The ITO, Ward-12(4), Ahmedabad V. Heena Bhanwarlal Sharma, Ahmedabad

ITSSA 465/AHD/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 8603 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 26-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Keywords: Gift; Business income; Income from undisclosed sources
• Section: 142(1); 153A; 133(6); 131; 132; 12; 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE SHRI D. K. TYAGI, JM AND SHRI A. MOHAN ALAN KAMONY, AM) IT(SS)A NO.465/AHD/2012 A. Y.: 2003-04 THE INCOME TAX OFFICER, WARD 12 (4), 1 ST FLOOR, ROOM NO.18, NARAYAN CHAMBER, NR. HOTEL PATANG, ASHRAM ROAD, AHMEDABAD 380 009 VS HEENA BHANWARLAL SHARMA, 8/85, NETAJINAGAR, NR. AMBAJI TEMPLE, MEBHANINAGAR, AHMEDABAD 380 016 P. A. NO. AMDPS 6419 E (APPELLANT) (RESPONDENT) APPELLANT BY SHRI Y. P. VERMA, SR. DR RESPONDENT BY NONE DATE OF HEARING: 23-11-2012 DATE OF PRONOUNCEMENT: 11-01-2013 O R D E R PER A. MOHAN ALANKAMONY: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE IMPUGNED ORDER OF THE LEARNED CIT (A)-XX, AHMEDABAD IN APPEAL NO. CIT(A)-XX/34/11-12 DATED 24 -07-2012, FOR THE ASSESSMENT YEAR 2003-04 PASSED U/S 250 READ WITH SE CTION 271(1) ( C) OF THE ACT. 2. THE CRUX OF THE ISSUE IN THE REVENUES TWO GROUN DS OF APPEAL IS THAT THE CIT (A) HAD ERRED IN CANCELING THE PENALTY OF RS.20,03,730/- LEVIED BY THE AO U/S 271(1)(C) OF THE ACT IN RESPEC T OF BOGUS GIFTS. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A N INDIVIDUAL EARNING INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SO URCES. NOTICE U/S 132 OF THE ACT WAS SERVED ON THE ASSESSEE IN RELATI ON TO SEARCH CONDUCTED 2 IN THE GROUP CASES OF ROYAL GROUP, SINCE THE ASSESS EE IS THE WIFE OF MR. B. G. SHARMA, THE MAIN PERSON OF THIS GROUP. NOTICE U /S 153A OF THE ACT WAS ALSO ISSUED TO THE ASSESSEE IN RESPONSE TO WHICH TH E ASSESSEE FILED HER RETURN OF INCOME ON 22-11-2005 DECLARING INCOME OF RS.58,470/- AND HAS ALSO SHOWN AGRICULTURAL INCOME OF RS.5,44,366/-. I N THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE LEARNED AO HAD ISSUED N OTICES U/S 143(2) AND 142(1) OF THE ACT ALONG WITH QUESTIONNAIRE ASKI NG THE ASSESSEE TO SUBMIT DETAILS WITH REGARD TO AGRICULTURAL ACTIVITI ES CARRIED OUT BY THE ASSESSEE SUCH AS - (I) SPECIFIC LOCATION AND SIZE OF THE LAND IRRIGATI ON (II) CROPS CULTIVATED ALONG WITH QUANTITY. PRODUCTI VITY OF THE FIELD WITH NECESSARY EVIDENCES (III) NAME AND ADDRESS OF THE PERSONS ENGAGED IN CU LTIVATION AND (IV) COPY OF LAND RECORDS SUCH AS 7/12 CERTIFICATE. IN RESPONSE THERETO, THE ASSESSEE SUBMITTED COPY OF THE SALE BILLS FROM THE FOLLOWING PARTIES AGAINST WHICH PAYMENTS WERE RECEI VED BY THE ASSESSEE IN CASH: SR. NO. NAME OF TRADER BILL NO. & DATE NAME OF PRODUCE AMOUNT (RS.) 1 M/S. PATEL PRAMUKHBHAI 