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

ITSSA 35/MUM/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7424 (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: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 21-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: USHA NAIR
• Keywords: Gift; Income from undisclosed sources; Corroborative evidences; Block assessment

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.:35/M/2011 ASSESSMENT YEAR : BLOCK PERIOD : 01.4.1995 TO 07.11.2001 SHRI KIRTI B. SANGHVI L/H. OF LATE SHRI BHAIDAS J. 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 THE ORDER DATED 25.1.2011 OF CIT(A) IN RELATION TO THE BLOCK ASSESSMENT. THE ONLY DISPUTE RAISED BY THE ASSESSEE IS REGARDING LEVY OF PENALT Y UNDER SECTION 158 BFA(2) FOR ADDITION TO THE UNDISCLOSED INCOM E DECLARED BY THE ASSESSEE. IT(SS)A NO.35/M/11 AY:BP:1.4.95 TO 7.11.01 2 2. THE FACTS IN BRIEF ARE THAT THERE WAS A SEARCH CONDUCTE D IN CASE OF THE ASSESSEE ON 7.11.2001 DURING THE COURSE OF WHICH UN ACCOUNTED GOLD/DIAMOND JEWELLERY AND SILVER ARTICLES WERE FOUND. IN THE BLOCK ASSESSMENT MADE UNDER SECTION 143(3)/158 BC, THE AO HAD M ADE THE FOLLOWING ADDITIONS :- I) UNACCOUNETD DIAMOND JEWELLERY RS.12,06,505/- II) UNACCOUNTED SILVER ARTICLES RS.2,32,698/- III) BALANCE UNDISCLOSED SILVER @ 40% RS .81,834/- IV) UNDISCLOSED GOLD JEWELLERY RS.8,42,990/- 2.1 IN APPEAL, CIT(A) DELETED THE ADDITIONS MADE BY THE AO IN RELATION TO GOLD JEWELLERY. IN RELATION TO DIAMOND JEWELLERY, CIT(A) AFTER CONSIDERING THE WEALTH TAX RECORDS AND VDIS DECLAR ATIONS MADE, ACCEPTED THE DIAMOND JEWELLERY OF 121.98 CARATS AGAINST DIAMOND JEWELLERY FOUND OF 141.04 CARATS. HE, THEREFORE, CONFIR MED THE ADDITION IN RESPECT OF 19.08 CARATS AMOUNTING TO RS.4,80,990/-. A S REGARDS SILVER, TOTAL SILVER FOUND WAS 66.373 KGS. OUT OF WHICH 31.053 KG WAS EXPLAINED AS DECLARED IN THE WEALTH TAX RETURNS AND B ALANCE SILVER OF 35.32.KGS. VALUED AT RS.2,32,698/- REMAINED UNEXPLAIN ED. IN RESPECT OF DECLARED SILVER ARTICLES OF 31.053 KGS VALUED AT RS.2, 04,586/-, THE AO NOTED THAT THERE WAS NO ONE TO ONE CO-RELATION OF SILVER ARTICLES DECLARED WITH RESPECT TO THOSE FOUND WHICH THE ASSESSEE EXPL AINED DUE TO REMAKING OF VARIOUS ITEMS BUT COULD NOT FILE REMAK ING BILLS IN ALL CASES. THE AO, THEREFORE, ADDED 40% OF DECLARED JEWELLE RY I.E. IT(SS)A NO.35/M/11 AY:BP:1.4.95 TO 7.11.01 3 RS.81,834/- AS UNEXPLAINED. CIT(A) NOTED THAT THE ASSESSE E HAD EXPLAINED THE UNDECLARED SILVER OF 35.32 KGS OUT OF DR AWINGS MADE FROM TIME TO TIME BUT NO DETAILS OF DRAWINGS WERE GIV EN EITHER BEFORE AO OR BEFORE