND SILVER FROM ANY OTHER PERSON NOR DID IT SUBMIT ANY DETAILS OF WITHDRAWALS FOR PROVING THE PURCHASES RELATING TO UNACCOUNTED JEWELLERY TO SUBSTANTIATE THE CLAIM. THE ASSESSEE GAVE ONLY GENERAL AN D SUPERFLUOUS EXPLANATION WITHOUT ANY SUPPORTING EVIDENC E. THUS EVEN FOLLOWING THE PROVISION OF SECTION 271(1)(C), PENALTY W AS LEVIABLE. CIT(A) ACCORDINGLY CONFIRMED THE PENALTY LEVIED BY AO AGGRIEVED BY WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL . 3. BEFORE US, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO EXCESS GOLD JEWELLERY IF THE ENTIRE FAMILY WAS CONSIDE RED TOGETHER WHICH FACT HAD BEEN NOTED BY THE AO. THERE WAS EXCESS GOL D FOUND IN CASE OF FATHER WHO AS PER HIS STATEMENT AT THE TIME OF SE ARCH HAD GIFTED GOLD JEWELLERY TO VARIOUS FAMILY MEMBERS AND, THEREFORE, IT(SS)A NO. 34/M/11 A.Y.BP-1.4.95 TO 7.11.01 6 EXPLANATION OF THE ASSESSEE THAT EXCESS JEWELLERY HAD BEEN RECEIVED AS GIFT HAS TO BE CONSIDERED AS BONAFIDE AND NO PENALTY I S TO BE LEVIED. IN RESPECT OF DIAMOND JEWELLERY, IT WAS SUBMITTED THAT DI AMOND JEWELLERY OF 7.90 CARATS HAD BEEN EXPLAINED AS RECEIVED AS GIFT FR OM DAUGHTER WHO HAD ALSO FILED CONFIRMATIONS WHICH HAD NOT BEEN ACCEP TED. THEREFORE, IT COULD NOT BE SAID THAT PENALTY COULD BE LEVIED ONLY BECAUSE EXPLANATION OF THE ASSESSEE HAD BEEN REJECTED. TH E EXPLANATION ON THE FACTS OF THE CASE HAS TO BE CONSIDERED AS BONAFIDE AND PENALTY SHOULD NOT BE LEVIED AS PER PROVISIONS OF SECTION 158 BFA(2) WHICH WERE SIMILAR TO PROVISIONS OF SECTION 271(1) (C) . THE LD. AR RELIED ON THE JUDGMENT OF HON'BLE HIGH COURT OF B OMBAY IN THE CASE OF CIT VS DODSAL LTD. (312 ITR 112) FOR THE SAID PROPO SITION. IT WAS ACCORDINGLY URGED THAT THE PENALTY SHOULD BE DELETED. 3.1 LD. DR ON THE OTHER HAND STRONGLY SUPPORTED THE O RDER OF AUTHORITIES BELOW. IT WAS SUBMITTED BY HIM THAT THE PE NALTY HAD BEEN LEVIED ONLY IN RESPECT OF ADDITIONS WHICH HAD BEEN SUSTA INED BY ALL AUTHORITIES INCLUDING ITAT. THE ASSESSEE COULD NOT SUBSTAN TIATE THE EXPLANATION NOR COULD THE EXPLANATION BE CONSIDERED AS BONAFIDE. PENALTY WAS THEREFORE, LEVIABLE AND HAD BEEN RIGHTLY LEVIED. HE PLACED RELIANCE ON THE DECISIONS OF THE TRIBUNAL IN THE CASE OF GUNANATH THAKOOR (132 ITD 319) AND ON THE JUDGMENT OF HON'BLE HIGH COURT OF GUJARAT IN CASE OF CIT VS. B.P. PARMAR (341 ITR 499). IT(SS)A NO. 34/M/11 A.Y.BP-1.4.95 TO 7.11.01 7 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE RIVAL CONTENTIONS CAREFULLY. THE DISPUTE IS REGARDING LEVY O F PENALTY UNDER SECTION 158 BFA(2) IN RELATION TO ADDITION MADE BY AO TO THE UNDISCLOSED INCOME RETURNED BY THE ASSESSEE IN THE BLOCK RE TURN. UNDER THE SAID PROVISIONS, IN CASE, AN ASSESSEE DOES NOT DISCLO SE FULLY THE UNDISCLOSED IN THE BLOCK RETURN AND ADDITION IS MA DE BY AO TO THE UNDISCLOSED INCOME, PENALTY IS LEVIABLE WHICH VARIES FROM 100% OF TAX LEVIABLE TO THREE TIMES THE TAX LEVIABLE IN RESPECT O F ADDITION MADE. IN THE PRESENT CASE, SUBSTANTIAL GOLD/DIAMOND JEWELLERY H AD BEEN FOUND AT THE TIME OF SEARCH CONDUCTED IN CASE OF THE ASSESSEE, IN RESPECT OF WHICH ADDITIONS