620- 6/4/02 WHEAT 75,840 2 VIVEK ENTERPRISES 135- 15/4/02 CHNNA 63,000 3 -DO- 158- 22/4/02 -DO- 63,000 4 M/S. KAUSHALIYA ENTERPRISE 856- 15/10/02 BAJARA 57,225 5 -DO- 865 18/10/02 BAJARA 24,300 6 CASH SALES - - 925 7 M/S. PATEL PRAMUKHBHAI SHANKARLAL 2110 - 28,291 8 -DO- 2081 - 60,935 9 M/S. KAUSHALIYA ENTERPRISE 1526 - 28,900 10 -DO- 1522 - 59,500 11 M/S. PATEL PRAMUKHBHAI SANKARLAL 2578 - 38,250 12 -DO- 2575 - 44,200 3 THE ASSESSEE HAD SHOWN AGRICULTURAL ACTIVITY AT THE FARM HOUSE OF BHATT VILLAGE AND AMIYAPUR VILLAGE IN THE GANDHINAGAR DIS TRICT. THE LEARNED AO ISSUED NOTICE U/S 133(6) OF THE ACT FOR VERIFICATIO N OF GENUINENESS OF THE BILLS PRODUCED BY THE ASSESSEE. ON ENQUIRY, THE LE ARNED AO FOUND THAT THE BILLS PRODUCED BY THE ASSESSEE WERE NOT GENUINE. IN SOME INSTANCES NOTICE OF THE LEARNED AO WAS NOT RECEIVED BY THE PARTY AND IN SOME CASES NO REPLY WAS RECEIVED BY THE LEARNED AO. THE ASSESSEE COULD NOT MEET OUT WITH ANY ARGUMENTS WITH COGENT EVIDENCE IN ORDER TO ESTABLISH THE GENUINENESS OF THE CONCERN PARTIES. THEREFORE, THE LEARNED AO BASED ON THE REPLY OF THE ASSESSEES HUSBAND, SHRI BHANWARLA L SHARMA AND RELYING ON THE DATA PROCURED FROM THE DIRECTORATE OF GUJARA T STATE AGRICULTURAL DEPARTMENT ESTIMATED THE INCOME BY ADOPTING THE SAL E PRICE OF RS.8/- PER KG FOR WHEAT AND RS.7/- PER KG FOR BAJRI AND ARRIVE D AT THE TOTAL AGRICULTURAL INCOME AT RS.72,053/- WORKED OUT UNDER: CROP YIELD PER HECTARE (KG.) LAND (HECT.) PRODUCTION (KG.) AVERAGE SALE PRICE (RS.)/ PER KG. TOTAL AMOUNT (RS.) BAJRI 1264 1.92 2427 7 16,989/- WHEAT 3585 1.92 6883 8 55,064/- TOTAL 72,053/- FURTHER, SINCE THE ASSESSEE COULD NOT PRODUCE ANY D ETAILS OF THE AGRICULTURAL EXPENDITURE INCURRED BY HER FOR THE AB OVEMENTIONED AGRICULTURAL PRODUCE, LEARNED AO ESTIMATED THE AGRI CULTURAL EXPENSES AT 30% OF THE TOTAL SALES AND THEREBY COMPUTED THE NET AGRICULTURAL INCOME OF THE ASSESSEE AT RS.50,437/-. IN THE RETURN OF INCO ME THE ASSESSEE HAD SHOWN AGRICULTURAL INCOME OF RS.5,44,366/-, THEREFO RE, THE LEARNED AO TREATED THE AMOUNT OF RS.4,92,929/- (RS.5,44,366 - RS.50,437/-) AS BOGUS AGRICULTURAL INCOME AND ADDED THE SAME TO THE INCOM E OF THE ASSESSEE. 4 3.1 FURTHER, THE LEARNED AO OBSERVED THAT DURING TH E YEAR UNDER CONSIDERATION THE ASSESSEE HAD SHOWN RECEIPT OF GIF T OF RS.65,75,272/- FROM TOTAL 12 PERSONS OUT OF WHICH 11 GIFTS WERE R ECEIVED FROM MUMBAI PARTIES THROUGH 11 DEMAND DRAFTS ISSUED ON 21-03-20 03 WHICH WERE DEPOSITED IN THE ACCOUNT OF THE ASSESSEE DURING 24- 03-2003 TO 26-03- 2006. THE ASSESSEE ALSO RECEIVED ONE GIFT OF RS.4,7 5,272/- FROM ONE MR. MICHAEL GAGAS OF USA ON 28-01-2003. THE ASSESSEE W AS ASKED TO FURNISH THE DETAILS REGARDING NAME, ADDRESS, PAN, R ELATIONSHIP WITH THE ASSESSEE WITH THE DONOR, PERIOD