HIM. CIT(A), THEREFORE CONFIRMED THE A DDITIONS MADE BY AO IN CASE OF SILVER ARTICLES. IN FURTHER, APPEAL THE TR IBUNAL NOTED THAT IN THE RECONCILIATION FILED BY THE ASSESSEE AND CONSIDERED BY CIT(A), THERE WAS OMISSION OF 16.953 CARATS OF DIAMOND JEWELLERY BELONGING TO SHRI V.V. SANGHVI (HUF). THE TRIBUNAL THEREFORE CORR ECTED THE MISTAKE AND CONFIRMED THE ADDITION ONLY IN RESPECT OF 2.13 CAR ATS OF DIAMOND JEWELLERY VALUED AT RS.53,745/-. THE TRIBUNAL ALSO UP HELD THE ADDITION MADE BY THE AO AND CIT(A) IN RELATION TO SILVER ARTI CLES VALUED AT RS.2,32,698/- AND RS.81,834/-. 2.2 THE AO HAD ALSO INITIATED PENALTY PROCEEDINGS UNDE R SECTION 158 BFA(2) IN RELATION TO THE ADDITIONS MADE TO THE UNDI SCLOSED INCOME. IN RESPONSE TO SHOW CAUSE NOTICE, THE ASSESSEE SUBMITTED THAT PE NALTY UNDER SECTION 158(2) WAS NOT AUTOMATIC AS HELD BY THE BA NGALORE BENCH OF THE TRIBUNAL IN THE CASE OF NEMICHAND VS. ACIT (93 TTJ 564) .BEFORE LEVY OF PENALTY, THE WHOLE CIRCUMSTANCES AND F ACTS OF THE CASE ARE TO BE CONSIDERED. IT WAS ALSO SUBMITTED THAT THE PR OVISIONS OF SECTION 158 BFA(2) WERE AKIN TO SECTION 271(1)(C) AS PE R WHICH PENALTY CAN BE LEVIED ONLY WHEN THE ASSESSEE HAD INTENTI ONALLY SOLD PARTICULARS OF INCOME OR FILED INACCURATE PARTICULARS OF INCOME. THERE IT(SS)A NO.35/M/11 AY:BP:1.4.95 TO 7.11.01 4 SHOULD BE CONSCIOUS OR WILLFUL CONCEALMENT OF INCOME FOR LE VY OF PENALTY. RELIANCE WAS PLACED ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF T. ASHOK PAI VS. CIT (292 ITR 11). IT WAS ALSO SUBMITTED THAT PENALTY PROCEEDINGS ARE DIFFERENT FROM ASSESSMENT PROCEEDINGS AND, THEREFORE, FINDINGS IN ASSESSMENT ORDER WERE NOT CONCLUSIVE FOR LEVY OF PENALTY. THE LD. AR FOR THE ASSESSE E ARGUED THAT ADDITIONS HAVE BEEN MADE ON ACCOUNT OF SILVER AND DIAMO ND JEWELLERY WHICH REMAINED UNDER THE DOMAIN AND CONTROL OF LADIES. IT IS COMMON KNOWLEDGE THAT SUCH ARTICLES ARE RECEIVED AS GIFT BY NEA R AND DEAR ONES AND ALSO PURCHASED BY LADIES AND, THEREFORE, SUCH ASSE TS WERE NOT BROUGHT ON RECORD AS ASSESSEE AND OTHER FAMILY MEMBER S WERE NO AWARE OF SUCH ACQUISITIONS. IT WAS ALSO SUBMITTED THAT N O UNACCOUNTED INCOME OTHER THAN JEWELLERY AND SILVER ARTICLES HAD BEE N FOUND DURING THE SEARCH. THESE HAD BEEN ACQUIRED FROM WITHDRAWAL IN THE PAST AND SOME OF IT WAS ALSO RECEIVED AS GIFT. IT WAS ARGUED THAT THE EXPLANATION OF THE ASSESSEE, CONSIDERING THE FACTS AND CIRCU MSTANCES OF THE CASE HAD TO BE ACCEPTED AND NO PENALTY WAS LEVIAB LE. THE AO HOWEVER, DID NOT ACCEPT THE CONTENTIONS RAISED. IT WAS OB SERVED BY HIM THAT THERE WAS NO EVIDENCE REGARDING PLEA OF THE ASSESSEE THAT UN-DISLCOSED JEWELLERY