HAVE BEEN MADE IN THE ASSESSMENT. THE CASE OF THE ASSESSEE HAD BEEN CONSIDERED AT THE LEVEL OF CIT(A) AND I TAT AND FINALLY ADDITION HAD BEEN CONFIRMED BY THE TRIBUNAL IN RESPECT OF DIAMOND JEWELLERY OF 7.14 CARATS VALUED AT RS.2,03,219 /- AND GOLD JEWELLERY OF 409.100GMS VALUED AT RS.2,22,701/- AND SI LVER ITEMS VALUED AT RS.4,258/-. THE VARIOUS PLEAS RAISED BY THE A SSESSEE SUCH AS ITEMS OF GOLD/DIAMOND JEWELLERY BEING RECEIVED AS GIFT S FROM THE FAMILY MEMBERS AND RELATIVES, VDIS DECLARATION MADE AND PURCH ASES MADE OUT OF ACCUMULATED SAVINGS HAD BEEN CAREFULLY EVALUATED AT TWO APPELLATE STAGES I.E. CIT(A) AND ITAT AND ADDITIONS HA D BEEN FINALLY CONFIRMED TO THE EXTENT MENTIONED ABOVE. IT(SS)A NO. 34/M/11 A.Y.BP-1.4.95 TO 7.11.01 8 4.1 THE LD. AR FOR THE ASSESSEE HAS ARGUED THAT PENALTY UNDER SECTION 158 BFA(2) IS NOT AUTOMATIC AND THE FACTS AND CIRCU MSTANCES OF THE CASE AND EXPLANATION GIVEN HAVE TO BE CAREFULLY CONSIDERED BEFORE LEVY OF PENALTY. IT HAS ALSO BEEN SUBMITTED TH AT PROVISIONS OF SECTION 158 BFA(2) ARE AKIN TO THE PROVISIONS OF SECTION 271(1)(C) AND, THEREFORE, PARAMETERS LAID BY COURTS IN RESPECT OF SECTION 271(1)(C) IN RELATION TO REGULAR ASSESSMENTS HAD TO BE FOLLOWED. RELI ANCE HAS BEEN PLACED ON THE JUDGMENT OF HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. DODSAL LTD. (312 ITR 112). THERE IS NO DISP UTE ABOUT THIS PROPOSITION. IN FACT CIT(A) HAS ACCEPTED THAT THE PROVISI ONS ARE NOT AUTOMATIC AND PARAMETERS OF SECTION 271 (1)(C) SHOULD BE FOLLOWED. IN RELATION TO SECTION 271(1)(C), IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT IN CASE OF DHARMENDRA TEXTILES AND PROCESSORS (306 ITR 277) THAT PENALTY UNDER SECTION 271(1)(C) IS ONLY A CIVIL L IABILITY MEANT FOR COMPENSATING LOSS OF REVENUE. IT HAS ALSO BEEN HELD THAT MENSREA OR WILLFUL CONCEALMENT IS NO LONGER REQUIRED TO BE PROVED BY THE REVENUE BEFORE LEVY OF PENALTY. THE SAID JUDGMENT OF HON'BLE SUPREME COURT ALSO APPLIES IN CASE OF PENALTY UNDER SECTION 158 BFA(2). THE CASE OF PENALTY IS, THEREFORE, REQUIRED TO BE EVALUATED UND ER THE PROVISIONS OF EXPLANATION-1 TO SECTION 271(1)(C) AS PER WHICH THERE WI LL BE A CASE OF PENALTY IF IN RESPECT OF ANY ADDITIONS MADE TO THE TOT AL, THE ASSESSEE OFFERS NO EXPLANATION OR EXPLANATION OFFERED IS FOUND TO BE FALSE OR THE IT(SS)A NO. 34/M/11 A.Y.BP-1.4.95 TO 7.11.01 9 ASSESSEE OFFERS EXPLANATION WHICH HE IS NOT ABLE TO SUBSTAN TIATE AND IS ALSO NOT ABLE TO PROVE THAT THE EXPLANATION IS BONAFI DE AND ALL NECESSARY DETAILS HAVE BEEN GIVEN. 4.2 IN THIS CASE, IN RELATION TO ADDITION ON ACCOUNT OF GOLD JEWELLERY, IT HAS BEEN SUBMITTED THAT SHORTAGE HAD BEEN FOUND IN CASE OF THE FATHER OF THE ASSESSEE AND EXCESS IN CASE OF THE SONS. IT H AS ALSO BEEN SUBMITTED THAT FATHER OF THE ASSESSEE AT THE TIME OF SEAR CH HAD STATED THAT THE SHORTAGE FOUND REPRESENTED GIFTS GIVEN TO VAR IOUS FAMILY MEMBERS. HOWEVER, IT IS TO BE NOTED THAT STATEMENT OF T HE FATHER WAS NOT SUPPORTED BY ANY GIFT TAX PAID NOR FULL DETAILS/ PARTICULARS OF ITEMS GIFTED HAD BEEN GIVEN. MOREOVER, AS NOTED BY CIT(A) IN THE REPLY DATED 24.11.2003, THE ASSESSEE HAD ADMITTED THAT THE JEWELLE RY FOUND WAS 2158.100 GMS AND JEWELLERY DECLARED IN THE WEALTH TAX RETURN TILL 1992-93 WAS 1688 GMS AND THUS BALANCE JEWELLERY OF 490. 