SANGITHAA GUPTA, MUMBAI V. DCIT 8(2), MUMBAI

ITSSA 52/MUM/2011

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 7329 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 14-01-2015
• Assessment Year: misc
• Appeal Filed On: 23-09-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI P K BANSAL, VICE PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER IT(SS)A NO.52 /MUM/2011 (BLOCK PERIOD: 01.04.1989 TO 22.02.2000) MS. SANGITHAA GUPTA VS. DEPUTY COMMISSIONER OF C/O. MIDAS CARE PHARMACEUTICAL S PVT. LTD., GALA 14, PAPA INDL. ESTATE,SUREN ROAD, ANDHERI (E) MUMBAI 400093 INCOME TAX - 8(2) MUMBAI PAN AAEPG0734H APPELLANT RESPONDENT APPELLANT BY: MS.VASANTI PATEL RESPONDENT BY: SHRI MANJUNATHA SWAMY DATE OF HEARING: 30.10.2017 DATE OF PRONOUNCEMENT: 31.10.2017 O R D E R PER P.K. BANSAL, VICE PRESIDENT THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A)-17, MUMBAI DATED 20.06.2011. 2. THE ONLY ISSUE IN THIS APPEAL RELATES TO SUSTENANCE OF PENALTY LEVIED BY THE AO AMOUNTING TO ` 7,37,319/- UNDER SECTION 158BFA(2) OF THE INCOME TAX ACT. 3. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSI DERED THE SAME. WE NOTED THAT THE AO LEVIED THE PENALTY ON THE ASSE SSEE AMOUNTING TO ` 7,37,319/- ON THE ADDITION MADE IN THE INCOME OF TH E ASSESSEE AMOUNTING TO ` 11,17,150/- DETAILED AS BELOW: - (I) UNDISCLOSED CASH ` 3,60,900/- (II) UNEXPLAINED JEWELLERY ` 7,56,250/- WHEN THE MATTER WENT BEFORE THE CIT(A), THE CIT(A) CONFIRMED THE SAID PENALTY. 4. WE NOTED THAT THE ADDITION OF UNEXPLAINED JEWELLERY , WHEN THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A), WAS REDU CED TO ` 3,36,260/- VIDE IT(SS)A NO. 52/MUM/2011 MS. SANGITHAA GUPTA 2 HIS ORDER DATED 20.06.2011. THE LEARNED A.R. BEFORE US VEHEMENTLY CONTENDED THAT SO FAR THE ADDITION OF UNDISCLOSED C ASH IS CONCERNED THE ASSESSEE HAD MADE THE WITHDRAWAL FROM HIS BANK ACCO UNT WHICH IS SUFFICIENT TO COVER THE ADDITION OF THE UNDISCLOSED CASH. THE ADDITION RELATES TO THE DIFFERENCE BETWEEN CASH FOUND AND TH E CASH IN HAND AS PER THE BOOKS, THEREFORE THE SAID WITHDRAWAL CANNOT BE REGARDED TO BE A SOURCE. WITH REGARD TO THE OTHER ISSUE REGARDING AD DITION MADE AND SUSTAINED BY THE CIT(A) IN RESPECT OF THE JEWELLERY THE LEARNED A.R. BEFORE US VEHEMENTLY CONTENDED THAT THE SAID ADDITION HAS BEEN MADE AND SUSTAINED ON THE BASIS OF ESTIMATE OF VALUATION. WE FOUND FORCE IN THE SUBMISSION OF THE LEARNED A.R. ASSESSEE WE NOTED TH AT THE CIT(A) HAS ALSO REDUCED THE SAID ADDITION FROM ` 7,56,250/- TO ` 3,36,260/-. IN OUR VIEW EVEN UNDER SECTION 158BFA(2) PENALTY CANNOT BE LEVI ED IF THE ADDITION HAS BEEN MADE MERELY ON ESTIMATE BASIS. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO COMPUTE PENALTY LEV IABLE ON THE ASSESSEE UNDER SECTION 158BFA(2) ONLY IN RESPECT OF THE ADDI TION SUSTAINED FOR UNDISCLOSED CASH AMOUNTING TO ` 3,60,900/-. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2017. SD/ - SD/ - (PAWAN SINGH) (P.K. BANSAL) JUDICIAL MEMBER VICE PRESIDENT MUMBAI, DATED: 31 ST OCTOBER, 2017 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -17, MUMBAI 4. THE CIT - 8, MUMBAI 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.