OF ACQUAINTANCE, OC CASION/REASON FOR MAKING THE GIFTS AND CONFIRMATION ALONG WITH COPY O F GIFT DEED. THE ASSESSEE PRODUCED ALL THE DETAILS ALONG WITH COPY O F RETURN OF INCOME IN RESPECT OF ALL THE DONORS EXCEPT IN THE CASE OF MR. MICHAEL GAGAS. THE ASSESSEE COULD NOT FURNISH ANY DETAILS REGARDING TH E RELATIONSHIP OF THE DONEE AND THE DONOR AND THEIR PERIOD OF ACQUAINTANC E. IN RESPONSE TO THE NOTICE U/S 133(6) OF THE ACT, THE LEARNED AO DID NO T RECEIVE ANY REPLY FROM THE 11 DONORS CONFIRMING THE DONATION EXCEPT POSTAL CONFIRMATION RECEIVED FROM MR. MICHAEL GAGAS. THEREAFTER, THE LEARNED AO ISSUED SUMMONS U/S 131 OF THE ACT ON 26-10-2005 FOR PERSONAL APPEARANC E OF THE DONORS ON 08-11-2005 AND 08-03-2006, BUT NONE APPEARED. ON P ERUSAL OF THE RETURN OF INCOME OF THE DONORS, THE LEARNED AO OBSERVED TH AT INCOME SHOWN IN THE RETURN RANGES FROM RS.50,000/- TO RS.80,000/-. ACCORDINGLY, THE LEARNED AO TREATED THE TRANSACTION RELATING TO THE GIFTS AS NON-GENUINE. THE LEARNED AO, THEREFORE, RELYING ON THE DECISION OF I TAT AHMEDABAD BENCHES IN THE CASE OF ITO VS JAGDISH J. KANSAGARA, DR. (1998) 066 ITD 0381 (AHD.) TREATED THE GIFTS RECEIVED BY THE ASSES SEE FROM THE AFORESAID PARTIES AMOUNTING TO RS.65,75,272/- AS ASSESSEES UNACCOUNTED INCOME ROUTED BY WAY OF GIFTS WITH FOR AVOIDING TAXATION AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. THE LEARNED AO THUS, FI NALIZED THE ASSESSMENT ON 31-03-2006 DETERMINING TOTAL INCOME O F THE ASSESSEE AT 5 RS.71,27,671/- AND INITIATED PENALTY PROCEEDINGS U /S 271 (1) (C ) OF THE ACT. 3.2 DURING THE PENALTY A PROCEEDING, OPPORTUNITY WA S GIVEN TO THE ASSESSEE VIDE SHOW-CAUSE NOTICE DATED 14-03-2011 RE QUESTING THE ASSESSEE TO SUBMIT REPLY WITHIN 22-03-2011. THE ASS ESSEE DID NOT RESPOND TO THE SAME AND ACCORDINGLY, THE LEARNED AO HAD IMP OSED PENALTY OF RS.20,03,730/- VIDE HIS ORDER DATED 25-03-2011 BY HOLDING AS UNDER: THE CONTENTION OF THE ASSESSEE IS NOT TENABLE. THE HONBLE CIT(A) HAS ALSO DISMISSED THE APPEAL AND UPHELD THE DECISION OF THE ASSESSING OFFICER. AS PER THE PROVISIONS OF THE EXP LANATION 1 TO SEC. 271 (1) ( C ) - WHEREIN RESPECT OF ANY FACTS MATER IAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OFFERS AN EXPLANATION WHICH IS FOUND BY THE (ASSESSING OFFICER OR THE COM MISSIONER) TO BE FALSE, THEN THE AMOUNT ADDED OR DISALLOWED IN COMP UTING THE TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL, FO R THE PURPOSE OF CLAUSE ( C) OF THIS SUB SECTION BE DEEMED TO REPRES ENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. FRESH SHOW CAUSE NOTICE GRANTING OPPORTUNITY OF BEI NG HEARD FOR IMPOSING PENALTY WAS ISSUED ON 14/03/2011. THE SAME WAS SERVED ON 19/03/2011. REPLY WAS REQUESTED ON OR BEF ORE 22.03.2011. NOTHING IS HEARD FROM