10 GMS WAS ADMITTED AS UNEXPLAINED. DURING THE APPELLATE PROCEED INGS AS NOTED BY CIT(A), THE ONLY ADDITIONAL POINT MADE BY THE ASSE SSEE WAS THAT 140 GMS JEWELLERY HAD BEEN DECLARED IN VDIS BUT NO VD IS CERTIFICATE HAD BEEN PRODUCED AND EVEN IF VDIS DECLARATION WAS MA DE, THE JEWELLERY DECLARED THEREIN HAD MERGED WITH THE JEWEL LERY DECLARED IN THE RETURNS FOR ASSESSMENT YEAR 1992-93. THEREFORE, THE JEWELLERY OF 490.10 GMS VALUED AT RS.2,22,701/- REMAINED UNEXPLAIN ED AND WAS CONFIRMED BY CIT(A) AS WELL AS TRIBUNAL. IN RELATION T O DIAMOND IT(SS)A NO. 34/M/11 A.Y.BP-1.4.95 TO 7.11.01 10 JEWELLERY, THE CLAIMS OF THE ASSESSEE RELATING TO JEWELLE RY DECLARED IN THE WEALTH TAX RETURNS, IN THE VDIS DECLARATIONS AND P URCHASES MADE HAD BEEN DULY CONSIDERED AND ACCEPTED TO THE EXTENT OF 56.76 CARATS BY CIT(A). CIT(A) HAD NOT ACCEPTED THE CLAIM OF PURCHASE OF 9.80 CARATS AS PAYMENT FOR THE SAME HAD BEEN MADE AFTER THE DATE OF SEARCH. THE TRIBUNAL, HOWEVER ACCEPTED THE CLAIM OF PURC HASE OF 9.80 CARATS. HOWEVER, THE CLAIM OF GIFT OF 7.90 CARATS HAD NOT BEEN ACCEPTED AS THERE WAS NO SUPPORTING EVIDENCE FILED IN THE FORM O F GIFT TAX RETURN ETC.. THE TRIBUNAL, THEREFORE, CONSIDERED IT AS AN AFTE RTHOUGHT. THUS ADDITIONS FINALLY CONFIRMED WAS OF 7.14 CARATS OF DIAMON D VALUED AT RS.2,03,219/- WHICH REMAINED FINALLY UNEXPLAINED. 4.3 IT IS THUS CLEAR THAT THE EXPLANATION GIVEN BY T HE ASSESSEE HAS NOT BEEN SUBSTANTIATED. THE EXPLANATION OF THE ASSESSEE CANNOT BE CONSIDERED AS BONAFIDE AS DIAMOND/ GOLD JEWELLERY ARE P RECIOUS ITEMS WHICH ARE CAREFULLY KEPT BY ANY PERSON AND IT CANNOT BE ACCEPTED THAT A PERSON WILL NOT KEEP ACCOUNTS OF THE SAME. NO DETAILS/ PARTICULARS OF JEWELLERY RECEIVED AS GIFT HAD BEEN GIVEN NOR THE SAME IS SUPPORTED BY GIFT TAX RETURNS. IT HAS BEEN SUBMITTED THAT THE DAUG HTER HAD FILED CONFIRMATION REGARDING GIFT OF DIAMOND JEWELLERY TO THE ASSESSEE BUT NO SUCH CONFIRMATION IS PRODUCED BEFORE US. MOREOVER, BE ING A CLOSE FAMILY MEMBER MERE CONFIRMATION EVEN IF GIVEN IS NOT ENOUGH. THERE IS NO SUPPORTING EVIDENCE IN THE FORM OF GIFT TAX RETURN NOR THERE ARE IT(SS)A NO. 34/M/11 A.Y.BP-1.4.95 TO 7.11.01 11 DETAILS OF PURCHASE OF ITEMS GIFTED OR THE SOURCE THEREOF . CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, EXPLANATION OF THE ASSESSEE WITH REGARD TO ADDITION IN RELATION TO GOLD/DIAMOND JEWELLERY CANNOT BE CONSIDERED AS BONAFIDE. HOWEVER, IN CASE OF SILVER ITEMS T HE AMOUNT BEING SMALL (RS.4258/-) IT WILL NOT BE APPROPRIATE TO LEVY PENALTY IN RESPECT OF SUCH ADDITION. HOWEVER, FOR THE REASONS GIVEN E ARLIER, WE CONFIRM PENALTY IN RELATION TO GOLD/DIAMOND JEWELLER Y. 5. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.5.2012. SD/- SD/- (N.V. VASUDEVAN) JUDICIAL MEMBER (RAJENDRA SINGH) ACCOUNTANT MEMBER MUMBAI, DATED:30.5.2012. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.