HAD BEEN ACCUMULATED OVER A PERIO D OF YEARS. FURTHER MERELY BECAUSE NO OTHER UN-ACCOUNTED INCOME WAS F OUND DURING SEARCH, COULD NOT BE BASIS TO HOLD THAT SOURCE OF J EWELLERY WAS IT(SS)A NO.35/M/11 AY:BP:1.4.95 TO 7.11.01 5 EXPLAINED. THE AO ALSO OBSERVED THAT JUDGMENT OF HON'B LE SUPREME COURT IN THE CASE OF T. ASHOK PAI VS. CIT (SUPRA) WAS NOT APPLICABLE IN CASE OF SECTION 158 BFA(2) AS THE SAME RELATED TO SECTION 2 71(1)(C). THE AO FURTHER OBSERVED THAT THE JEWELLERY FOUND WOU LD HAVE REMAINED UNACCOUNTED, HAD THE SEARCH NOT BEEN CONDUCTED IN CASE OF THE ASSESSEE. THE AO THEREFORE, LEVIED MINIMUM PENALTY @ 60 % OF CONCEALED INCOME WHICH CAME TO RS.2,58,107/-. 2.3 THE ASSESSEE DISPUTED THE DECISION OF AO AND SUBMITTE D BEFORE CIT(A) THAT THE ASSESSEE HAD GIVEN DETAILED EXPL ANATION WITH REGARD TO THE JEWELLERY AND SILVER ARTICLES FOUND WH ICH HAD NOT BEEN ACCEPTED. THE EXCESS DIAMOND/GOLD JEWELLERY WAS FOUND SMAL L. THERE WAS NO UNDISCLOSED INCOME WHICH WAS INVESTED IN JEWELLERY. THE EXCESS JEWELLERY REPRESENTED THE JEWELLERY RECEIVED FROM RELATIVES ON DIFFERENT OCCASIONS. IT WAS ALSO SUBMITTED THAT PENALTY U NDER 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 COULD BE IMPOSED IF THE EXPLANATION OF THE ASSESSEE WAS FOUND BONAFIDE. CIT( A) HOWEVER DID NOT ACCEPT THE CONTENTIONS RAISED. IT WAS OBSERVED BY HIM THAT EVEN IF THE PROVISIONS OF SECTION 271(1)(C) WERE FOLLOWE D, THE ASSESSEE COULD NOT PRODUCE EVIDENCE OF RECEIVING GOLD OR SILVER A S GIFT NOR COULD PROVE THE PURCHASE OF UNACCOUNTED ITEMS. THE ASSESSEE HAS NOT GIVEN ANY COGENT REASONS FOR NOT DISCLOSING THESE ASSETS IN THE BLO CK RETURN. IT(SS)A NO.35/M/11 AY:BP:1.4.95 TO 7.11.01 6 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 ITEMS TO SUB STANTIATE THE CLAIM. THE ASSESSEE GAVE ONLY GENERAL AND SUPERFLUOUS EXPLANATION WITHOUT ANY SUPPORTING EVIDENCE. THUS, EVEN FOLLOWING THE PROVISIONS OF SECTION 271(1)(C) PENALTY WAS LEVIABLE. CIT(A) ACCORD INGLY CONFIRMED THE PENALTY LEVIED BY AO AGGRIEVED BY WHI CH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL . 3. BEFORE US, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT MOST OF THE JEWELLERY ITEMS FOUND DURING SEARCH HAD BEEN EXPLA INED. THE GOLD JEWELLERY WAS FULLY EXPLAINED AND THE DIAMOND REMAIN ED UNEXPLAINED ONLY TO THE EXTENT OF 2.13 CARATS WHICH WAS SMALL. THE A DDITIONS SUSTAINED IN RELATION TO SILVER WAS ONLY ON ESTIMATE. TH E ASSESSEE HAD GIVEN EXPLANATION WHICH HAD NOT BEEN ACCEPTED. PENALTY CANNOT BE LEVIED ONLY BECAUSE THE EXPLANATION HAD NOT BEEN FOUN D SATISFACTORY. THE PENALTY UNDER SECTION 158 BFA(2) WAS NOT AUTOMATIC. THE