ASSESSEE IN RESPO NSE TO THIS NOTICE. HENCE, IT IS PRESUMED THAT THE ASSESSEE HAS NOTHING TO SAY MORE IN THIS REGARD. HENCE, I AM SATISFIED THAT ASSESSEE COMMITTED DEFAU LT FOR CONCEALING THE INCOME AND SUBMIT THE INACCURATE PAR TICULARS OF HIS INCOME I.E. THE SOURCES OF HIS CASH DEPOSIT WITH BA NK ACCOUNT. THEREFORE, PENALTY U/S 271 (1) ( C ) IS IMPOSED FOR RS.2,03,730/- (SIC. RS.20,03,730/-) AS AGAINST THE MAXIMUM PENALTY IMPO SABLE FOR RS.60,95,190/-. 3.3 SINCE IN THE PENALTY ORDER DATED 25-03-2011, TH E AMOUNT OF PENALTY IMPOSED WAS SHOWN AT RS.2,03,730/- DUE TO TYPOGRAPH ICAL MISTAKE, THE LEARNED AO VIDE HIS ORDER PASSED U/S 154 OF THE ACT DATED 17-04-2012 6 RECTIFIED THE SAID MISTAKE WITH THE CONSENT OF THE ASSESSEE AND IMPOSED PENALTY OF RS.20,31-730/-. THE RELEVANT PORTION OF THE SAID ORDER IS REPRODUCED HEREIN UNDER FOR REFERENCE: DUE TO TYPOGRAPHICAL MISTAKE, THE PENALTY ORDER WA S ISSUED FOR RS.2,03,730/- INSTEAD OF RS.20,31,730/-. A NOTI CE U/S 154 OF THE ACT WAS ISSUED AND SERVED TO THE ASSESSEE ON 30.03. 2012. THE AR OF THE ASSESSEE HAS GIVEN NO OBJECTION REMARK FOR PROPOSED RECTIFICATION. IN VIEW OF ABOVE, AS THE MISTAKE BEING APPARENT FRO M RECORD AND THE AR OF THE ASSESSEE HAS GIVEN HIS CONSENT TO THE PROPOSED RECTIFICATION PENALTY AMOUNT IS INCREASED FOR RS.20 ,31,730/- AS AGAINST RS.2,03,730/- IMPOSED EARLIER. PENALTY U/S 271 (1) (C) IS IMPOSED RS.20,31,7390/-. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARN ED CIT(A). THE LEARNED CIT(A) CONSIDERING THE SUBMISSIONS OF THE A SSESSEE AND RELYING ON THE ORDER OF HIS PREDECESSOR DATED 28-01-2011 AS WELL AS THE ORDER OF THE ITAT AHMEDABAD BENCHES DATED 20-04-2012 IN IT(S S)A NO.197/AHD/2009 CANCELLED THE PENALTY ON BOTH THE I SSUES. THE RELEVANT PORTION OF THE FINDINGS (PARA 3.3, 3.4 AND 3.5) OF THE LEARNED CIT(A) IS REPRODUCED HEREIN UNDER FOR REFERENCE: 3.3 IMPUGNED PENALTY WAS LEVIED WITH REFERENCE TO TWO ADDITIONS. THE FIRST ONE WAS PART OF THE AGRICULTURAL INCOME B EING TREATED AS INCOME FROM OTHER SOURCES TO THE TUNE OF RS.1,48,17 9/-. IN THIS CONNECTION, IT IS SEEN THAT IN THE RETURN OF INCOME APPELLANT ADMITTED AGRICULTURAL INCOME OF RS.5,44,366/-. IN THE ASSESS MENT ORDER AGRICULTURAL INCOME WAS DETERMINED AT RS.50,437/- A ND THE BALANCE AMOUNT OF RS.4,93,929/- WAS TREATED AS INCOME FROM UNDISCLOSED SOURCES. ON APPEAL, THIS AMOUNT WAS RESTRICTED TO R S.1,48,179/- BY THE CIT(A). IN THE IMMEDIATELY PRECEDING YEAR PENAL TY LEVIED ON IDENTICAL FACTS WAS DELETED BY MY PREDECESSOR VIDE ORDER DATED 28.01.2011 IN APPEAL NO. CIT(A)-XX/125/10-11 BY HOL DING AS UNDER: 7 3.3.(I) THE DISCUSSION ON FACTS MADE ABOVE SHOWS T HAT THE CLAIM OF THE APPELLANT HAD NOT BEEN PROVED TO B E FALSE. THUS IT IS SEEN THAT THE EXPLANATION OFFERED BY APP ELLANT REGARDING AGRICULTURAL INCOME HAD BEEN ACCEPTED BY THE ITAT. THE CLAIM MADE IN THE CURRENT YEAR IS NOT UNREASONA BLE LOOKING AT THE QUNTUM OF AGRICULTURAL INCOME SHOWN. IN VIEW OF THE ABOVE, THE PENALTY UNDER SECTION 271 (1) ( C ) IS NOT JUST IVIED. THE SAME IS DELETED. FACTS REMAINING THE SAME FOR THE YEAR UNDER CONSIDE RATION ALSO, I HOLD THAT NO PENALTY IS LEVIABLE WITH REFERENCE TO THE SAID AMOUNT OF AGRICULTURAL INCOME TREATED AS INCOME FROM UNDISCLO SED SOURCES, SINCE IT WAS ONLY ON ESTIMATE BASIS. 3.4 THE SECOND ADDITION WITH REFERENCE TO WHICH PEN ALTY WAS LEIVED WAS THE GIFTS RECEIVED OF RS.65,75,272/- TRE ATED AS UNDISCLOSED INCOME U/S. 68. THE SAID ADDITION WAS C ONFIRMED BY CIT(APPEALS). HOWEVER, IT IS SEEN THAT THE AHMEDABA D TRIBUNAL VIDE ITS ORDER DTD. 20.04.2012 IN IT(SS)A NO.197/AHD/200 9 DELETED THE ADDITION BY OBSERVING AS UNDER:- 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE ORD ERS OF THE AO AND THE CIT(A) AND ALSO JUDGMENTS CITED BY T HE PARTIES. FROM THE DETAILS FURNISHED BEFORE US, WE F IND THAT THE ASSESSEE HAS FURNISHED NECESSARY DETAILS LIKE CONFI RMATION LETTER, COPIES OF DD, GIFT DEED, COPY OF PAN CARD ( EXCEPT IN THE CASE OF MR. MICHAEL GAGAS OF USA), COPY OF ACKNOWLEDGEMENT OF RETURN ALONG WITH COMPUTATION AN D BALANCE SHEET. THESE DETAILS WERE ALSO BEFORE THE R EVENUE AUTHORITIES. THE DONORS (EXCEPT IN THE CASE OF MR. MICHAEL GAGAS OF USA) ARE ASSESSED TO TAX AND ALL THE GIFT TRANSACTIONS ARE THROUGH BANKING CHANNEL AND THEIR CONFIRMATIONS WERE ALSO FILED. THEREFORE, IDENTITY, CREDIT- WORTHINESS AND GENUINENESS OF THE TRANSACTIONS WERE PROVED. THE REVENUE COULD NOT BRING ANY CONCLUSIVE EVIDENCE , EXCEPT ALLEGING THAT ALLEGED DONORS COULD NOT BE PRODUCED TO ESTABLISH THAT THE GIFTS WERE BOGUS. WE FIND THAT O NLY THE LETTERS WERE ISSUED TO VARIOUS DONORS AND NO SUMMON S WERE ISSUED BY THE AO TO THEM. THE REVENUE ALSO COULD NO T BRING ANY MATERIAL ON RECORD TO ESTABLISH THAT THE ALLEGE D GIFTS ARE OUT OF ASSESSEES OWN FUNDS AND ARE COLORABLE DEVIC E TO EVADE TAX. MERELY BECAUSE THE DDS WERE CONSECUTIVEL Y 8 NUMBERED AND THE LANGUAGES IN THE GIFT WERE OF SIMI LAR AND MOSTLY INVENTORISED FROM THE SAME NOTARY, DOES NOT MEAN THAT THE GENUINENESS OF THE GIFTS ARE NOT PROVED. THE MO TIVATION OF THE GIFT TRANSACTION IS NOT RELEVANT AND WHAT IS RE LEVANT IS WHETHER THE PRIMARY ONUS RESTED WITH THE ASSESSEE H AS BEEN DISCHARGED OR NOT. THE DECISIONS CITED BY THE LEARN ED COUNSEL FOR THE ASSESSEE HELP THE CASE OF THE ASSESSEE, MOR E SO IN THE CASE OF MURLIDHAR LAHORIMAL (SUPRA) WHOSE RATIO IS APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE . IN THIS VIEW OF THE MATTER, WE ARE OF T HE VIEW THAT THE REVENUE AUTHORITIES ARE NOT JUSTIFIED IN MAKING ADDITION ON