EXPLANATION ON THE FACTS OF THE CASE HAS TO BE CONSIDERED AS BONAFIDE AND PENALTY SHOULD NOT BE LEVIED AS PROVISIONS OF SECTION 158 BFA(2) WERE SIMILAR TO PROVISIONS OF SECTION 271(1)(C) . THE LD. AR RELIED ON THE JUDGMENT OF HON'BLE HIGH COURT OF BOMBAY IN THE CA SE OF CIT VS DODSAL LTD. (312 ITR 112) FOR THE SAID PROPOSITION. IT WAS ACCORDINGLY URGED THAT THE PENALTY SHOULD BE DELETED. IT(SS)A NO.35/M/11 AY:BP:1.4.95 TO 7.11.01 7 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 RIGHT LY LEVIED. HE PLACED RELIANCE ON THE DECISION 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). 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% TO TAX LEVIABLE TO THREE TIMES THE TAX LEVIABLE IN RESPECT O F ADDITION MADE. IN THE PRESENT CASE, SUBSTANTIAL GOLD/DIAMOND JEWELLERY AN D SILVER ITEMS HAD BEEN FOUND AT THE TIME OF SEARCH CONDUCTED IN CASE OF THE ASSESSEE IN RESPECT OF WHICH ADDITIONS HAVE BEEN MADE IN TH E ASSESSMENT. THE CASE OF THE ASSESSEE HAD BEEN CONSIDERED AT THE LEVEL IT(SS)A NO.35/M/11 AY:BP:1.4.95 TO 7.11.01 8 OF CIT(A) AND ITAT AND FINALLY ADDITION HAD BEEN CON FIRMED BY THE TRIBUNAL IN RESPECT OF DIAMOND JEWELLERY OF 2.13 CARAT S VALUED AT RS.53,745/- AND SILVER ARTICLES VALUED AT RS.2,32,698/- AND RS.81,834/-. THE VARIOUS PLEAS RAISED BY THE ASSESSEE SUCH AS ITEMS OF GOLD/DIAMOND JEWELLERY BEING RECEIVED AS GIFTS FROM TH E FAMILY MEMBERS AND RELATIVE, VDIS DECLARATIONS MADE AND PURCHA SES 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. 4.1 THE LD. AR FOR THE ASSESSEE HAS ARGUED THAT PENALTY UNDE R 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 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 PROVI SIONS 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) IT(SS)A NO.35/M/11 AY:BP:1.4.95 TO 7.11.01 9 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 WILL, THEREFORE BE APPLICABLE IN CASE OF PENALTY UNDER SECTION 158 BFA(2). THE CASE OF PENALTY IS, THEREFORE, REQUIRED TO BE EVALUATED UNDER THE PROVISIONS OF EXPLANATION-1 TO SECTION 271(1) (C) AS PER WHICH THERE WILL BE A CASE OF PENALTY IF IN RESPECT OF A NY ADDITIONS MADE TO THE TOTAL, THE ASSESSEE OFFERS NO EXPLANATION O R EXPLANATION OFFERED IS FOUND TO BE FALSE OR THE ASSESSEE OFFERS EXPLAN ATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND IS ALSO NOT ABLE TO PROV E THAT THE EXPLANATION IS BONAFIDE AND ALL NECESSARY DETAILS HAVE BEEN GIVEN. 4.2 IN THIS CASE, PENALTY HAS BEEN LEVIED IN RELATION T O ADDITION ON ACCOUNT OF DIAMOND JEWELLERY AND SILVER ITEMS AS MENTI ONED EARLIER. IN RELATION TO DIAMOND JEWELLERY, AFTER CAREFULLY EXAMI NING THE WEALTH TAX RETURNS AND VDIS DECLARATION ETC. CIT(A) ACCEPTED THE DI AMOND JEWELLERY UP TO 121.98 CARATS AGAINST 141.04 CARATS ADDE D BY AO AND THUS CONFIRMED 19.08 CARATS VALUED AT RS.4,80,990/-. ON FURTHER EXAMINATION, THE TRIBUNAL ACCEPTED DIAMOND JEWELLERY OF 16.953 CARATS AS BELONGING TO SHRI B.V. SANGHVI, (HUF) AND CONFIRME D THE ADDITION TO THE EXTENT OF 2.13 CARATS VALUED AT RS.53,745/- AS NOT EXPLAINED. AS REGARDS SILVER, TOTAL SILVER FOUND WAS 66.373 KGS OUT OF WHICH DECLARED IT(SS)A NO.35/M/11 AY:BP:1.4.95 TO 7.11.01 10 IN THE RETURNS WAS ONLY 31.053 KGS. THUS SILVER OF 35.23 KGS VALUED AT RS.2,32,698/- REMAINED NOT EXPLAINED. IN RESPECT OF SI LVER DECLARED IN THE RETURNS ALSO THERE WAS NO ONE TO ONE MATCHING WITH RESPECT TO ITEMS FOUND DURING SEARCH AND THE ASSESSEE COULD ALSO NOT P RODUCE REMAKING BILLS IN ALL CASES AND THEREFORE, ADDITION HAD BEEN MADE ONLY @ 40% GIVING BENEFIT OF DOUBT TO THE ASSESSEE. THE ADDI TIONS HAVE BEEN CONFIRMED BOTH BY CIT(A) AND THE TRIBUNAL . THU S THE EXPLANATION OF THE ASSESSEE REGARDING DIAMOND JEWELLERY AND SILVER A RTICLES ADDED IS NOT SUBSTANTIATED. THE ASSESSEE HAS ALSO NOT GIVEN FULL P ARTICULARS OF ITEMS RECEIVED AS GIFT NOR THE DETAILS OF DRAWINGS AND SAVINGS FROM WHICH THESE COULD HAVE BEEN ACQUIRED. DIAMOND JEWELLERY ARE PRECIOUS ITEMS FULL DETAILS/PARTICULARS ARE REQUIRED TO BE KEPT BY ANYBODY. LADIES ARE PARTICULARLY CAREFUL ABOUT SUCH ITEMS AND IT CANNOT BE SAID THAT THEY WILL NOT BE ABLE TO EXPLAIN AS TO WHICH ITE MS WERE RECEIVED FROM WHERE. SILVER IS ALSO NOT A COMMON HOUSE HOLD ITEM THAT ONE WILL NOT BE ABLE TO GIVE FULL DETAILS/PARTICULARS OF ACQUI SITION AND SOURCES THEREOF. THE EXPLANATION OF THE ASSESSEE THEREFORE IN OUR VIEW CANNOT BE CONSIDERED BONAFIDE. THE LD. AR FOR THE ASSESSEE HAS A RGUED THAT PART OF THE ADDITIONS ON ACCOUNT OF SILVER HAD BEEN MAD E ON ESTIMATE @ 40% AND THEREFORE, NO PENALTY COULD BE LEVIED IN SUCH CASES. WE ARE UNABLE TO ACCEPT THE ARGUMENT. THE ASSESSEE WAS NOT AB LE TO MATCH THE ITEMS FOUND WITH THE ITEMS DECLARED IN THE WE ALTH TAX IT(SS)A NO.35/M/11 AY:BP:1.4.95 TO 7.11.01 11 RETURNS. STILL THE ASSESSEE HAD BEEN GIVEN RELIEF TO TH E EXTENT OF 60% IN RESPECT OF SUCH ITEMS AND ONLY 40% HAD BEEN ADDED. PE NALTY HAS TO BE LEVIED EVEN IN RESPECT OF ESTIMATED ADDITION ALSO AS HELD BY HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF CIT VS. B.P. PARMA R (341 ITR 499). PENALTY THEREFORE, IS LEVIABLE IN RESPECT OF AD DITIONS CONFIRMED BY THE TRIBUNAL. ACCORDINGLY WE CONFIRM THE ORDER OF CIT(A). 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. 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.