ACCOUNT OF GIFTS, AND ACCORDINGLY, RESPECTFULLY FOLLOWING THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF MURLIDHAR LAHORIMAL (SUPRA), THE ADDITION MADE BY THE AO AND CONFIRMED BY THE CIT(A) ON THIS ISSUE IS DELETED AND THIS GROUND OF THE ASSESSEE IS ALLOWED. PENALTY CANNOT SURVIVE ON ITS OWN. IN VIEW OF THE T RIBUNALS DELETING THE ADDITION, LEVY OF PENALTY WITH REFERENCE TO THE SAID AMOUNT IS UNSUSTAINABLE. 3.5 THUS PENALTY LEVIED WITH REFERENCE TO BOTH THE ADDITIONS IS NOT IN ACCORDANCE WITH THE FACTS OF THE CASE AND THE LA W. IMPUGNED PENALTY ORDER IS CANCELLED. THESE GROUNDS OF APPEAL ARE ALLOWED. 5. AGGRIEVED, THE REVENUE HAS COME UP WITH THE PRES ENT APPEAL. 6. DURING THE COURSE OF HEARING BEFORE US, THE LEAR NED DR RELIED ON THE ORDER OF THE LEARNED AO AND SUBMITTED THAT FROM THE FACTS OF THE CASE, IT WAS CLEAR THAT THE ASSESSEE HAD FURNISHED INACCURAT E PARTICULARS OF INCOME WITHIN THE MEANING OF SECTION 271(1) (C) OF THE ACT AND, THEREFORE, PENALTY WAS CLEARLY ATTRACTED. NONE APPEARED ON BEHALF OF T HE ASSESSEE. 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LEARNED DR AND PERUSED ORDERS OF THE AUTHORITIES BELOW. SINCE, THE FACTS AND THE ISSUES ARE CLEAR FROM THE MATERIALS PRODUCED BEFORE US, THOUGH NONE APPEARED ON BEHALF OF THE ASSESSEE, IT WAS DECIDED TO PROCEED WITH THE CASE EX-PARTE. THE LEARNED CIT(A) HAD DELETED THE P ENALTY FOR THE RELEVANT 9 ASSESSMENT YEAR IN REGARD TO AGRICULTURAL INCOME BE CAUSE IN THE QUANTUM APPEAL THE AGRICULTURAL INCOME DISCLOSED BY THE ASS ESSEE IN THE RETURN OF INCOME FOR RS.5,44,366/- WAS RESTRICTED TO RS.1,48, 179/- BY THE FIRST APPELLATE AUTHORITY. MOREOVER, ON IDENTICAL FACTS F OR THE IMMEDIATE PRECEDING YEAR PENALTY WAS DELETED BY THE TRIBUNAL. WITH RESPECT TO THE PENALTY LEVIED FOR THE ADDITION MADE FOR RS.65,75,2 72/- ON ACCOUNT OF BOGUS GIFTS THE LEARNED CIT(A) HAD DELETED THE PENA LTY SINCE IN THE QUANTUM APPEAL THE TRIBUNAL VIDE ITS ORDER DATED 2 0-04-2012 IN IT(SS)A NO.197/AHD/2009 HAD DELETED THE ADDITION. IN THESE CIRCUMSTANCES, IT IS OBVIOUS THAT THE PENALTY LEVIED BY THE LEARNED AO O N BOTH THE ISSUES CANNOT BE SUSTAINED BECAUSE THE TRIBUNAL HAS ACCEPT ED THE AGRICULTURAL INCOME AND ALSO DELETED THE ADDITION MADE ON ACCOUN T OF BOGUS GIFTS. THEREFORE, WE HEREBY DELETE THE PENALTY LEVIED BY T HE LEARNED AO FOR RS.20,03,730/- ON BOTH THE ISSUES DISCUSSED SUPRA. 8. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 11-01-2013 SD/- SD/- (D. K. TYAGI) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASSTT. REGISTRAR, ITAT, AHMEDABAD 10 1. DATE OF DICTATION: 26-12-12/07-01-13 DIRECT ON COMPUTER 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 07-01-13 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DISPATCH OF THE ORDER: